Al Hadidi v Form 1 Building and Construction Pty Ltd

[2023] NSWPICPD 42

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	AL HADIDI v Form 1 Building and Construction Pty Ltd [2023] NSWPICPD 42
APPELLANT:	Ahmed Mater Kareem Khluwi Al Hadidi
RESPONDENT:	Form 1 Building & Construction Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W6526/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	26 July 2023
ORDERS MADE ON APPEAL:	1.     The Member’s Certificate of Determination dated 28 June 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Civil proceedings – a tribunal can accept uncorroborated testimony Chanaa v Zarour [2011] NSWCA 199; Woolworths Ltd v Warfe [2013] VSCA 22; Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 discussed – tribunal not bound to accept evidence that was not the subject of cross-examination – Insurance Australia Limited t/as NRMA Insurance v John Checchia [2011] NSWCA 101; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 applied – evidence may be rejected if it is inconsistent with accepted evidence – Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 applied – where evidence is unreliable, it is open to the tribunal to look for assistance from other evidence – Devries v Australian National Railways Commission [1993] HCA 78 applied – no necessity for the Member to advert to an adverse finding if the risk of the finding is apparent – Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Adhikary, counsel
Kassira Law
Respondent:
Mr F Doak, counsel
Rankin Ellison Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	28 June 2022

INTRODUCTION AND BACKGROUND

1. Ahmed Mater Kareem Khluwi Al Hadidi (the appellant) brought proceedings in the Commission seeking weekly compensation in respect of an injury to his back while performing work for Form 1 Building & Construction Pty Ltd (the respondent) on 9 September 2019. He also claimed that he suffered from a psychological condition secondary to the back injury. The appellant asserted that he was in an employment relationship with the respondent and that his pre-injury average weekly earnings figure was $1,800.

2. The respondent disputed that the appellant was in its employ, or in the alternative that the respondent was a “deemed worker” within the meaning of cl 2 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent asserted that the appellant performed the work with the respondent as an independent contractor.

3. The dispute proceeded to arbitration before a non-presidential member of the Commission. The Member issued a Certificate of Determination dated 28 June 2022 in which she determined that the appellant was a “deemed worker” within the meaning of cl 2 of Sch 1 to the 1998 Act. The Member determined that the appellant’s pre-injury average weekly earnings figure was $625.

4. The appellant appeals the decision, asserting that the Member erred in determining that the pre-injury average weekly earnings figure was $625.

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

   “(3)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

2. Both parties have indicated that the appeal can be determined on the basis of the available documents and their written submissions.

3. I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to sub-ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

1. Given the appeal is limited to the assertion that the Member erred in the calculation of the appellant’s pre-injury average weekly earnings figure, it is not necessary to review the medical evidence or the evidence in relation to the occurrence of injury. The documents referred to below are relevant to the appeal.

Mr Ahmad Sobeih, the respondent’s director

1. Mr Ahmad Sobeih, the sole director of the respondent company, provided a statement dated 27 April 2020.[1] He stated that, at the time he met the appellant, he was contracted to supply labour to Marques Formwork (Marques) for a building site at Granville. He said that before he engaged the appellant for labouring duties, the appellant provided him with copies of the documents required to work on site. He asserted that the respondent and the appellant reached a verbal agreement that the appellant would submit weekly invoices each Tuesday for the work he carried out and the appellant would be paid in cash two days later. Mr Sobeih said that he never requested, and the appellant never provided, a tax file number or superannuation details because the appellant worked as a sub-contractor.

   [1] Application to Resolve a Dispute (ARD), pp 41–48.

2. Mr Sobeih stated that the appellant’s work hours varied, and he worked on an “as needs” basis, working from 7 am to 3.20 pm (but not every day) and occasionally worked on a Saturday from 8 am to 2 pm. Mr Sobeih asserted that there were times when the appellant was rostered to work but did not show up.

3. Mr Sobeih advised that the appellant provided his own personal protective equipment and tools of trade. He advised that the appellant initially needed some guidance in the performance of the work. Mr Sobeih said that the appellant passed a site induction assessment conducted by Marques before working on the site. He said that the assessment was recorded in writing, and it was noted in the assessment that the appellant’s preferred language was English. Mr Sobeih asserted that the appellant was fluent in English.

4. Mr Sobeih recalled being advised of the appellant’s injury and advised that the appellant told him he had been removing a small piece of plywood. He referred to the treatment sought by the appellant and stated that the appellant had a clearance to attend work on 11 September 2019 but did not arrive. Mr Sobeih indicated that the appellant worked on 12 and 13 September 2019, following which Mr Sobeih advised the appellant that he had no more work available. Mr Sobeih described the appellant as “unreliable”. He said that he had heard that the appellant was working elsewhere after the injury, and he said that the appellant contacted him on two occasions, seeking further work.

5. Mr Sobeih recalled that about a week after the appellant had commenced work, he disclosed to Mr Sobeih that he had been charged with driving under the influence of alcohol and required time off work to attend court.

6. Mr Sobeih reiterated that the appellant was working as a sub-contractor, provided his own tools and equipment, did not complete a taxation declaration and was not entitled to superannuation or paid annual or sick leave.

The respondent’s “time sheet”

1. A document described by the respondent as a “time sheet” was annexed to Mr Sobeih’s statement.[2] The document recorded that the appellant worked on the following days:

   [2] ARD, pp 115–116.

   (a)    14 and 15 August 2019, from 7 am to 3.20 pm (8 hours each day);

   (b)    16 August 2019, from 7 am to 1 pm (6 hours);

   (c)    22 and 23 August 2019, from 7 am to 3.20 pm (8 hours each day);

   (d)    26, 27 and 28 August 2019, from 7 am to 3.20 pm (8 hours each day);

   (e)    30 August 2019 from 7 am to 3.20 pm (but recorded as 2 hours);

   (f)    from 2 to 6 September 2019 (5 days) from 7 am to 3.20 pm (8 hours each day);

   (g)    7 September 2019 from 8 am to 11 am (3 hours);

   (h)    9 September 2019 from 7 am to 3.20 pm (but recorded as 2 hours);

   (i)    12 September 2019 from 7 am to 3.20 pm (8 hours), and

   (j)    13 September 2019 from 7 am to 2.20 pm (recorded as 6 hours).

