AH Kaw v Sydney Wideform Australia Pty Ltd (in liq)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AH KAW v Sydney Wideform Australia Pty Ltd (in liq) & Ors [2025] NSWPIC 486
APPLICANT:	Pendiry Bin AH KAW
FIRST RESPONDENT:	Sydney Wideform Australia Pty Ltd
SECOND RESPONDENT:	Formscaff Pty Ltd
THIRD RESPONDENT:	Formscaff Form Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	17 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation; worker/deemed worker disputed inter alia; Stevens v Brodribb Sawmilling Co Pty Ltd considered; Held – applicant was a deemed worker; award for applicant for weekly compensation.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. On 4 May 2024, the applicant was employed by the first respondent as a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998. 2. The applicant had no capacity for work for the period 4 May 2024 to 6 August 2024. 3. Pre-injury average weekly earnings were $1680. 4. The first respondent is to pay the applicant weekly compensation: (a) pursuant to s 36(2) of the Workers Compensation Act 1987 (the 1987 Act) for the period 4 May 2024 to 2 August 2024 at the rate of $1,596 per week, and (b) pursuant to s 37(2) of the 1987 Act for the period 3 August 2024 to 6 August 2024 at the rate of $1,344 per week. 5. General order as against the first respondent in respect of s 60 expenses. 6. Award in favour of the second and third respondents. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Pendiry Bin Ah Kaw, the applicant, suffered injury in the course of his work as a form worker at a construction site on 4 May 2024 when he sustained an open fracture of the right proximal tibia. The applicant initially claimed in these proceedings continuing weekly compensation, which was amended as below.
By way of dispute notices dated 23 July 2024 and 27 August 2024, the first respondent, Sydney Wideform Australia Pty Ltd, the second respondent, Formscaff Pty Ltd, and the third respondent, Formscaff Form Pty Ltd, disputed “worker”, “deemed worker”, and capacity for work. The first respondent will be referred to as “Sydney Wideform”, the second and third respondents as “Formscaff”, and all respondents will otherwise be referred to as “the respondents”.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing of this matter the applicant was represented by Mr Robison of counsel, instructed by Mr Lu, solicitor, and the first, second and third respondents by Mr Young of counsel, instructed by Mr Lott, solicitor.
Prior to the hearing of this matter, the applicant discontinued proceedings against a fourth respondent, the Workers Compensation Nominal Insurer (iCare).
Additionally, amendments were sought by the applicant as to the application and claims. The first uncontroversial amendment was to close the period of weekly compensation. This amendment was made. The second amendment, which was objected to by the respondents, was to additionally seek a general order as to s 60 expenses. It was agreed that this could be dealt with in this decision, following enquiries made by the respondents at the hearing as to the making of a s 60 claim. This is dealt with below.
In the Application to Resolve a Dispute, the postal address of the first respondent, Sydney Wideform Australia Pty Ltd, was recorded as 33 Lee Steet Condell Park NSW.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    the Application to Resolve a Dispute and attached documents;
(b)    the Replies of the first, second and third respondents and attached documents, and
(c)    the Applications to lodge additional documents dated 31 March 2025 and
21 July 2025.

Oral evidence

There was no oral evidence.

Statements

The applicant provided statements dated 9 October 2024 and 30 March 2025.
In his statement dated 9 October 2024, the applicant said that he was employed by Zack as a form worker. He said that he had worked for Zack since July 2018 and that he first worked for Zack in Rosebery. The applicant said that he had performed labour work for Zack, who controlled where the applicant worked and the hours that he worked. On first attendance at Rosebery he said Fattah Abdul Raham (“Fattah”) told the applicant and his friend what to do on site.
The applicant said that Zack would often tell Fattah to tell the applicant where to go and work. The applicant said that Fattah was like a supervisor or organiser and that Fattah created a WhatsApp group where he would allocate work and tell the applicant and others where to go and what to do.
The applicant stated that his work usually started at 7am and finished at 3pm and he worked from Monday to Saturday. He said that if he did anything wrong he would be reprimanded by Fattah. The applicant said that Fattah introduced him and his friend to Zack and they agreed to work for Zack in July 2018.
The applicant said that when he first started working for Zack, he would pay the applicant $170 per eight hour shift and he would get about an extra $50 for overtime. Fattah would hand out the pay in envelopes containing cash. At the time of the accident he was getting paid $280 per eight hour shift and overtime was still about an extra $50.
He said that in about 2020, he started receiving my pay via bank transfers and that Zack would give cash to his trusted employees and they would transfer the applicant’s pay into his bank account directly into his bank account. He said that he did not provide any invoice to Zack.
The applicant said that he did not have an ABN and he had no workers compensation insurance or income insurance. The applicant said that he did not operate a business.
He said that while he worked for Zack, he did not work for another company or employer.
Mr Azman Bin Jaafar provided a statement dated 31 March 2025. He gave details of his employment and of his belief that Formscaff was his employer. He attached photographs of workers (but not all workers in the photographs) who wore clothing the name Formscaff.
There was no statement evidence tendered on behalf of the respondents, and in particular there was not statement of Mr Zack (or Zaher or Zaek) El Ajar tendered.
The applicant said that the accident on 4 May 2024 occurred at the carpark area P3 of
4 Finch Drive, Eastgardens at a project named Pagewood Centro. He said that he was taken to Prince of Wales Hospital emergency department by “Alex” and “Ali” where they stayed with him for about an hour, and then “Fattah and couple of other people came to visit me”. They left when the applicant was taken for surgery.

