McNamee v Partridge [1959] HCA 43; (1959) 101 CLR 384 (4 September 1959)

HIGH COURT OF AUSTRALIA

McNAMEE v. PARTRIDGE [1959] HCA 43; (1959) 101 CLR 384

Workers' Compensation (N.S.W.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Worker - Employed by contractor - Contract to erect fence and to fell timber for posts and strainers - Injury to worker - Worker deemed employee of principal of contractor - Whether worker's right to seek compensation from contractor taken away or whether additional right against principal conferred - Workers' Compensation Act 1926-1954 (N.S.W.), s. 6 (5) (a):

HEARING

Sydney, 1959, April 28; September 4. 4:9:1959
APPEAL from the Supreme Court of New South Wales.

DECISION

The following written judgments were delivered:-
DIXON C.J. In my opinion the appeal should be allowed and the question in p388)

McTIERNAN J. This appeal raises a question as to the extent of the implications, so far as a worker is concerned, of a short but obscure provision of s. 6 (5) (a) of the Workers' Compensation Act 1926-1954. The provision is: "the contractor and any worker so employed by him shall for the purposes of the Act be deemed to be employed by the principal". It is clear enough that these words imply that the worker and the contractor respectively have a right under the Act to claim compensation from the principal although he is not, in fact, party to a contract of service with either of them. So far as the contractor is concerned this anomalous right to compensation under the Act is his only right of that kind. But is this also the case with the worker? He has a contract of service with the contractor, who is his employer, and the continuance of that contract is fundamental to the provision, for it speaks of any worker employed by the contractor. In my opinion, it would strain the words of the provision too far to construe them as meaning that, not only is the worker deemed to be employed by the principal, but also that the contract of service which he has with his employer should be deemed not to exist for the purposes of the Act. I take the view that it is not intended that when a worker is within the protection of s. 6 (5) (a) that should be his only cover. Section 7 under which he has a right to claim compensation from his employer, is not expressly qualified by reference to s. 6 (5) (a). The Act does not deal with the consequences of a worker being within the protection of both s. 6 (5) (a) and s. 7. It does not seem to me that it is in accordance with the language of the provision of s. 6 (5) (a) that this twofold protection could not have been intended. But I think that it may fairly be presumed that the Act does not intend by anything in either s. 6 (5) (a) or s. 7 that the worker should recover compensation twice for the same injury, that is from both his employer and his employer's principal. Upon the facts found by the case stated the appellant is brought within s. 7 and the award, in my opinion, should therefore be confirmed. For these reasons I would allow the appeal. (at p389)

KITTO J. This is an appeal against an order made by the Full Court of the Supreme Court of New South Wales on a case stated by the Workers' Compensation Commission of New South Wales. The commission had made an award of compensation under the provisions of the Workers' Compensation Act 1926-1954 (N.S.W.) in favour of the present appellant and against the present respondent, on the footing that the appellant was a worker employed by the respondent at the time when, as the commission found, he received an injury which resulted in incapacity for work. The case stated submitted to the Supreme Court the question whether the commission had erred in law in holding that at the relevant time the appellant was a worker employed by and was in the course of his employment with the respondent. (at p389)

2. The appellant received his injury while cutting a tree for the purpose of obtaining posts and strainers which were required for the erection of a boundary fence between the property of a man named Ralston and the property of a man named Carter. He was doing this work under a contract of service into which he had entered with the respondent. According to ordinary conceptions he was a worker employed by the respondent and received his injury in the course of his employment by the respondent. The question to be determined is whether, having regard to some further facts, a conclusion in the opposite sense is required by the application of par. (a) of s. 6 (5) of the Act. (at p389)