The tax invoices

1. Mr Sobeih also produced five tax invoices.[3] Each of the invoices are directed to Form 1 Building & Construction Pty Ltd, are said to be supplied by “Mr Ahmad Al Hadidi” and bear the supplier’s Australian Business Number (ABN) xx xxx xxx 641. The invoices, which are handwritten in well-formed English characters and without spelling errors, record that:

   (a)    on 20 August 2019, $550 was charged in respect of 22 hours of work for the period from 14 August 2019 to 20 August 2019;

   (b)    on 27 August 2019, $900 was charged in respect of 36 hours of work for the period from 21 August 2019 to 27 August 2019;

   (c)    on 3 September 2019, $650 was charged in respect of 26 hours of work for the period from 28 August 2019 to 3 September 2019;

   (d)    on 10 September 2019, $725 was charged in respect of 29 hours of work for the period from 4 September 2019 to 10 September 2019, and

   (e)    on 17 September 2019, $350 was charged in respect of 14 hours of work for the period from 11 September 2019 to 17 September 2019.

   [3] ARD, pp 118–122.

The appellant’s statement

1. The appellant provided a statement dated 17 December 2021.[4] He advised that he had very limited English communication skills. He said that, although his name is Ahmed Mater Kareem Khluwi Al Hadidi, his name is sometimes shortened to “Ahmed Al Hadidi.” He advised that a relative had arranged for him to contact Mr Ahmad Sobeih in relation to employment with the respondent. He said that he commenced employment with the respondent on 12 August 2019 and reported to Mr Sobeih, who he believed was a director of the respondent.

   [4] ARD, pp 2–14.

2. The appellant stated that the respondent agreed to employ him for set hours per week, working Monday to Friday from 7 am to 3.30 pm (with half hour breaks for morning tea and lunch), and 7 am to 12 pm on Saturdays, with overtime available. He said that the ordinary hourly rate was $45, the weekday overtime rate was $67.50 per hour and the weekend overtime was $90 per hour. He described the work requirements and said that the respondent directed him as to the tasks to be undertaken and supplied all the materials and equipment. He indicated that he would be paid in accordance with his time sheet each week.

3. The appellant said that there was no written contract of employment, and he was not required to submit tax invoices for the work he did. He provided details of the how the injury occurred, the treatment provided and the ongoing difficulties.

4. The appellant referred to the respondent’s assertion that he was not in an employment relationship with the respondent, that he was required to submit tax invoices for the work he did as a subcontractor and that he operated under the ABN xx xxx xxx 641. The appellant denied that he ever provided tax invoices to the respondent and asserted that the tax invoices produced by the respondent were fraudulent. He pointed out that the handwriting was not his, the name was spelt “Ahmad” Al Hadidi but his given name was Ahmed and the ABN recorded on the tax invoices did not belong to him. He added that he had obtained an ABN in his name in 2017 at the request of a former contractor, which was ABN xx xxx xxx 204, and which was no longer active.

5. The appellant stated that he would be paid in cash by Mr Sobeih for the work he performed during the week on either Friday or Saturday after work, in accordance with the hours that he worked. He said that he would sign a time sheet on arrival at the site and sign off when he had finished. He asserted that he was paid between $1,600 and $1,800 per week.

6. The appellant stated that he had offered his bank account details, his tax file number and his superannuation details to Mr Sobeih, who advised that he did not require them, and would obtain them from him later.

7. The appellant disclosed that he had experienced previous “discomfort” in his back as a result of the nature of the work he performed over the years, but that the symptoms did not interfere with his ability to work. He described the occurrence of the back injury. He indicated that, following the injury, he attempted to return to work on 12 September 2019 and 13 September 2019 but was unable to work because of his back pain.

8. The appellant advised that he had read the statement of Mr Sobeih. He denied that he had given Mr Sobeih any tax invoices and that he was contracted as a “sub-contractor.” He disputed Mr Sobeih’s assertion that he had never tried to give Mr Sobeih his tax file number, or superannuation details. The appellant further disputed that he had only worked for the respondent on an “as needs” basis and that he provided his own tools.

9. The appellant denied the allegation that he spoke English fluently. He said that Mr Sobeih completed all of the induction documentation and may have indicated in that documentation that the appellant spoke English fluently. The appellant asserted that he and Mr Sobeih both spoke Arabic and used Arabic to communicate with each other. The appellant stated that he was required to work the agreed days and hours but admitted that he was absent at times because he was unwell.

10. The appellant disputed other aspects of Mr Sobeih’s statement relating to the work he was performing and the circumstances following the injury, including Mr Sobeih’s allegation that the appellant worked on 12 and 13 September 2019. The appellant explained that he attended the worksite on those days but was unable to work. The appellant further denied that he had worked on a site in Canberra after the work injury and that he had been caught driving under the influence of alcohol and needed time off work to attend court.

The appellant’s unsigned statement

1. The appellant was interviewed on 16 April 2020[5] by an investigator retained by the respondent. The interviewer recorded that the appellant had left the interview before it was completed and did not sign the document. The information recorded in the document was largely consistent with the appellant’s signed statement dated 17 December 2021, except that the document recorded that the appellant asserted that the respondent did not provide the tools and that he was required to supply his own personal protection equipment.

   [5] ARD, pp 50–62.

2. The interviewer also recorded that the appellant disclosed a prior work-related back injury when working in Canberra for which the appellant claimed workers compensation and the claim was “ongoing.”