Bank statements

The applicant’s bank statements were in evidence. The respondents in submissions took me to various entries in those statements, which will be dealt with below.

Correspondence

In evidence were emails from “Formscaff” from a domain address of “formscaff.com.au”. These will be discussed below.
Also in evidence was correspondence from QBE, acting as the service provider managing the applicant’s claim, on behalf of “Insurance & Care NSW (icare) acts for the Workers Compensation Nominal Insurer ABN 83 564 379 108”, (the workers compensation insurer) dated 4 July 2024 and dispute noticer 23 July 2024 and 27 August 2024. This correspondence will be discussed below.

Photographs and other

Photographs are noted above. There were other photographs not relevant her.
Also in evidence were WhatsApp screenshots and spreadsheet prepared by the applicant’s solicitors.
There were three claim forms signed by the worker and dated 24 June 2025, one for Sydney Wideform and two for Formscaff. In my view these forms are inconclusive as to the issues in these proceedings.

Certificates of Capacity

A number of certificates of capacity were provided.
The initial certificate of capacity dated 6 May 2024, certified by Dr Ashwini Manorathan of the Prince of Wales Hospital recorded that the applicant was first seen on 4 May 2024. It recorded the applicant’s occupation as “formwork” and his employer as “Sydney Wideform Australia” of “33 Lee St Condell Park”. It diagnosed “open fracture of right proximal tibia following accident at work” on 4 May 2024. It stated in response to the question as to how the injury was related to work: “bring materials up from basement at construction site (Meriton apartments) 4m up palate jack, it did not stop as it was supposed to, he fell approximatelyfour metres wedging leg between the metal plates”.