3. The general purpose of the Act, as appears from s. 7, is to entitle a worker who has received an injury (as defined by s. 6), and in the case of his death his dependants, to receive compensation from his employer. "Worker" is defined by sub-s. (1) of s. 6 to mean a person who has entered into or works under a contract of service or apprenticeship with an employer (subject to certain exceptions), and by a number of later sub-sections situations are described in which persons who, according to this definition, would not be workers and the employers of such persons are nevertheless to be considered for the purposes of the Act as standing in the mutual relationship of workers and employers. It is upon the construction of one of these sub-sections, sub-s. (5), that the question before us depends. (at p389)

4. The material provision of the sub-section is in par. (a). It applies where a person (referred to as the principal), in the course of or for the purposes of his trade or business, enters into a contract, agreement or arrangement, of any of certain specified kinds, with any other person (referred to as the contractor), and the contractor neither sublets any part of the work to be carried out nor employs a worker, or, although either subletting part of the work or employing a worker, actually performs part of the work himself. In such a case the paragraph provides that "the contractor and any worker so employed by him shall, for the purposes of this Act, be deemed to be workers employed by the principal". One of the kinds of contracts referred to is that under which "the contractor agrees to supply timber, and such timber is obtained, or to be obtained, from trees felled, or to be felled, by the contractor (whether such trees are the property of the principal or the contractor or any other person)". Another is that under which "the contractor agrees to fell trees". (at p390)

5. Before the Workers' Compensation Commission, the respondent contended that par. (a) applied to the case on the footing that Ralston and Carter were the principals and he was the contractor; and he submitted that in consequence of its application the appellant was to be deemed, for the purposes of the Act, not only to be a worker employed by Ralston and Carter, but not to be a worker employed by him. The contention was rejected, and in order to carry it on appeal to the Full Court the respondent obtained the case stated which is now before us. It was his obligation to see that the case set out specific findings of all the facts needed to raise the point of law. He did not do so. Some of the relevant facts are left to inference, and inferences are to be drawn by the tribunal which states the case, not by the court to which it is stated. On the other hand, some unnecessary detail was included; and, I may add, although the case was not one in which it was appropriate to include a transcript of the evidence (since only the facts found by the commission, and not the evidence proving them, were relevant to the question submitted to the Supreme Court), it was included. In this instance, the Supreme Court did not require the case to be restated, no doubt because the relevant facts were undisputed and it was so easy to see what findings the case should have contained that the better course was to decide the point of law as if the case had been properly drawn. (at p390)

6. Proceeding in the same way, we may take the following facts as established, in addition to those already mentioned. Ralston and Carter entered into a contract with the respondent in the course of or for the purposes of their respective businesses - apparently they were graziers. It was a contract for the erection of boundary fencing between the respective properties of Ralston and Carter, and it required the respondent to cut, from trees felled or to be felled on one or other of the properties, the posts and strainers necessary for the fencing. The respondent employed the appellant in the work involved in his carrying out of the contract, but he performed part of that work himself. (at p391)

7. The contract, in my opinion, was within each of the kinds which are mentioned above as being included amongst those referred to in s. 6 (5) (a). In the Supreme Court it was regarded as a contract by which the respondent agreed to fell trees. Assuming that I have stated correctly the facts which should have been set forth in the case, I see nothing wrong with this view of the contract. True, the felling of trees was not its main object. It was a fencing contract; but if by a fencing contract the contractor agrees to fell such trees as are necessary for the purpose of providing posts and strainers, he agrees to fell trees. Again, the respondent agreed under the contract to supply timber to be obtained from trees, the property of the principals, to be felled by him. Doubts seem to have been suggested in some cases which have come before the commission in the past as to whether such things as fencing posts and strainers are "timber", especially in view of a definition of timber, found near the end of s. 6 (5), as including sleepers, piles, poles, girders, logs, or pit timber, with no mention of fencing posts or strainers. I agree, however, with the view which the commission has taken in such cases as Charnock v. O'Brien (1929) 3 WCR 116 and Robinson v. W. P. Snelson (1955) 29 WCR 147 that such things are "timber" within the meaning of the sub-section; for in this country it is a word normally used in a sense wide enough to include any wood suitable for purposes of construction, and the definition in s. 6 (5) seems intended only to ensure the inclusion of certain kinds of wooden articles about which doubts might otherwise be suggested. It may be conceded that the respondent's contract with Ralston and Carter was not a contract to supply timber, if by that is meant a contract predominantly concerned with the supply of timber. But what has to be found in order to satisfy the relevant words of the Act is no more than a contract under which the contractor agrees to supply timber; and if it be agreed that fencing posts and strainers are timber there can hardly be any dispute that the respondent did agree under his contract with Ralston and Carter to supply timber. (at p391)