The appellant’s further statement

1. The appellant provided a further statement dated 24 March 2022.[6] The appellant referred to the respondent’s document which was described by the respondent as its “time sheet.” The appellant asserted that the document was “fraudulent and misleading” and did not reflect the dates and hours that he worked. The appellant indicated that he commenced with the respondent in the week commencing 12 August 2019 and completed his induction on Wednesday 14 August 2019. He said he worked on the following days:

   (a)    on 14, 15 and 16 August 2019 from 7 am to 4 pm (a total of 27 hours) with the time from 3.30 pm to 4 pm constituting overtime;

   (b)    during the week 19 August to 25 August 2019, from 7 am to 4 pm (45 hours, including 30 minutes overtime);

   (c)    in the week from 26 August to 1 September 2019, Monday to Friday from 7 am to 4 pm (45 hours, including 30 minutes overtime), and

   (d)    for the week 2 September to 8 September 2019, from Monday to Friday from 7 am to 4 pm and Saturday from 7 am to 12 pm (50 hours).

   [6] Application to Admit Late Documents (AALD) dated 23 June 2022, pp 3–4.

2. The appellant asserted that he worked an average of 42 hours per week.

Mr Muntather Doali, taxation agent

1. Mr Muntather Doali was the appellant’s taxation agent. Mr Doali wrote to the appellant’s legal representatives on 9 December 2021, providing ABN search results in respect of:

   (a)    ABN xx xxx xxx 204, which was the closed ABN number that the appellant had used in the past, and

   (b)    ABN xx xxx xxx 641, which Mr Doali said did not relate to the appellant.[7]

   [7] ARD, pp 230–232.

2. Mr Doali wrote to the appellant’s legal representatives again on 24 March 2022.[8] He confirmed that the appellant did not operate under the ABN xx xxx xxx 641. He referred to the appellant’s taxation returns, payments summaries and notices of assessment which he attached to his correspondence and advised that those documents “indicate and confirm that there is no ABN income included or mentioned” in those records.

   [8] AALD dated 23 June 2022, p 22.

3. Attached to the letter were Notices of Assessments issued by the Australian Taxation Office for the financial years ending 30 June 2019 and 30 June 2020.[9] Those documents disclosed the total taxable income earned during the financial year from all sources after allowable deductions. Notably, the information contained therein provided no evidence of what the appellant earned for work performed for the respondent.

   [9] AALD dated 23 June 2022, pp 23–24 and 27–28.

4. A “Pre-filling report” created on 24 March 2022 disclosed that for the 2019–2020 financial year a PAYG payment summary for the financial year ending 30 June 2020 provided by AZZ Form Pty Ltd showed gross earnings for that year from that company of $6,062. In addition, the appellant received government payments in the nature of a “special benefit” from 7 August 2019 to 30 June 2020 in the amount of $15,636.[10]

   [10] AALD dated 23 June 2022, p 25.

5. The only taxation return included in the documents was in respect of the 2021 financial year.[11]

   [11] AALD dated 23 June 2022, pp 32–39.

THE MEMBER’S REASONS

1. The Member noted the issues in dispute, which included “the proper calculation of pre-injury average weekly earnings”.[12] The Member summarised the appellant’s statement evidence. Relevantly, the Member recorded the appellant’s evidence as to:

   (a) the hours and days the appellant said that he worked (reproduced by me at [30] above);

   (b)    the working arrangements the appellant said he had with the respondent, and

   (c)    the appellant being paid in cash between $1,600 to $1,800 on a weekly basis in accordance with a time sheet signed by him at the beginning and end of each workday.

   [12] Al Hadidi v Form1 Building & Construction Pty Ltd [2022] NSWPIC 334 (reasons), [9].

2. The Member described the occurrence of injury and noted the treatment provided to the appellant thereafter. She noted that the appellant said he had attempted to work on 12 and 13 September 2019 with pain killers to manage his pain, but was unable to complete the tasks and ceased work. The Member further noted that the appellant denied that he had only worked when the respondent needed him, denied that he provided his own tools and equipment and denied that he had worked or had sought work after the injury. The Member referred to the appellant’s assertion that the time sheet produced by the respondent was fraudulent and misleading.

3. The Member reviewed the evidence provided by Mr Doali in relation to the ABN, the time sheet and the invoices. She summarised the medical evidence and provided a summary of the written submissions provided by both parties.

4. The Member determined that she was satisfied that the appellant was a “deemed worker” within the meaning of cl 2 of Sch 1 to the 1998 Act.

5. The Member noted that there was a conflict in the evidence between the appellant’s evidence and that of Mr Sobeih. She referred to the appellant’s assertion that the tax invoices and time sheet were fraudulent, his name had been misspelt on the invoices, and the ABN did not belong to him. She said that the appellant submitted that his evidence should be preferred. The Member observed that, on her review of the evidence, it was notable that the English spelling of Arabic names was frequently recorded differently. The Member referred to the tax invoices bearing the appellant’s first and last names. She further referred to the evidence of the ABN recorded on the tax invoices. She observed that the evidentiary value of the screenshot provided by Mr Doali was uncertain. She noted that it was only partly visible, recorded a date of birth consistent with that of the appellant and only appeared to indicate that the Australian Taxation Office did not have any record of income reports or declarations pertaining to the ABN. The Member said that in the context of the appellant being paid in cash, and it appeared that those payments were not declared in the appellant’s taxation records for the financial year ending 2019, she was unpersuaded that the ABN on the tax invoices did not belong to the appellant.

1. The Member pointed to the appellant’s submission that Mr Sobeih’s evidence was inconsistent with the record of the general practitioner on the day of injury that the appellant attended “with Ahmad his supervisor”.[13] The Member did not consider that inconsistency sufficient to conclude that Mr Sobeih’s entire evidence was unreliable.

   [13] Clinical entry dated 11 September 2019, ARD, p 226.

2. The Member described the appellant’s evidence as having “unusual features.”[14] She referred to the evidence that the appellant recalled precisely the hours he worked over all of the weeks that he said he worked, without having any documentary assistance. The Member further referred to the appellant’s detailed recollection of the verbal agreement which she also considered unusual in the context of the passage of time and what she described as “the comparative informality of the other aspects of the employment arrangement.”[15] She explained that the appellant was not paid sick leave or other leave, no superannuation was paid and no taxation was deducted, and the appellant did not appear to have raised a complaint about those matters. The Member added that there was no explanation for the inconsistencies between the unsigned statement taken by the investigator and the appellant’s evidence, but given the statement was not signed she placed no weight on those matters.

