References: [1945] HCA 13, (1945) 70 CLR 539
Links: Austlii
Coram: Latham CJ, Rich and Dixon JJ
Ratio: High Court of Australia – The Court was aksed whether a payment made by the company to a drover was ‘wages’ within the meaning of a Pay-roll Tax Assessment Act, which depended on whether the relation between the company and the drover was that of master and servant. The drover was employed under a written contract to drove 317 cattle to a destination. The contract provided that he should obey and carry out all lawful instructions and use the whole of his time, energy and ability in the careful droving of the stock, that he should provide at his own expense all men, plant, horses and rations required for the operation, and that he should be paid at a rate per head for each of the cattle safely delivered at the destination.
Held: He was an independent contractor.
Dixon J said: ‘There is, of course, nothing to prevent a drover and his client forming the relation of employee and employer . . But whether they do so must depend on the facts. In considering the facts it is a mistake to treat as decisive a reservation of control over the manner in which the droving is performed and the cattle are handled. For instance, in the present case the circumstance that the drover agrees to obey and carry out all lawful instructions cannot outweigh the countervailing considerations which are found in the employment by him of servants of his own, the provision of horses, equipment, plant, rations, and a remuneration at a rate per head delivered. That a reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract appears from . . ‘ (authorities cited)
Last Update: 01-Aug-16
Ref: 567822