8. The case, then, falls within par. (a) of s. 6 (5), and the question must be decided whether the paragraph, in providing that any worker employed by the contractor shall, for the purposes of the Act, be deemed to be a worker employed by the principal, means that he shall be deemed to be employed by the principal as well as by the contractor, or that he shall be deemed to be employed by the principal to the exclusion of the contractor. The learned judge who constituted the Workers' Compensation Commission in this case took the former view, but in the Supreme Court, although Herron J. took the same view, Street C.J. and Owen J. were of the contrary opinion: McNamee v. Partridge (1958) 76 WN (NSW) 223 . (at p392)

9. The provision was apparently taken substantially from sub-s. (2A) of s. 3 of The Workers' Compensation Act of 1916 (Q.). That sub-section was introduced into the Act by s. 2 (c) of the amending Act of 1923, and in its original form it made only the contractor, and not his employees, notionally workers employed by the principal. The amending Act of 1929 extended the fiction to the contractor's "wages-men". The New South Wales provision as it was originally passed in 1926 included in its application any worker employed by the contractor; but almost immediately, by an amendment made in 1927, it was restricted to the contractor himself. Not until 1953 was a worker employed by the contractor brought again within the provision. But the history of the legislation in Queensland and New South Wales seems to provide no clue to the question which is before us. Indeed, from a consideration of the course of the relevant legislation in New South Wales negative assistance only is to be gleaned: there is nothing to suggest that in relation to s. 6 (5) (a) there has been any such general tendency on the part of the legislature to extend the provision in favour of injured workers that the appellant's construction has more inherent probability than the respondent's. (at p392)

10. It is, of course, true that, if the paragraph has the meaning which the respondent's argument supports, its operation is to deny to a contractor's worker the rights against the contractor which he would otherwise acquire upon receiving an injury; and because of this the argument is put as if a presumption against an intention to take away rights prima facie given might be invoked. But the paragraph does not operate to deprive workers of rights they have acquired against their actual employers. It occurs in a section which is primarily a definition section. As I have mentioned "worker" and "employer" are defined generally in sub-s. (1), and most of the sub-sections which follow are directed to a variety of special classes of cases in which the legislature has thought it expedient that a person who may or may not be a worker according to the definition shall be treated under the Act as a worker and shall be deemed to be employed by a person who otherwise might or might not be his employer. It is to the persons who are workers according to the total operation of the section that it imposes liabilities to pay compensation. I do not think it is a sound approach to this present problem to draw a line through the definition section and say that, since the compensation provisions of the Act would give A a right against B if the definition section stopped at the line, there is a presumption that what comes after the line does not take away that right. (at p393)