   [14] Reasons, [283].

   [15] Reasons, [284].

3. The Member concluded that she was not satisfied that the appellant was a worker within the meaning of s 4 of the 1998 Act but she was satisfied that he was a deemed worker within the meaning of cl 2 of Sch 1 of the 1998 Act. She found that the appellant suffered a secondary psychological condition as a result of the back injury and had no capacity for work.

4. The Member proceeded to determine the appellant’s pre-injury average weekly earnings. She observed that the appellant’s evidence as to the number of hours he worked and the amount he was paid was completely unsupported by documentary evidence. She pointed to the absence of evidence that the income he received was reported in his taxation return for that financial year. She added that there were no bank statements, wage envelopes or other relevant evidence. She pointed to the appellant’s assertion that his rate of pay with the respondent was consistent with the amount he received in his former employment with AZZ Form Pty Ltd. The Member noted that a PAYG summary from that former employment disclosed that the appellant received $6,062 from 1 July 2019. She referred to the appellant’s evidence that he had worked for that employer for five weeks prior to commencing with the respondent, that is, the period from 1 July 2019 to 6 August 2019, which would result in an average weekly amount of $1,212, and not the amount suggested by the appellant.

5. The Member reproduced the former s 44C(1) and s 44D(1)(b) of the Workers Compensation Act 1987 (the 1987 Act), She noted that, in accordance with those provisions, only the appellant’s earnings with the respondent were relevant to the calculation of the pre-injury average weekly earnings. The Member looked to the documentary evidence produced by the respondent attached to Mr Sobeih’s statement, which she said suggested that the appellant was paid $25 per hour and the total hours worked between 14 August 2019 and 13 September 2019 was 127 hours. The Member noted that the appellant asserted that the tax invoices and time sheet were fraudulent and misleading. The Member referred to her earlier reasons that the appellant’s evidence did not persuade her that the documents produced by Mr Sobeih were unreliable. She added that the appellant’s evidence in parts was either problematic or inconsistent and was not supported by any corroborative evidence.

6. The Member concluded that she was not satisfied on the balance of probabilities that the appellant’s assertion as to his pre-injury average weekly earnings was correct. The Member observed that the respondent’s wages schedule asserting the pre-injury average weekly earnings to be $625 was consistent with the documentary evidence and, after weighing the evidence before her, she accepted the respondent’s figure. She awarded the appellant weekly compensation pursuant to ss 36(1)(a) and 37(1)(a) of the 1987 Act from 10 September 2019 on the basis of a pre-injury average weekly earnings figure of $625, as indexed from time to time. The Member declined to award weekly payments pursuant to s 38 of the 1987 Act for the period after the first 130 weeks, because the appellant had not asserted such a claim and did not have evidence to support it.

7. The Member proceeded to determine the appellant’s entitlement to treatment expenses in accordance with s 60 of the 1987 Act.

8. The Certificate of Determination issued on 28 June 2022 records:

   “The Commission determines:

   1. The [appellant] was a ‘deemed worker’ pursuant to cl 2 of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998.

   2. The [appellant] sustained an injury to his lumbar spine pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 on 9 September 2019.

   3.     The [appellant] sustained a secondary psychological condition as a result of the injury to his lumbar spine.

   4.     During the period from 10 September 2019 onwards, the [appellant] had no current capacity for work as a result of the injury on 9 September 2019.

   5.     The [appellant’s] pre-injury average weekly earnings (PIAWE) figure was $625.

   The Commission orders:

   1. The respondent to pay weekly compensation from 10 September 2019 onwards pursuant to ss 36(1)(a) and 37(1)(a) of the Workers Compensation Act 1987 based on a PIAWE figure of $625, as periodically indexed.

   2. The Commission declines to make any order for ongoing weekly compensation in accordance with s 38 of the Workers Compensation Act 1987.

   3. The respondent to pay the [appellant’s] reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.”

GROUNDS OF APPEAL

1. The appellant brings five grounds of appeal, alleging error on the part of the Member as follows:

   (a)    Ground One: error of fact in determining that the tax invoices and ABN xx xxx xxx 641 belonged to the appellant;

   (b)    Ground Two: error of law by failing to respond to substantial, clearly articulated arguments;

   (c)    Ground Three: error of law by making findings and determinations without putting the appellant on notice that she intended to do so;

   (d)    Ground Four: error of law by requiring the appellant to corroborate his evidence in order to succeed, and

   (e)    Ground Five error of fact by determining the appellant’s pre-injury average weekly earnings figure to be $625 per week.

SUBMISSIONS

As to Ground One

The appellant’s submissions

1. The appellant refers to the Member’s determination that the tax invoices and ABN xx xxx xxx 641 were reliable and therefore related to the appellant. The appellant says that on the basis of the appellant’s statements and the evidence of Mr Doali, he argued that the tax invoices were fraudulent. He points out that he submitted to the Member that:

   (a)    the name on the invoices was not his and that submission was supported by his driver’s licence, which was in evidence;

   (b)    the handwriting on the invoices was not his, he denied preparing the invoices and denied providing invoices to the respondent;

   (c)    the ABN recorded on the tax invoices was not his, and

   (d)    he could not read or write English.

2. The appellant refers to the evidence of Mr Doali, who pointed to an Australian Taxation Office database search, which Mr Doali said indicated that the ABN referred to did not match the Australian Taxation Office’s records. The appellant submits that the Member erred when she determined that the tax invoices and ABN xx xxx xxx 641 belonged to him.

3. The appellant observes that the Member acknowledged that the appellant’s first name on the tax invoices was spelt differently to his name on his driver’s licence, but then said that it was a “notable feature of the evidence before [her] that the English spelling of Arabic names is often recorded differently in different locations.”[16] The appellant submits that the Member overlooked the fact that Mr Sobeih asserted that the tax invoices were submitted by the appellant himself but the appellant denied that allegation. The appellant further submits that the Member overlooked his evidence that he could not read or write in English and the details recorded in the tax invoices were written by hand and in English.