Reasons

There was no dispute as to injury.
The respondents disputed worker, deemed worker and also pre-injury average weekly earnings (PIAWE) and capacity.
At the hearing of this matter the Application to Resolve a dispute was amended to close the period of claim for weekly compensation to 6 August 2024, so that the claim for weekly compensation to be determined was for the period 4 May 2024 to 6 August 2024.
The applicant also sought an amendment to additionally claim a general order as to s 60 expenses.
The respondents objected on the basis that the proposed amendment may open appeal rights which may not otherwise be available. However, the respondent conceded that it had received a claim for payment for medical and treatment expenses from the applicant.
As a claim for reimbursement of medical expenses had previously been made, that is prior to the commencement of these proceedings, in my view the amendment is appropriate. This to my mind outweighs any hypothetical question as to appeal rights, which in any event may assist the respondents. Leave is granted for the application to be amended to additionally claim a general order pursuant to s 60.
The respondents’ submissions in general were to the effect that the applicant had not discharged his onus. The respondents also submitted that the applicants statement evidence was not consistent with the objective evidence, and his evidence could not be taken at face value.
The respondents conceded that Zaher Al Arja, known as Zack, was a director of the first respondent, Sydney Wideform. It was submitted that other individuals named by the applicant as being associates of Zack could not be attributed to names appearing in the applicant’s bank statements.
The email of Mr Elcham, managing director of Formscaff Form Pty Ltd, dated 30 November 2024 to the applicant’s solicitor, is in my view significant. Mr Elcham denied that the applicant was an employee of his company, but said that “the director of Sydney Wideform” had “stated and confirmed…that they are indeed the employer in question”. Earlier emails from “Formscaff accounts”, from the same general or domain email address as Mr Elcham, dated 25 June 2024 and 20 November 2024, stated that Sydney Wideform was a subcontractor and that the director of Sydney Wideform was Mr Zaher Al Arja or Mr Zack Al Arja.
I find that Zaher Al Arja and Zack Al Arja were the same person. The context of the above emails indicates that was the case. I also find that Zack or Zaher Al Arja (“Zack”) was the person referred to in the email of Mr Elcham above. I also find that Mr Al Arja was a director of Sydney Wideform at the time of the emails referred to above.
In my view, the applicant was mistaken in that belief when he said that believed he was employed by Formscaff. The applicant in his statement of 9 October 2024 said he worked for Formscaff at the time of his injury, apparently because he believed that Zack was the boss of Formscaff, and he was later given a shirt and jumper with “Formscaff” printed on the back. In his statement of 30 March 2025, the applicant referred to “working for Formscaff” but in the context of being paid in cash or by EFT by Zack, or as arranged by Zack. The applicant did not otherwise say why he believed he worked for Formscaff. This is in my view not inconsistent with being employed, or working for, Zack, in a different context, that is a subcontractor arrangement between Zack as Director of Sydney Wideform, and Formscaff. Mr Jaafar’s evidence as to his own arrangements in this regard does not assist, in my view.
In my view, the applicant was not mistaken that his boss was Zack, as confirmed by the above correspondence from Formscaff. The applicant in general in his statements was of the belief that Zack was his employer, as noted above.
The applicant in his statement of 9 October 2024 described how he was paid in cash by Zack, then from 2020 he was paid by bank transfers (EFT deposits). However, in his statement dated 30 March 2025, the applicant described how he was paid in cash and EFT deposits. This is not inconsistent with the bank statements in evidence, which in my view indicated somewhat irregular EFT payments for work.
The applicant in his statement of 30 March 2025 said that a number of named persons were arranged by Zack to “distribute” his wages. The respondents criticised this generally as being an implausible business arrangement, and also that such persons were not accurately identified or reproduced in the bank statements. It was submitted that little weight should be given to the applicant’s evidence as to the different persons that were said to pay him on behalf of Zack, as there was no evidence in support of the applicant’s assertions, which were in the nature of hearsay. The applicant said generally that this sort of arrangement was plausible within the context of a shared extended Malaysian village network, as indicated in the statement of Mr Jafaar.
In my view this was a plausible explanation. There are no doubt many ways to conduct business arrangements, from listed public companies to other less well documented arrangements which are less transparent or orderly. In my view, this was not inconsistent with the applicant’s statement that he worked for Zack.
As to hearsay or weight, in my view some weight should be given to the applicant’s evidence that other persons provided payments to him as arranged by Zack, to the extent that such payments were not inconsistent with an employment relationship with the first respondent as at the date of injury.
