Griffiths Powerline Maintenance Pty Ltd v IDS Consulting Services Pty Ltd
[2003] QDC 55
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- Unreported Judgment
- Griffiths Powerline Maintenance Pty Ltd v IDS Consulting Services Pty Ltd[2003] QDC 55
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Griffiths Powerline Maintenance Pty Ltd v IDS Consulting Services Pty Ltd[2003] QDC 55
Griffiths Powerline Maintenance Pty Ltd v IDS Consulting Services Pty Ltd[2003] QDC 55
DISTRICT COURT OF QUEENSLAND
CITATION: | Griffiths Powerline Maintenance Pty Ltd v. IDS Consulting Services Pty Ltd [2003] QDC 055 |
PARTIES: | GRIFFITHS POWERLINE MAINTENANCE PTY LTD ACN 083 309 773 v. IDS CONSULTING SERVICES PTY LTD ACN 088 281 672 |
FILE NO/S: | 1398 of 2003 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 29 May 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 May 2003 |
JUDGE: | Boulton DCJ |
ORDER: | Application dismissed with costs to be assessed |
CATCHWORDS: | Subcontractors’ Charges Act 1974 – ss 3, 21 – application to cancel charge – definition of – “work” |
COUNSEL: | Mr D Kent for the applicant Mr G Beacham for the respondent |
SOLICITORS: | Paul Everingham & Co for the applicant Irish Bentley for the respondent |
- [1]This is an application to cancel a claim of charge pursuant to s. 21 of the Subcontractors’ Charges Act 1974 (“the Act”).
- [2]The affidavit of Paul Anthony Edward Everingham filed on 7 May 2003 refers to the receipt by him of a notice and statutory declaration both dated 9 April 2003. Those documents are Exhibit 1 to Mr Everingham’s affidavit. He also refers to a letter dated 2 May 2003 with an affidavit accompanying payment into court which he received from Bain Gasteen Solicitors who act for Powerlink Queensland which is described as the employer. According to the affidavit the amount paid into court was $61,667.10 which is the remaining balance of monies payable by the employer to the contractor under the contract. No other notices of charge under the Act in respect of the contractor and the contract have been received. Paragraph 2 of the affidavit is as follows:
“2. On or about 2 January 2003 the employer entered into contract number TN02002/31/6 with the contractor (‘the contract”) for the performance by the contractor of timber clearing services for the Blackwall to Belmont and Maudesland to Molendinar transmission lines.”
- [3]The applicant has put before the court an affidavit of Delphine Pereneice Griffiths filed 16 May 2003 which exhibits a large volume of correspondence between the applicant and Powerlink relating to the abovementioned work. The expression of interest document submitted by the applicant to Powerlink refers to the respondent company at para 3 as expert in vegetation management and in ISO quality and environmental guidelines. The work called for the installation of a new transmission line involving new transmission towers and some relocation work.
- [4]It seems that the applicant and the respondent had prior dealings in this type of work in New South Wales and that in tendering for the head contract there was an understanding between Mr Griffiths and Mr Smith, a director of the respondent, that if the applicant were successful it would use the respondent as a subcontractor. Indeed, Schedule AC to the tender documents named the respondent as a proposed subcontractor. On or about 5 January 2003 the applicant was awarded the head contract with Powerlink to clear trees at the sites to permit installation of new transmission bases and lines. The work is described in more detail at para 20 of Mr Smith’s affidavit, the contents of which are accepted by Mr Griffiths at p 5 of his affidavit filed by leave:
“20. The nature of the clearing that was required was to clear numerous areas that were of sufficient size to allow the erection of metal structures that would eventually support power lines (called in the industry ‘transmission bases’). In order to clear the designated sites of trees in ways that would give rise to the cleared area of the shape and size required by the head contract, the areas that were required to be cleared are designated by referring to them as ‘pads’. The location and the size of the pads were determined by Peter Griffiths in conjunction with Doug Adams of Powerlink”
- [5]It is also worth noting that the respondent provided a site manager, Mr Wayne Morris, along with heavy machines and operators. Mr Morris, in his affidavit sworn 16 May 2003 describes his functions as follows:
“10. The work IDS and myself was subcontracted to do by the applicant was to clear the pads selected by Peter Griffiths and Doug Adams free from established sizeable trees and scrubs using chain saws and heavy machineries. To describe the work done as merely ‘gardening’ is to significantly understate the matter. The purposes of clearing the pads free from trees and scrubs were to permit the construction and erection of new transmission bases.”
- [6]The notice of charge to which I have referred above refers to four invoices. Invoice 109 refers to services rendered by Mr Morris between 15 January 2003 and 29 January 2003. The remaining invoices, 110, 112 and 113, refer to what is described as “hire of plant and machinery” at times during the same period.
- [7]Counsel for the applicant contends that the notice of charge is misconceived. He says firstly that the work for which the respondent contracted does not fall within the definition of “work” in the Act in that there was no building or construction involved in this work and there is no suggestion that any construction was actually occurring.
- [8]The second ground advanced on behalf of the applicant is that hire charges for plant and machinery are excluded from the definition of “work” pursuant to s. 3(g) of the Act.
- [9]The third ground is expressed in the following terms:
“Thirdly, the same observations apply in respect of work or labour done under a contract of service (see subparagraph (f) of the definition). Wayne Morris, it seems, is an employee of IBS (see paragraph 21 of Mr. Smith’s affidavit) and therefore his work under a contract of service is not within the definition. This is the only other amount of debt said to make up the notice of charge.”
- [10]“Work” is defined in s. 31 of the Act. The presently relevant parts of the definition are in these terms:
“’Work’ includes work or labour, whether skilled or unskilled, done or commenced upon the land where the contract or subcontract is being performed by a person of any occupation in connection with –
(a)the construction, decoration, alteration or repair of a building or other structure upon land;
(b)the development or working of a mine, quarry, sand pit, drain, embankment or other excavation
in or upon land, …”.