   [16] Reasons, [279].

4. The appellant asserts that the Member thus ignored material facts, made a critical finding of fact that was not based upon the evidence, demonstrably misunderstood the relevant evidence and failed to consider the relevant evidence. The appellant submits that, had the Member taken into account his submissions and that evidence, the manner in which she dealt with the evidence would have been different. The appellant contends that, had the Member given regard to that evidence and his submissions, she would have afforded greater weight to the evidence of the incorrect spelling of his name and his submissions that the tax invoices and the ABN were not his. The appellant says that the fact that the appellant’s name was misspelt on the tax invoices would indicate that they did not belong to him. The appellant asserts that there was no suggestion that some other person submitted the invoices, so that if the five invoices were submitted by the appellant, he had misspelt his own name on all five occasions with a spelling that was different to how it appeared on his driver’s licence.

5. The appellant asserts that his evidence that he could not read or write English was not challenged or contradicted. He submits that, had that evidence and his submissions been considered, the Member would have provided reasons and determined the issue as to whether the tax invoices belonged to the appellant. The appellant points out that at [9] of its written submissions, the respondent accepted that the appellant had a lack of proficiency in the English language.

6. The appellant describes as erroneous the Member’s observation that Arabic names were often recorded differently in the evidence and asserts that that fact is irrelevant when the appellant’s evidence was that he did not create the tax invoices. The appellant submits that the Member did not find that a person would spell their own name wrongly on five occasions if they had an Arabic name and there was no evidence to support such a finding.

7. The appellant asserts that because he denied creating the invoices, the fact that the name was different to his name on his driver’s licence was critical and the Member ought to have placed more weight than that afforded to it in her reasons at [279]. The appellant adds that there was no evidence lodged or submissions made, that the “English spelling of the appellant’s name would have been different given a particular circumstance.”[17] The appellant submits that, as an example, the Member did not indicate why a name on a driver’s licence would be different to a name on a tax invoice created in relation to work performed in New South Wales. The appellant points out that the spelling of the name on the tax invoices was different to how it was spelt on all of the other documents, including the taxation and medical records. The appellant refers to the time sheet and says that even that document bore the correct spelling of his name. The appellant submits that the appellant’s name was spelt consistently on all other documents, apart from in the tax invoices.

   [17] Appellant’s appeal submissions, [46].

8. The appellant submits that the Member did not reconcile her “determinations about the English spelling [of his name] being different given the location in the light of this fact.”[18] The appellant reiterates that, if the Member had given regard to the evidence and his submissions, she would have reached a different conclusion. The appellant asserts that the Member failed to consider relevant evidence, and that other probabilities so outweighed the Member’s conclusions that it demonstrates that the Member was wrong.

   [18] Appellant’s appeal submissions, [50].

9. The appellant further submits that the Member’s findings in respect of the ABN recorded at [280] to [281] of her reasons were also in error. The appellant reproduces [281] of the Member’s reasons wherein the Member observed that:

   “In denying that the ABN belonged to him, the [appellant] relied on a screenshot of a partially visible search of ATO database by a tax agent in which it is suggested that the [appellant’s] date of birth and the ABN did not match. The evidentiary value of that search is uncertain insofar as it appears to only suggest that the ATO did not hold records such as income reports or declarations containing both the ABN and the [appellant’s] date of birth. Given the evidence indicating that the [appellant] had been paid by the respondent in cash and does not appear to have declared that income in his 2019/20 tax return, I am not satisfied that this is persuasive evidence that the ABN number appearing on the tax invoices did not belong to the [appellant].”

10. The appellant asserts that Mr Doali’s evidence was unequivocal that the ABN recorded on the tax invoices did not belong to the appellant and his evidence was not predicated upon the declaration, or non-declaration of income. The appellant submits that the Member was therefore in error in respect of those findings. The appellant points to Mr Doali’s letter dated 24 March 2022, in which Mr Doali categorically stated that the ABN xx xxx xxx 641 did not belong to the appellant because it did not match the appellant’s particulars.

11. The appellant submits that:

    “When one looks at the specific screenshot of the ATO database (at page [232] of the ARD), there is no indication that the search was predicated or dependent upon declaration of income. There is also no indication that all the search revealed was that the ‘ATO did not hold records such as income reports or declarations containing both the ABN and the [appellant’s] date of birth’. Accordingly, it is submitted that these findings were in error.”[19]

    [19] Appellant’s appeal submissions, [58].

12. The appellant asserts that the respondent did not allege or make submissions about those matters and the Member did not put the appellant on notice that she intended to treat this evidence on that basis. The appellant submits that the results of the search conducted by Mr Doali in relation to the ABN resulted in Mr Doali concluding that there was sufficient proof that the appellant’s accounting records did not match the ABN and the ABN belonged to some other person with a name which was similar to the appellant.

13. The appellant submits that the manner in which the Member treated the evidence of Mr Doali discloses that she made findings that were not based on the evidence, that she demonstrably misunderstood the evidence, and her findings were wrong.

The respondent’s submissions

1. The respondent submits that the Member correctly observed that the appellant’s claim that he earned between $1,600 and $1,800 per week for an average of 43 hours per week was unsupported by any documentary evidence. The respondent refers to the absence of a taxation return for the financial year ending 30 June 2020 and the fact that the appellant was paid in cash, which the Member noted. The respondent submits that the Member’s observations about those matters were open to her and are not open to challenge. The respondent adds that the Member was correct to reject the appellant’s assertion that he earned the same amount as he had earned in his former employment with AZZ Form Pty Ltd. The respondent submits that the fact that the appellant only earned an average of $1,212 gross per week with the former employer highlights the unreliable nature of the appellant’s evidence and points out that the Member noted that inconsistency.

2. The respondent refers to the appellant’s allegation that the Member erred by determining that the invoices were those of the appellant and submits that the evidence must be looked at as a whole. The respondent says that the appellant’s evidence was that he had performed contract work for two other companies since he had arrived in Australia in 2012 and in those circumstances, it would be more than reasonable to infer that he had sufficient English skills to be able to complete an invoice.