11. In the Supreme Court the consideration which weighed most strongly with the majority of the court was the implication which appeared to their Honours to arise upon a comparison of sub-s. (5) with sub-s. (3) of the same section. The latter sub-section contains a provision in favour of a worker employed by a sub-contractor - I am expressing it in broad terms - but its effect is not that the worker is to be deemed employed by the principal. It is not framed as a "deeming" provision at all. What it does is to give a worker alternative rights against the principal and against the sub-contractor. But only the sub-contractor, who is the actual employer, is to be treated for the purposes of the Act as the employer. The corollary is added that the principal is entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of the sub-section; and there is a specific provision that nothing in the sub-section is to be construed as preventing a worker recovering compensation from the contractor instead of the principal. The lastmentioned provision is an old one. It was in s. 4 of the Workmen's Compensation Act 1906 (U.K.), in s. 15 of the Workmen's Compensation Act 1910 (N.S.W.) (though no express provision was there made to save the rights of the workman against his employer), and in s. 8 of the Workmen's Compensation Act 1916 (N.S.W.). Yet, adopted though it was by s. 6 of the 1926 Act in New South Wales, in the drafting of that Act it was not taken as the model for any other provision. In particular it was not emulated in sub-s. (5). The contrast is indeed striking; for sub-s. (5), as has been seen, does not put into any form of words the intention that the liability of the principal shall exist side by side with the liability of the contractor, or that either shall be indemnified by the other. These points of difference, it is said, provide strong reason for preferring a construction of sub-s. (5) which does not mean that there are two "employers", with nothing to regulate their rights inter se and nothing to indicate whether the worker is to have cumulative rights or only alternative. (at p393)

12. The cogency which this argument appears to have when one considers only the Act in its amended form and without regard to its history, is much weakened, if indeed it does not disappear, when due weight is given to the difference in source and object between the two provisions. Each came into the Act, as has been mentioned, by way of adoption from legislation in force elsewhere, the one from an Act of the United Kingdom and the other from a Queensland Act. Coming from different sources, they were evidently considered independently of each other, and each was adopted for its own merits. The Queensland provision originated in amendments of an Act which did not contain anything resembling s. 4 of the United Kingdom Act, but did contain a provision, sub-s. (3) of s. 3 of The Workers' Compensation Act of 1916 (Q.), that in certain circumstances both a contractor and any wages-men employed by him should be deemed to be workers employed by the person who made the contract with the contractor. There was, therefore, no such contrast as is relied upon here, to govern or influence the interpretation of the new sub-s. (2A). Moreover, as has been pointed out above, that provision originally related only to contractors performing at least some of the actual work themselves, and not (as it subsequently was amended to relate) to their wagesmen also; and the New South Wales s. 6 (5) itself has at some stages of its history related only to contractors who may be called, for brevity's sake, working contractors, though at other stages both to such contractors and to their workers. The only constant object, then, has been to give workers' compensation rights to such contractors against those for whom they perform work; and it has been only as a concomitant that at times there has been included the additional object of placing the contractors' sub-workers (so to speak) in the same situation as the contractors. It is difficult, with these considerations in mind, to see any clear assistance for the problem in a comparison of sub-s. (3) with sub-s. (5). (at p394)

13. In the end, one is driven back to the operative words of the sub-section: "the contractor and any worker so employed by him shall, for the purposes of this Act, be deemed to be workers employed by the principal". The expression "for the purposes of this Act" means, of course, for all the purposes of the Act, but that seems to me not to touch the question we have to decide. It means as applied to the application for compensation which the appellant brought against the respondent, that it would have been correct, if it had been relevant, for the commission to hold that at the material time the appellant was a worker employed by Ralston and Carter, notwithstanding that for purposes other than the purposes of the Act he was not a worker employed by them. But the question is whether there is a negative implication such that the commission was bound to hold that at that time the appellant was not a worker employed by the respondent, notwithstanding that he was in fact a worker employed by him. Another way of stating the question is by asking whether the definition of "worker" in s. 6 was to be understood, first in 1926, as impliedly cut down by the inclusion of the contractor's employees in sub-s. (5), then, in 1927, as restored by their exclusion from that sub-section, and finally, in 1953, as cut down again by their re-inclusion. In my opinion the only satisfactory course to pursue is to take the section as meaning what it says and no more. The resulting situation may be unsatisfactory. It may give rise to doubts as to whether the actual and the notional employer have any and what rights inter se. It may leave an injured worker in doubt as to whether he is obliged, as the commission in fact held that the appellant was obliged in the present case, to elect which employer he will proceed against for compensation, or whether he can maintain two proceedings concurrently, and get two awards. It may leave doubt as to how the employers, if there can be two awards, may ensure that double payment of compensation does not occur. It even leaves to inference the conclusion, inevitable as it seems, that the worker may not receive his compensation twice. These are serious criticisms of the draftsmanship of the provision, but they provide no ground for implying the negative provision for which the respondent contends. (at p395)