I understood the respondents’ submissions were to the effect that the other individuals recorded in the applicant’s bank statements preceding the injury, and going back to about October 2013, were not as indicated by the applicant, and that transfers from such persons contained the entry or entries “contractor” or “contracter”, which it was said did not support the contention that the applicant was an employee.
I do not accept this submission. First, historical bank entries preceding the payment entry from Sydney Wideform on 13 April 2025 do not indicate the state of the working arrangement as at that date or thereafter. Second, bank entry references to “contractor” or “contracter”, including the Sydney Wideform entries of 23 March 2024 and 13 April 2024, are in my view not determinative of the character of the working arrangements of the applicant. The applicant said he worked exclusively for Zack “for a long time”, and that Zack was his boss. There was no statement or other evidence from any of the respondents to contradict the applicant. On balance, the entries recording “contractor” or “contracter” were in my view not persuasive or of any substantial weight in respect of the working arrangement with Zack.
Other bank entries recorded payments to the applicant with the word “gift”, including entries on 13 and 21 April 2024. Whilst these were indeed payments into the applicant’s account, there was no evidence to draw any conclusion that these were payments for work. I accept the applicant’s submissions in this regard.
In my view there was a contract of service between Zack, as director of Sydney Wideform, and the applicant. The applicant stated that he was employed by Zack as a form worker since July 2018. He said that he was paid wages by Zack for his work. At the time of injury the applicant was paid $280 per 8 hour shift, with additional overtime. He said there was no written contract. There was no evidence from the respondents to contradict this evidence.
In relation to the issue as to whether the applicant was a “worker” in the employ of the respondents, the applicant in submissions referred to decisions including, Hollis v Vabu Pty Ltd[1] and Humberstone v Northern Timber Mills.[2]
[1] [2001] HCA 44; (2001) 207 CLR 21
[2] [1949] HCA 49; (1949) 79 CLR 389
Considering the control indicia test as per Stevens v Brodribb Sawmilling Co Pty Ltd,[3] the following matters are relevant, and arise from the evidence given by the applicant in his statements:
[3] [1986] HCA 1; (1986) 160 CLR 16
(a)    the applicant was paid by Zack, or as arranged by Zack, in cash and by way of EFT;
(b)    the applicant worked an eight hour shift per day for six days per week for Zack;
(c)    Zack controlled where the applicant worked and the hours that he worked;
(d)    the applicant was supervised by Fattah , who was directed by Zack;
(e)    the applicant was paid overtime;
(f)    the applicant did not have an ABN;
(g)    the applicant did not issue tax invoices to Zack;
(h)    the applicant did not have workers compensation insurance, nor any relevant business insurance;
(i)    the applicant worked exclusively for Zack. He did not work for any other person;
(j)    the applicant did not employ another person to work with him;
(k)    the applicant did not advertise his services, and
(l)    the applicant did not supply his own tools and equipment, other than a hammer, pliers and waist belt, as required by Fattah of all the other workers.
Matters that might not be considered in favour of employment are:
(a)    the applicant provided his own hammer, pliers and belt;
(b)    bank statement payment entries with reference to “contractor” or “contracter”, and made by other persons;
(c)    there were no payslips, an issue accepted by the insurer in its dispute notices, and
(d)    the applicant wore clothing at work with the name “Formscaff”.
As discussed above, I am not persuaded by the evidence not pointing to employment in the preceding paragraph. The absence of payslips in my view is consistent with the absence of a written contract, rather than as a matter of weight contrary to employment. In relation to clothing, this in my view was evidence of the mistake that the applicant as to the legal entity of his employer, and was not evidence that was inconsistent with the first respondent being his employer.
I am further reinforced in my reasoning by the absence of any statement evidence from any respondent in these proceedings, and in particular any statement from Zack El Ajar. As I have indicated above, I have accepted the applicant’s statement evidence generally in this absence, or where on balance other evidence has not been persuasive. Further, the correspondence form Formscaff indicating employment by Mr El Ajar as director of Sydney Wideform, was also not contradicted by any evidence from Mr El Ajar. I have therefore accepted this correspondence as being of significant weight.
On balance, the above indicia support a finding that Sydney Wideform exercised control of the applicant in his work, that he was employed by Sydney Wideform, and that the applicant was a “worker”.
Additionally, support is gained for this conclusion from the initial Certificate of Capacity dated 6 May 2024 in which Dr Manorathan of the Prince of Wales Hospital recorded the employer as Sydney Wideform Australia of the same address as recorded in the Application.