3. The respondent describes the appellant’s reliance on Mr Doali’s evidence as “problematic.”[20] The respondent points to Mr Doali’s letter dated 9 December 2021, in which Mr Doali advised that ABN xx xxx xxx 641 did not match the appellant’s name but bore a similar name which was not the name of the appellant. Further, that ABN appeared on the tax invoices bearing the name “Ahmad Al Hadidi,” which the respondent says was the name associated with ABN xx xxx xxx 641. The respondent asserts that these proceedings were in fact initiated in the name of “Ahmad Al Haditi.” The respondent submits that there was no evidence in this case that the appellant identified himself to the respondent as “Ahmed Mater Khluwi Al Hadidi” and the evidence does not exclude the possibility that the appellant held an additional ABN in the name of Ahmad Al Hadidi. The respondent says that all the evidence does show is that the appellant held an ABN in his full name, that is, ABN xx xxx xxx 204.

   [20] Respondent’s appeal submissions, [14].

4. The respondent refers to the appellant’s submission that the result of the search of ABN xx xxx xxx 641 was not reliant upon a declaration of income and that there was no basis for the Member to conclude that the results of the search were limited to the fact that the Australian Taxation Office did not have a record of income reports or declarations under that ABN in the appellant’s name. The respondent also refers to the appellant’s submission that the Member failed to give notice to the appellant that she intended to deal with that evidence on that basis. The respondent submits that, if the appellant is suggesting that the appellant was somehow disadvantaged by the manner in which the Member dealt with the search result document from the Australian Taxation Office, then all that document established was that the ABN the subject of that search did not match the appellant’s date of birth. The respondent asserts that the evidence did not exclude the possibility that the ABN was lodged in the appellant’s name with a different date of birth.

5. The respondent submits that the Member considered that the evidence about the ABN was uncertain, and that she not persuaded by that evidence that the ABN did not belong to the appellant. The respondent asserts that the Member’s conclusion about that evidence was open to her.

6. The respondent refers to the Member’s ultimate finding that she was not satisfied on the balance of probabilities that the pre-injury average weekly earnings figure claimed by the appellant was correct. The respondent asserts that such a finding was open to the Member on the evidence. The respondent contends that the appellant’s grounds of appeal and submissions do not identify how the Member’s conclusion was wrong. The respondent points the appellant’s acknowledgment that, in order to disturb the Member’s findings of facts, the appellant must establish that other probabilities so outweigh that chosen by the Member that the Member’s conclusion was wrong. The respondent submits that this ground of appeal does not establish that presidential intervention is justified.

The appellant’s submissions in reply

1. The appellant refers to his submission that he earned income with the respondent which was similar to the income he received with his former employer, AZZ Form Pty Ltd. The appellant concedes that there is an inconsistency in what he considered to be the amount earned with the former employer, which the Member pointed out was significantly lower than the figure of $1,800 earned with the respondent. The appellant explains that he had mistakenly taken the figure of $6,062 reported in the pre-filling report to be a net payment, rather than a gross figure. The appellant submits that this was a mistake on his part and it was not his intention to mislead. The appellant submits that the error is not relevant to the appeal and the respondent’s submission that the appellant’s reliance upon it was misleading and should be rejected as it is baseless.

1. The appellant contends that:

   (a)    there is no evidence that he had the ability to complete a tax invoice;

   (b)    the appellant’s evidence that the ABN searches revealed that the ABN xx xxx xxx 641 was not his was not dependant only upon the name, but included the appellant’s a date of birth;

   (c)    the respondent has failed to take into account that the given name on the tax invoices was “Ahmad”, not “Ahmed”;

   (d)    the assertion that these proceedings were brought in the name of “Ahmad” (rather than “Ahmed”) Al Hadidi was factually incorrect;

   (e)    there is no evidence to support the respondent’s submission that Mr Doali’s evidence does not exclude the possibility that the appellant operated another ABN in the name of Ahmad Al Hadidi, and

   (f)    the appellant did not rely upon the ABN search alone but relied upon the entirety of the evidence of Mr Doali.

As to Ground Two

The appellant’s submissions

1. The appellant submits that the Member failed to determine the matter on a basis put to her and failed to deal with his clearly articulated submission that the name on the tax invoices was not his, the handwriting was not his and he could not read and write English, which was proof that the tax invoices were not his. The appellant submits that, while the Member addressed that evidence, she did not explain why she accepted the tax invoices as evidence when the appellant’s submissions asserted that they were not his. The appellant asserts that, had the Member taken into account his submissions, her findings in respect of the tax invoices, and the ABN, ought to have been different. The appellant submits that it could not be said that the error would not have affected the outcome. The appellant relies on Dranichnikov v Minister for Immigration & Multicultural Affairs[21] as authority for the proposition that a failure on the part of a decision-maker to respond to a clearly articulated argument can constitute an error of law.

   [21] [2003] HCA 26 (Dranichnikov).

2. The appellant submits that the Member would not have excused the misspelling of the appellant’s name on the tax invoices for the reason that she expressed in [279] of her reasons if the tax invoices were his. The appellant adds that the Member did not deal with the fact that the tax invoices were in English, and the appellant’s evidence was that he did not read or write English.

3. The appellant refers to the Member’s reasoning at [339], wherein the Member acknowledged that the appellant denied that the tax invoices were his and asserted that the tax invoices and time sheet were fraudulent. The appellant further refers to the Member’s reasoning at [340] that, on the basis of her earlier reasons about the state of the evidence, she was not persuaded that the respondent’s documents were unreliable.

4. The appellant says he made submissions to the Member that she ought not to accept the information on the time sheet because of the issues with the respondent’s evidence as a whole. That is, that:

   (a)    the handwriting on the tax invoices was written in English;

   (b)    the appellant’s name was misspelt;

   (c)    the ABN was not related to the appellant;

   (d)    the appellant and Mr Doali were not cross-examined;

   (e)    there was an inconsistency about whether Mr Sobeih attended the doctor with the appellant, and

   (f)    the respondent failed to call evidence to explain the inconsistencies.