14. In the result, I take the view of the case which commended itself to Herron J. I would allow the appeal and answer the question in the stated case No. (at p395)

MENZIES J. I have had the advantage of reading the judgment of Windeyer J. in which the facts are stated, the relevant legislation is quoted, and reasons are given for the conclusion that s. 6 (5) (a) of the Workers' Compensation Act (N.S.W.) is exhaustive in cases to which it applies which accord so exactly with my own that I need do no more than state my agreement with the conclusion there expressed. (at p395)

2. I propose, however, to state in my own words why I regard s. 6 (5) (a) as applicable to this case. The contract into which Partridge entered was not just a contract to fence at so much a mile: it was a contract to do so and, for additional reward, to fell trees on the adjoining land and to cut therefrom such posts and strainers as were required for the fence to be erected. I regard this, as it was regarded by all concerned until the hearing of this appeal, as a contract within s. 6 (5) (a). Partridge, in the course of his business, entered into a contract under which he agreed inter alia to fell trees and to supply timber from the trees felled by him. It was an essential part of his contract that he should do these things. It is true that he contracted to do more, but I see no justification for treating his contract as one to fence rather than as one to fence, cut trees and supply timber. It seems to me that part of the work Partridge contracted to do fell squarely within the sub-section, and that it would be to impose an unwarranted limitation upon its language to treat the sub-section as inapplicable because the contract covered other work as well. It is to be observed that s. 6 (5) (a) does not speak of contracts to do the enumerated things but contracts "under which the contractor agrees" to do the enumerated things. I find no sound reason for saying that Partridge did not agree to fell trees and supply timber. Even if I were not disposed to take the view that I do about the applicability of s. 6 (5) (a), I would have reservations about deciding this case on a basis which departs entirely from that upon which it was fought before the commission. Had attention been directed to the point which is now raised, it is possible that more detailed evidence would have been given and a more positive finding made about the work to be done by Partridge under his contract. (at p396)

3. Because I think the contract fell within s. 6 (5) (a), and s. 6 (5) (a) is exhaustive, I consider this appeal should be dismissed. (at p396)

WINDEYER J. The appellant was employed by the respondent Partridge. He suffered an injury to his leg while felling a tree in the course of his employment. Partridge is a fencing contractor who had agreed with a grazier named Ralston to erect a new boundary fence between Ralston's property near Quirindi and the adjoining property of another grazier named Carter. Partridge made his agreement to do the work with Ralston, who apparently engaged him on behalf of Carter and himself. The arrangement was that the posts and strainers required for the new fence were to be cut on either Carter's or Ralston's property. Partridge was to execute the whole work of cutting the timber required, bringing the posts to the line of the fence and erecting it. In this work Partridge himself took part. Indeed it seems, although it does not appear from the stated case, that it was while Partridge and the appellant were working together in felling a tree for the purpose of obtaining posts for the fence that the appellant was injured. The appellant commenced two separate proceedings in the Workers' Compensation Commission in respect of his injury - one against Partridge, the other against Partridge and Ralston. Ralston joined Carter as a respondent in the latter proceeding. In this unusual situation, the learned Chairman of the Workers' Compensation Commission, in effect, required the applicant, the present appellant, to elect on which application he would proceed. The applicant thereupon obtained leave to withdraw his application against Ralston and Carter and to proceed against Partridge without prejudice to any rights he might have against Ralson and Carter. The matter proceeded against Partridge and his Honour made an award in favour of the applicant for weekly payments of 8 pounds 16s. 0d. per week, later increased to 9 pounds 15s. 0d. per week, during incapacity and for hospital and medical expenses. (at p397)