- [11]This definition was considered by de Jersey J (as he then was) in Re Leighton Contractors Pty Ltd (1985) 2 Qd.R. 377. In that case the services referred in the notice comprised the provision of meals, and the provision and management of other catering and janitorial services to the workforce. The services were provided at the construction camp which was situated about one kilometre from the construction site.
- [12]His Honour firstly expressed doubt as to whether the services could be described as work done “upon” land. He goes on to say at p. 380:
“That apart, however, I cannot conclude that the provision of these services was, in the full context of the statutory definition of ‘work’, something done upon the land ‘in connection with’ the construction of the dam. It is better characterised as something done in connection with the provision and maintenance of the workforce for the construction. The phrase ‘in connection with’ may undoubtedly bear a very wide connotation, similar to that of ‘in respect of’ (cf. Trustees Executors and Agency Co Ltd v. Reilly [1941] V.L.R. 110,111), but its extent must in the end be regulated by the particular context in which it appears (Murdock v. Simmonds [1971] V.R. 9887, 888: State Government Insurance Office (Qld) v. Rees (1979) 144 CLR 549, 561; Cylone Scaffolding Pty Ltd v. Commissioner of Stamp Duties [1985] 2 Qd.R. 435. In this particular context, the expression is simply not wide enough to link the provision of these services with the process of actual construction. I think that the reference to work ‘upon the land’ lends colour here to the expression ‘in connection with’ requiring a closer connection than would perhaps otherwise have been the case.”
- [13]The phrase “in connection with” is considered in the New Zealand Court of Appeal in Kaldow Properties Limited & Anor v. H J G Low and Associates Limited (1971) NZLR 311. There it was used in a similar context in a definition of “work”. Richmond J at p. 321 observed:
“Bearing in mind the foregoing considerations, I am of opinion that the words ‘work upon or in respect of any land’ should be limited to work which is an integral part of an operation which has as its immediate object some alteration to the physical condition of the land. In the definition clause (as I have already pointed out) the types of operation described in (a), (b) and (c) all have as their immediate object some alteration to the physical condition of the land. The introductory phrase “in connection with” should however in my opinion be given the meaning “as an integral part of”.”
- [14]On the material available to me it appears to me that the clearing of pads for the erection of the transmission towers was a necessary and integral part of the construction process. I am mindful of the fact that there is some conflict, though not a lot, concerning the nature of the work which is described by Mr. Griffiths at one stage as mere “gardening”. Elsewhere he agreed with the description given by Mr. Smith to which I have referred above.
- [15]The procedure under s. 21 of the Act is of a summary nature. I refer to what was said by Williams J (as he then was) in Concept Constructions (Qld) Pty Ltd v. Ashphalt Pavements Pty Ltd (In liq.) [2000] QSC 269:
“ … in my view, whether or not there was an amount payable or to become payable by the applicant to the respondent as at 21 January 2000 with respect to work done prior to that date can only be answered after factual matters in dispute between the parties have been resolved by a trial.
…
For the above reasons the issues which will determine whether or not the respondent has a valid charge cannot be resolved summarily.”
His Honour went on to dismiss the application with costs to be assessed.
- [16]In the present case, then, the subcontract appears to fall within the definition of “work”. The issue can be canvassed further at trial if necessary. It would be premature to say the least to resolve the matters summarily by cancelling the charge on this ground.
- [17]The second and third grounds advanced on behalf of the applicant relate to the nature of the charges that are reflected in the invoices. Several of these relate to the use of machinery where the term “hire” is used. One of them relates to the supervisory work done by Mr. Wayne Morris who was an employee of the respondent.
- [18]The use of the term “hire” is not determinative of the nature of the contractual arrangement any more than the use of the description of the respondent as a subcontractor in the tender documents is conclusive on that issue. This aspect of the matter is canvassed extensively by McMurdo DCJ (as she then was) in application 1468/98 by Gradeline Contracting Pty Ltd where a judgment was delivered on 5 June 1998. At p. 10 of the unreported judgment Her Honour observed:
“The subcontract partially written and partially oral was for the respondent to supply the scraper and operator to perform all remaining scraper work on the site at an hourly rate. Payment was only to be for work done. The operator was not to be used on other work. If the work was not done there was no payment. What was agreed was not a mere hiring, but a sub-contract for ‘work’ within the meaning of the Act. It does not matter if the term ‘hire’ is used in the sub-contract if what was done was in fact work: See Farrier-Waimak v. Hornby Development (supra). The respondents contracted to work on the land where the contract was being performed in connection with the construction alteration or repair of a road on the land.”
- [19]Paragraphs 5, 6 and 7 of the affidavit of Wayne Morris filed by leave, along with paras. 21, 22 and 23 of the affidavit of Ian Douglas Smith filed by leave are strongly supportive of the conclusion that this was not a mere hire of machinery but a contract for services to be provided by the respondent utilising its machines and operators under the immediate direction of Mr. Morris. Mr. Morris and the operators were paid by the respondent. The fact that they charged out their services at an hourly rate matters not at all.
- [20]The same can be said for the supervisory charges provided by Mr. Morris. It is not material to this application to point out that he was an employee of the respondent and was therefore employed under a contract of service. The contract at issue here is not the contract between Mr Morris and the respondent, but rather the contract between the applicant and the respondent which is said to amount to a subcontract within the terms of the Act.
- [21]This is a matter too that might be more fully ventilated on trial. Suffice to say that on the material there is no basis for cancelling the charge on the grounds that have been advanced.
- [22]The application therefore must be dismissed with costs to be assessed.