Zuijs v. Wirth Brothers Pty. Ltd.
(1955) 93 CLR 561(Judgment by: McTiernan J)
Zuijs
v Wirth Brothers Pty. Ltd.
Judges:
Dixon C.J., Williams, Webb and Taylor JJ
McTiernan J
Judgment date: 15 December 1955
Sydney
Judgment by:
McTiernan J
McTIERNAN J. I agree. (at p575)
2. The question whether the appellant was working under a contract of service is a matter of inference from statements made by the management to him concerning his remuneration and the evidence of the appellant's attendances at the circus in order to perform his role of trapezist. The payment was a weekly rate. It does not appear that the appellant's remuneration depended upon the number of performances which he gave. According to evidence the appellant "joined the circus" early in March 1950 and "stayed" with it until he was injured. The accident happened on 18th April 1951. The evidence proves that the appellant appeared in his role as trapezist at all the shows given by the circus during that period whether in the city or country. There was an interval of two weeks, shortly before the accident, during which he did not appear because his associate acrobat left the circus and he could not give his particular exhibition without him. The respondent itself appointed and paid the two acrobats who performed in company with the appellant. There is no evidence of any express term of the engagement of the appellant by the respondent except the rate of payment. Was the appellant a contractor or a servant? The Workers' Compensation Commission found that he was the former. (at p575)
3. The first question in the stated case is whether the commission erred in holding that he was not a servant of the respondent. I think that the evidence does not support the finding that the appellant was an independent contractor. The finding is that "from all points of view Mr. Zuijs and his partner were an act bought by Wirth's Circus upon a particular monetary basis and that there was no contract of service." I think that it is not correct that all the evidence pointed away from a contract of service. The finding made by the commission has nothing less to support it but an implication arising from the fact that he was employed to exercise skill and an independent judgment in performing upon the trapeze. The nature of his employment could, it may be assumed, raise that kind of implication. But it is obvious that in order to carry out his engagement he would be required to comply with the orders of the management in respect of such matters as the time at which he should attend the circus, the length of time allowed for his act, the frequency of his appearances, and whether he should "go on tour" with the circus.
Besides, it was part of the business of the respondent to provide trapeze exhibitions for its patrons and it may be assumed that these exhibitions, like other feats in the circus tent, were done under the eye of the management. I do not see anything in the evidence showing that the management had no power or right to order the appellant, for example, not to repeat a particular feat on the trapeze if it were considered dangerous to him or the audience. The evidence was in my opinion sufficient in law to prove a contract of service. However, it is not within the province of this Court to make a finding on the issue. Such a finding would involve weighing inferences of fact arising from the nature of the employment as to the right or power of the respondent to control the appellant, and considering whether such inferences rebutted the proof of the relationship of a servant. I think that the first question should be answered: Yes, because the commission erred in holding, as I understand the finding, that the evidence conclusively proved that the relationship of the appellant to the respondent was that of an independent contractor. (at p576)
4. As regards the second question I agree with the opinion expressed in the joint judgment as to the limiting effect of the words "where a contract to perform any work exceeding five pounds in value" and by reason of those words the appellant is not a worker within the meaning of s. 6 (3A) having regard to the evidence. (at p576)
5. I agree with the order proposed in the joint judgment. (at p576)