2. On an appeal by way of stated case the Supreme Court of New South Wales (Street C.J. and Owen J., Herron J. dissenting) held that the applicant was not at the time of the injury a worker employed by Partridge within the meaning of the Workers' Compensation Act, thus reversing the decision of the Workers' Compensation Commission: McNamee v. Partridge (1958) 76 WN (NSW) 223 . From that decision the applicant now appeals to this Court. There is no question that he was in the ordinary sense of the words employed by Partridge; that is to say, the legal relationship of master and servant existed between them. The appellant is thus a person who is a worker, and Partridge a person who is an employer, within the general definitions of those terms in the Workers' Compensation Act; and if it were not for the special provisions of s. 6 (5) (a) of the Act it is not questioned that the appellant would be entitled to be paid compensation under the Act by Partridge. (at p397)

3. Section 6 (5) (a) relates to various forms of rural work done by manual workers paid by the piece or on completion of the job, who are commonly independent contractors not servants. The provision secures for such working contractors as come within it the advantages of the Workers' Compensation Act. For example a man engaged in ring-barking is entitled if injured in the course of the work to compensation from the landholder for whom he was working, whether he were working under a contract and paid by his performance, or working as a station hand and paid a wage. The provision has been often amended since its first enactment in 1926. To make clear how the present question arises, it is convenient to set it out in its present form: "s. 6 (5) (a) Where any person (in this paragraph referred to as 'the principal') in the course of, or for the purposes of, his trade or business, enters into a contract, agreement, or arrangement, with any other person or persons (in this paragraph referred to as 'the contractor') under which the contractor agrees - (i) to supply timber, and such timber is obtained, or to be obtained, from trees felled, by the contractor (whether such trees are the property of the principal or the contractor or any other person): or (ii) to fell or ringbark trees, or cut scrub, or haul or load timber, or haul and load timber; or (iii) to clear land of stumps or logs; or (iv) to cut sugar-cane; or (v) to perform any other work or class of work specified by proclamation of the Governor published in the Gazette; and the contractor does not either sublet any part of the work to be carried out, or employ a worker or although either subletting part of the work or employing a worker actually performs some part of the work himself, the contractor and any worker so employed by him shall, for the purposes of this Act, be deemed to be workers employed by the principal. Where the principal has given or offered the contractor the option to or the opportunity to so supply timber if he so desires then for the purposes of this paragraph the contractor shall be deemed to have agreed to supply timber." (at p398)

4. The question which logically arises first is whether the contract made by Partridge for the erection of the fence was within the sub-section. The learned chairman of the commission seems to have regarded it as being an agreement under which Partridge undertook to supply timber and thus within par. (i) of the sub-section. In the Supreme Court it was not disputed that the sub-section applied; but the court thought that this was because the contract was one under which Partridge undertook to fell trees (par. (ii)) rather than to supply timber. Before us it was not really contested that on one ground or the other the provision applied; and the only question seriously debated was its effect. In these circumstances, and especially as the other members of the Court think that the case falls within the sub-section, I am prepared to assume that it does. Moreover, there is probably not sufficient information in the case stated to justify any different conclusion. Nevertheless, with great respect for the views of those who think otherwise, I am not satisfied that a contract such as the present one does come within the sub-section. I wish, therefore, to regard the question as still open if in connection with another but similar contract it should in some future case be squarely raised, merely indicating my reasons for doubting the correctness of the assumption which I make in these proceedings. (at p398)

