Clarke JA

Meagher JA
Sheller JA

Supreme Court of New South Wales - Court of Appeal

Judgment date: Judgment handed down 7 July 1992

Clarke JA

The primary ground taken in the notice of appeal to the Supreme Court was that the learned magistrate erred in law in failing to conclude that the contract between the appellant and Bruce Edward Maiden dated 16 May 1983

ATC 4329

was ``wholly or principally for the labour of the said Bruce Edward Maiden''.

Although, as Sheller JA pointed out, the particular legal error said to have been committed by the magistrate was not clearly identified it is reasonably apparent that Roden J concluded that the facts proved allowed of only one conclusion. That is, that the contract was wholly or principally for the labour of Mr Maiden.

The specific question posed before this Court is whether Roden J was correct in reaching this conclusion that the magistrate erred in law in deciding otherwise. In this respect it is clear that if the primary facts found are necessarily within or outside a statutory description a contrary finding will involve error of law (
Hope v The Council of the City of Bathurst 80 ATC 4386 at 4391; (1980) 144 CLR 1 at 10;
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156).

However I am unable to agree with Roden J that the magistrate did make the legal error assigned by his Honour. The primary facts did not, in my opinion, compel the conclusion that the contract was wholly or principally for the labour of Mr Maiden. I reach that conclusion for the reasons expressed by Sheller JA.

I agree with the orders proposed by Meagher JA.

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