5. The appellant also refers to his statement dated 24 March 2022, in which he asserted that the time sheet was fraudulent and nominated what he recalled were the days and hours worked, which he said were 42 hours per week on average. The appellant submits that the Member accepted the time sheet without addressing the submissions made by the appellant.

6. The appellant reiterates that, if the submissions had been dealt with, the outcome ought to have been different and “[a]t the very least … had these errors not been committed, it could not be said that the result could not be different.”[22]

   [22] Appellant’s appeal submissions, [81].

The respondent’s submissions

1. The respondent submits that the appellant’s reliance on Dranichnikov indicates that the appellant may be asserting that he was denied natural justice in that the Member failed to respond to his submissions. The respondent contends that Dranichnikov does not apply in this case and the respondent’s reliance on the extract quoted was misleading. The respondent submits that the facts in Dranichnikov were that an unrepresented litigant presented a number of arguments in support of his application for a protection visa which had not been considered by (the respondent says) the primary decision-maker. The respondent asserts that, in that authority, the High Court did not address “the failure of a primary decision-maker in a tribunal in adjudicated proceedings to specifically address each and every argument put on behalf of a party in those proceedings.”[23]

   [23] Respondent appeal submissions, [20].

2. The respondent asserts that the Member addressed the appellant’s submissions in her reasons and her reasons disclose no error. The respondent submits that in considering the appellant’s submissions, the observations made in Singh v FTW Products Pty Ltd[24] should be taken into account. That is, the Member’s reasons should be read as a whole, and a Presidential member is not required to comb through the Member’s findings or reasons in search of error. The respondent submits that this ground of appeal should be rejected.

   [24] [2007] NSWWCCPD 230.

The appellant’s submissions in reply

1. The appellant submits that it appears that the respondent is suggesting that Dranichnikov does not apply to proceedings in the Commission. The appellant submits that the Presidential decisions of Mooney v White[25] and Hernandez v State Rail Authority of NSW[26] demonstrate that Dranichnikov can apply.

   [25] [2022] NSWPICPD 13.

   [26] [2022] NSWPICPD 5.

2. The appellant refers to the respondent’s submission that Dranichnikov does not require the Member to address each and every submission. The appellant submits that the respondent’s submissions are misconceived and fail to give proper regard to the appellant’s submissions. The appellant adds that the respondent has not identified any of the Member’s reasons which might support the respondent’s assertion that the Member addressed the appellant’s submissions in her reasons.

As to Ground Three

The appellant’s submissions

1. The appellant cites the High Court decision of Minister for Immigration and Citizenship v SZGUR[27] as authority to say that a decision-maker has an obligation to advise a party of an intention to make an adverse finding if the conclusion was not obvious, in order to give the party the right to be heard. The appellant also refers to Re Refugee Review Tribunal; Ex parte AALA[28] and Ucar v Nylex Industrial Products Pty Ltd,[29] which the appellant submits are authorities also dealing with the requirement for the decision-maker to draw a party’s attention to the risk of an adverse finding if the risk is not apparent.

   [27] [2011] HCA 1.

   [28] [2000] HCA 57.

   [29] [2007] VSCA 181 (Ucar).

2. The appellant asserts that the Member denied him procedural fairness by making findings that were adverse to him and by accepting the evidence relied upon by the respondent, which affected the Member’s determination of the appellant’s pre-injury average weekly earnings. The “findings” alluded to by the appellant were the following observations made by the Member:

   “There are some unusual features in the [appellant’s] own evidence. For example, the [appellant’s] precise recollection of the hours he worked in all weeks for the respondent as set out in his most recent statement is unusual given the absence of any documentary record of the hours worked on which the appellant relies and the passage of time.

   The relative detail in the alleged verbal agreement described in the [appellant’s] 17 December 2021 statement is also somewhat unusual given the comparative informality of other aspects of the employment arrangement. There is no suggestion the [appellant] was paid sick leave or any other leave, that tax was deducted or superannuation paid. Nor does the [appellant] suggest that he pressed for those entitlements when they were not arranged.”[30]

   [30] Reasons, [283]–[284].

3. The appellant submits that the respondent did not challenge his lay evidence in the manner adopted by the Member or submit that it was possible to make such findings. The appellant says that he was not put on notice in any dispute notice issued by the respondent that his evidence would be challenged on that basis and the Member did not, at any stage, put the appellant on notice that she intended to deal with the appellant’s evidence in that manner.

4. The appellant asserts that the Member made adverse findings without warning him of the risk of such findings and did not afford the appellant the opportunity to adduce evidence or make submissions addressing those issues. The appellant complains that he was caught by surprise. The appellant submits that, had he been given notice, he would have lodged submissions that:

   (a)    the statement as to the hours and days he worked was based upon his recollection, and

   (b)    he only gave evidence about the conversations he had, the hours he worked, and his earnings which were matters to which he was privy.

5. The appellant asserts that the Member’s findings were not related to his credibility, so that the Member’s findings did not necessarily inhere in the issues which required determination. The appellant asserts that a practical injustice arose in this matter, and he was denied a fair hearing. He adds that it cannot be concluded that a different outcome could not have resulted if he had been given the opportunity to deal with those issues by making further submissions or by adducing further evidence.

The respondent’s submissions

1. The respondent submits that the appellant has the same difficulty in this ground as that described by the respondent under Ground Two of the appeal. The respondent reiterates that the authorities relied upon by the appellant are decisions from administrative decision-makers and not determinations made by a primary decision-maker in a tribunal in “adjudicated proceedings.”[31] The respondent submits that the Member’s analysis of the evidence and her reasoning process were open to her, and the appellant’s submissions do not identify any error.

   [31] Respondent’s appeal submissions, [23].

2. The respondent submits that the Member was required to address the evidence and the issues raised, which she did. The respondent says that the Member’s analysis of the evidence did not require the appellant to be put on notice or make further submissions to address the issues. The respondent says that this ground of appeal should be rejected.