5. A contract the performance of which accomplishes as a merely accidental consequence one or other of the things mentioned, for example the clearing of land, is not on that account within the provision (e.g. Smith v. McCabe & Trickey (1957) VR 518 ). That, however, is not this case, for here it was part of the contract that Partridge should cut and thus provide the timber for the fence. Nevertheless the view that this suffices to bring a contract within the sub-section could have far-reaching and, I think, hitherto uncontemplated consequences. Certainly a contract to build a fence, or for that matter a hut, or a wool-shed or other building, using as part of the building materials timber to be felled by the contractor and brought by him to the place required, is in one sense a contract "under which the contractor agrees to supply timber" (or to "fell trees" or "haul timber"). In the same way, an ordinary building contract under which the builder undertakes to clear the building site is, if there be trees or stumps and logs to be removed, a contract "under which the contractor agrees to fell trees" and "to clear the land of stumps and logs". But if it were not for the doubts created in my mind by finding that others take a different view, I would not have thought that such contracts would necessarily come within the sub-section. I would have read it as referring only to contracts for recognised forms of work done in the country or on the outskirts of cities, performance of which by the contractor is the consideration for payment by the principal, and not as referring to undertakings incidental to the performance of the work for which payment is to be made. I am disposed to view the sub-section as referring to contracts which can be characterised by the various descriptions and not as referring to work of those descriptions incidental to the performance of a principal undertaking. That is to say the work described must, I feel, be either the subject matter of an entire contract or a separate undertaking of a divisible contract. On that view a contract to build a fence, cutting the posts, is not, I would think, ordinarily a contract under which the contractor agrees to supply timber or to fell trees within the meaning of the Act. The price quoted by Partridge for erecting the fence was said at the hearing to have been "250 pounds per mile and in addition so much a hundred for posts and so much for the strainers". This, however, I take it, meant so much for the posts and strainers when erected as part of a fence. But, as I have said, the facts are not determined sufficiently to say whether or not Partridge's contract contained a separate and severable undertaking to supply timber. Here the appellant was injured while actually felling a tree. But where the sub-section applies it has not been regarded as restricted to injuries occurring in the actual doing of the specified work, but as covering activities incidental thereto (see e.g. Wall v. Levy (1954) 28 WCR (NSW) 99 ). The Queensland Industrial Court held that a provision similar to s. 6 (5) (a) applied to a contract for the repair of station yards not unlike the contract in the present case; and further that compensation was payable although the injury did not occur during the performance of the particular activity which was regarded as attracting the statutory provision (Kenna v. Insurance Commissioner (1948) 42 QJPR 26 ). In Robinson v. W.P. Snelson (1955) 29 WCR (NSW) 147 , the learned commissioner who heard the matter expressed the view that whether a contract (there to repair a fence) came within the sub-section by reason of its involving the supply of timber depended upon how important the getting of the timber was in relation to the overall contractual obligation. He said that whether an obligation to supply timber as an element in a more extensive undertaking would bring that undertaking within the statute was a question of degree. If that be the correct approach, then no doubt the present case falls within the sub-section, because Partridge's obligation to cut the posts and strainers was a considerable part of the total work he was to perform. But there are difficulties in adopting this as the criterion. These cases are examples of many which have come before various workers' compensation tribunals concerning the scope of s. 6 (5) (a) or similar provisions. Some of the questions they raise have not yet come before the superior courts. For the reasons I have given I prefer to assume but not to decide that the sub-section applies in the present case. (at p400)

6. The critical question then comes down to this: the appellant McNamee is for the purposes of the Act, deemed to be a worker employed by Partridge's principal (Ralston or Ralston and Carter). Is the principal his only employer for the purposes of the Act or does the Act give him a double right - against the notional employer, Partridge's principal, as well as against Partridge his actual employer? The question is important not only in relation to all contracts which come within s. 6 (5) (a). It can also affect persons coming within s. 6 (6A) (tributers and workers employed by them) and also, to some extent, those coming within s. 6 (14) (shearers' cooks and others). (at p400)