The applicant had maintained in his statements that at the time of his injury he believed he was employed by Formscaff. I have found the applicant was mistaken in this regard, although I accept that this was his belief at the time of the injury. In my view, on the balance of probabilities, the applicant did not inform the Prince of Wales Hospital at the time of his admission or thereafter that he was employed by Sydney Wideform Australia.
Further, the applicant stated that shortly after admission to the Prince of Wales Hospital on
4 May 2024, he was visited by Fattah, who stayed until the applicant went for surgery on the same day. I accept the applicant’s evidence in this regard. There was no evidence or statement before me from Fattah Abdul Rahman. In my view, on the balance of probabilities, the person who attended the Prince of Wales Hospital on 4 May 2024 was Fattahhaving regard to the context of the applicant’s statements, and to the circumstances of his injury.
It follows that the most likely source of information, on the balance of probabilities, for the Certificate of Capacity dated 6 May 2024 was Fattah . Fattah , who was directed by Zack, and who supervised the applicant, was in a position to know about these matters, including the precise address of the first respondent. I find, on the balance of probabilities, that Fattah Abdul Rahman was the most likely source of information as to the identity of the employer that was recorded on the initial Certificate of Capacity dated 6 May 2024.
While of course such an entry on the Certificate of Capacity is not necessarily determinative of the issues of employment and the identity of the employer, it is a piece of relevant evidence that is in my probative and of weight in considering the weight of evidence in general.
Of note was correspondence of the insurer dated 4 July 2024 to the applicant in which it was stated that liability had been accepted, which was later declined in correspondence including 23 July 2024. It was submitted by the applicant that, following the decision of Heuston v Yore Contractors Pty Ltd (Heuston)[4], where liability had been admitted and payments had been made initially, evidence should be provided regarding cessation of payments, but no such evidence or explanation had been provided in the subsequent dispute notices. In Heuston it was said that:
“In my opinion, therefore, the continued payment of worker's compensation is admissible against the defendant in whose name the insurer defends the common law proceedings as an admission that the worker is still incapacitated at the time of such payments as a result of the injury which he received in the course of his employment - such admission always being, of course, open to explanation by way of evidence in the same way as any other informal admission is open to explanation.”
[4] Supreme Court 9 March 1992, unreported, Hunt CJ at CL,
This statement in my view extends to proceedings in the Commission. The Commission is able to make findings as to admissions, and it in my view available to make such a finding in the absence of a legislative provision otherwise.
The applicant submitted that this authority had not been reversed or distinguished with the passage of time. I was not taken to any authorities that indicated that Heuston had been overturned by authority or legislation in the period since that decision.
The applicant submitted that some payments were made, at least on his behalf, by the workers compensation insurer, as evidenced by a list of payments that were tendered in these proceedings, and which was not disputed by the respondents. There was no statement in the insurer’s correspondence dated 4 July 2024, in accepting liability in respect of the first respondent, that this was a provisional liability decision. The insurer in its later dispute notices pointed to an absence or insufficiency of evidence, including being unable to contact the employer representative nominated by the applicant, “Zaek El Arja” and “Zack El Arja at Sydney Wideform”. In my view, these were variations in spelling of the same person, that is Zack.
In circumstances where there has been no statement or relevant contrary evidence from any respondent, particularly an absence of a statement from Mr Zack El Ajar, and no explanation from the insurer as to why it changed its acceptance of liability, in my view the applicant’s submissions carry some force as to what could be regarded as the insurer’s, and hence first respondent’s, admission. Of relevance and assistance is the Certificate of Capacity and the findings that I have made in that regard above. I find that the first respondent did admit that it employed the applicant as at the time of injury on 4 May 2024.
If I am wrong in respect of this admission, then in any event the broader submission was made and is available, that an inference[5] should be made against the respondents, and, in particular, Sydney Wideform, because issues that may remain in relation to employment would be expected to be within the mind of Mr El Ajar. There was no explanation for that absence of evidence, particularly that of Mr El Ajar. There were issues for the respondents to contradict or explain in terms of the applicant’s evidence as to employment. I make the inference that untendered evidence of Mr El Ajar would not have helped the respondents’ cases, particularly that of Sydney Wideform.
[5] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
It is not necessary to consider the issue of deemed worker.
In relation to PIAWE, the applicant said that he worked 8 hour shifts for 6 days per week, and he was paid $280 per hour shift. By my calculation, this amounted to $1680 per week, with overtime which was not otherwise stated other than a reference to an additional $50. The Application stated PIAWE was $1650. The Replies stated PIAWE was $1081.05, based upon the insurer’s letter of 4 July 2024, which simply contained a bare statement of PIAWE, without more. I could find no other substantiation of these figures. I accept the applicant’s statement evidence, which was not contradicted in evidence. I find PIAWE is $1680.
In relation to capacity, the only evidence before me were Certificates of Capacity for the period claimed, which certified no capacity for work. The applicant in his statement of
9 October 2024 said that in about August 2024 “when could walk without the CAM boot and crutches” he was asked to return to work where he was told to simply sit in the shed and hand tools to workers who needed them. There was a short period from 18 June 2024 to
11 July 2024 for which there was no certificate in evidence before me. Given the nature of injury, open fracture of right tibia with open reduction and internal fixation surgery the same day, I am satisfied that the applicant had no capacity for the period claimed, as amended, in these proceedings.
There will also be a general order as to medical and treatment expenses pursuant to s 60, as against the first respondent.
There was some discussion from the bar table at the hearing that initial payments of weekly benefits had been made, but that the applicant had not received them. However, liability was denied in the dispute notices before me, including liability to pay weekly compensation. Jurisdiction is in my view invoked. The issue of actual payments is one for evidence between the parties and insurer in due course. It seems to me that an order should be made for payment by the first respondent of weekly compensation for the amended period.
It follows from the above that there will be awards in favour of the second and third respondents.

[2025] NSWPIC 486

17 September 2025