7. Under the Act injured workers are entitled to receive compensation from their employers. Workers are primarily those who work under a contract of service. But the Act contains a number of provisions which extend its scope and its benefits to persons who are not in law servants. It does this by providing in various ways that the relationship of worker and employer shall be deemed to exist in a number of instances where one man performs work for the benefit of another in circumstances where the relationship is not that of master and servant. Certain persons who would not otherwise be called workers are deemed to be workers and certain persons who would not otherwise be their employers are deemed to be so. The broad policy of the Act is to give a worker a right against his employer; and employers are required to effect insurances to cover their contingent liability under the Act. If any person not working under a contract of service is nevertheless for the purposes of the Act classified as a worker and another person classified as his employer, this broad scheme is unimpaired. But if, on the other hand, the provisions of s. 6 (5) (a) and s. 6 (6A) be construed so as to give the same person two employers in respect of the same work, the harmonious scheme of the Act is deranged; for the Act has no procedural provisions to meet such a case. It imposes upon an applicant no obligation of election. It makes no provision in relation to s. 6 (5) for contribution or indemnity such as s. 6 (3) provides; and it did not do so in 1926 when, upon its original introduction into the Act, its form was in relevant matters the same as that which it again (since 1953) bears. I agree with Street C.J. and Owen J. in thinking that the absence from s. 6 (5) of any provision comparable to s. 6 (3) (b) and s. 6 (3) (c) points against the construction for which the appellant contends. These considerations are not in themselves decisive. The Act does contemplate a joint insurance policy where several persons may become liable for compensation in respect of the same worker (s. 18 (6)); but this may refer primarily to persons liable as joint employers. However, disregarding other considerations and simply construing s. 6 (5) (a) literally, it provides that McNamee (a worker in fact employed by Partridge) shall for the purposes of the Act be deemed to be employed by Ralston (or Ralston and Carter). "For the purposes of the Act" must I think include the application of s. 7. (at p401)

8. We were invited to speculate as to the policy and purpose of the amendment of s. 6 (5) (a) made in 1953. But I do not think that much assistance is to be got by doing so. At some periods in the very vacillating history of this provision it applied only to contractors who did the work themselves without employing any assistants. At other times, as now, it has applied to contractors who employ workers, provided they, the contractors, perform part of the work themselves. At the present time the provision applies both to such contractors and to their employees. I do not think there is any sure ground for supposing that the purpose of the amendment in 1953 was to give a man employed by a contractor a right against the contractor's principal while still preserving his right against the contractor. It seems to me more natural to think that it was intended to substitute the principal for the contractor as the employer for the purposes of the Act. That, as the majority judgment of the Supreme Court said, meant a substitution of the actual employer by a person who might perhaps be more likely to have effected the necessary insurance and be better able to meet his obligation to pay compensation. The amendment, it seems to me, reflects Parliament's concern for working contractors and carries a stage further a general policy of treating them as workers for the purposes of the Act. It provides not only that the contractor shall have the benefit of being a worker but also that he shall be relieved of the liability of being an employer. A working contractor for country work and those who work for and with him as his workmates, and often as his camp-mates, are thus all assimilated for the purposes of the Act. All are classified as workers and deemed to be employed by the person for whom the work is being done; and as I read s. 6 (5) (which forms part of the definition provisions) it makes this employer their only employer for the purposes of the Act. This construction could result in proceedings between an applicant for compensation and his alleged notional employer failing on the ground that the facts were not within the sub-section and that the proper remedy was against the contractor as actual employer; and then in proceedings against the contractor on different evidence the sub-section might be held applicable and the contractor thus exonerated. An injured worker could thus fail against both the notional and the actual employer - because in one proceeding or the other an incorrect decision was made as to the applicability of the sub-section. Some third party procedure seems to be needed. But whatever construction of s. 6 (5) be adopted procedural difficulties become apparent, including practical difficulties in the statutory requirements of notice of accidents. The deficiencies of the Act might well have the legislature's attention. They do not, I think, make clear what was its intention. (at p402)

9. I would uphold the decision of the Supreme Court. (at p402)

ORDER

Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the question in the case stated be answered No and that the respondent in this Court (the appellant in the Supreme Court) pay the costs of the case stated.