The appellant’s submissions in reply

1. The appellant submits that the respondent’s submission that the authorities relied upon by the appellant do not apply is not consistent with the Presidential decisions of Mani v Secretary, Department of Education[32] and JA & MA Costa Pty Ltd v Makouk,[33] in which those authorities were applied.

As to Ground Four

[32] [2021] NSWPICPD 3.

[33] [2021] NSWPICPD 11.

The appellant’s submissions

1. The appellant refers to the Member’s reasons in respect of the issue as to whether the appellant was a “worker” pursuant to s 4 of the 1998 Act, where the Member said:

   “It is the [appellant’s] evidentiary onus to establish that he was a worker for the purposes of s 4 of the 1998 Act. Given the evidentiary inconsistencies described above and in the absence of any form of documentary corroboration of the [appellant’s] claims or other witness evidence, I am not satisfied that the [appellant] has demonstrated on the balance of probabilities that he had entered into work under a contract of service with the respondent.”[34]

   [34] Reasons, [286].

2. The appellant further refers to the Member’s reasons referrable to her consideration of the calculation of the appellant’s pre-injury average weekly earnings, where the Member reasoned:

   “The [appellant’s] evidence is unsupported by any documentary evidence whatsoever. There is no evidence that income received from the respondent was declared in his 2019/20 tax return. No bank account statements, envelopes, or other evidence, attesting to the [appellant’s] income during the period of his employment with the respondent has been provided.”[35]

   [35] Reasons, [333].

3. The appellant says that the Member referred to the respondent’s documentary evidence and indicated that she accepted that evidence. The appellant cites a passage from Chanaa v Zarour[36] in which Campbell JA said that in civil proceedings, the decision-maker is required to consider the whole of the evidence and decide what evidence he or she accepts but the decision-maker is not required to accept the whole of the evidence of a witness. The appellant submits that, in the passages reproduced above, the Member erred in law by applying a more onerous standard of proof than that of the civil standard. The appellant contends that the Member did not make a determination on the basis of the whole of the evidence as to whether she accepted or rejected the appellant’s contentions but instead determined the matter on the basis of a lack of corroboration, which was a higher standard of proof than the civil standard. The appellant submits that the issues were only required to be determined on the civil standard, that is, on the balance of probabilities.

   [36] [2011] NSWCA 199 (Chanaa), [86].

4. The appellant adds that, by looking for documentary evidence and requiring corroboration, the Member failed to properly consider the appellant’s evidence and rejected the appellant’s evidence on the basis of the absence of corroboration, instead of on its merits in the context of the whole evidence.

The respondent’s submissions

1. The respondent submits that, on a proper reading of the Member’s reasons, she did not require corroboration of the appellant’s evidence as to his pre-injury average weekly earnings in order to accept that evidence. The respondent refers to the Member’s observation that the appellant’s evidence was problematic, inconsistent and unsupported by corroborative evidence. The respondent submits that those observations disclose that the lack of corroboration was not the only basis upon which she reached her conclusion as to the appellant’s pre-injury average weekly earnings.

2. The respondent contends that the Member’s reasons do not demonstrate that she applied a balance of proof other than the balance of probabilities and the ground of appeal should be rejected.

The appellant’s submissions in reply

1. The appellant did not lodge submissions in reply in this ground of appeal.

Ground Five

The appellant’s submissions

1. The appellant submits that the Member erred by:

   (a)     ignoring material facts, namely:

   (i)his evidence that he did not prepare the tax invoices;

   (ii)his evidence that the handwriting on the tax invoices was not his;

   (iii)his evidence that he could not read or write in English, and

   (iv)Mr Doali’s evidence about the ABN, particularly that the ATO database search was not dependent upon the declaration or non-declaration of income;

   (b)    determining that the English spelling of Arabic names differed based on the location;

   (c)    demonstrably misunderstanding Mr Doali’s evidence, and

   (d)    failing to consider the appellant’s statement evidence, demonstrated by the manner in which the Member dealt with that evidence at [283] and [284] of her reasons.

2. The appellant asserts that, had those errors not occurred, and the correct standard of proof was applied, the outcome would have been different.

The respondent’s submissions

1. The respondent submits that this ground of appeal does not point to any further or different error than the asserted errors in the preceding grounds of appeal, and for the reasons already submitted, the grounds of appeal should be rejected.

The appellant’s submissions in reply

1. The appellant did not lodge submissions in reply in respect of this ground of appeal.

THE RELIEF SOUGHT

1. The appellant submits that the effects of the errors, either individually or as a whole, are of substance and have affected the Member’s decision. The appellant seeks to have the Member’s Certificate of Determination revoked, and the matter remitted to a different Member for re-determination.

2. The respondent seeks to have the appeal dismissed.

CONSIDERATION

Ground One: Error of fact in determining that the tax invoices and ABN xx xxx xxx 641 belonged to the appellant

1. The Member recorded in her reasons that the appellant disputed that the tax invoices and the ABN were his on the basis that the handwriting was not his own, the invoices were not in his name and the ABN appearing on the invoice was not his.

2. The Member discussed the evidentiary value of Mr Doali’s evidence about the ABN. The Member observed that:

   (a)    the ABN quoted in the tax invoices was registered in the same first and last names as the appellant and bore the same postcode as that recorded on the appellant’s driver’s licence;

   (b)    the search of the ABN undertaken by Mr Doali appeared to be limited in its response, that is, that the Australian Taxation Office did not hold records relating to income associated with the appellant’s name and date of birth;

   (c)    in the context of the appellant being paid in cash for the work with the respondent and that it did not appear that the appellant declared that income in his taxation return for the financial year ending 30 June 2020, the evidence about the ABN was of uncertain value, and

   (d)    as a consequence, she was not satisfied that the ABN recorded on the tax invoice did not belong to the appellant.

3. The document produced by the Australian Government Business Register headed “ABN Lookup” annexed to the ARD and bearing the business number of ABN xx xxx xxx 641 simply records that the entity name of the business was “Al Hadidi, Ahmed”, it had been registered on 28 April 2017 and was current, it was not registered for GST reporting and the main business location postcode was “NSW 2161”.[37]

   [37] ARD, pp 124–125.

4. The further document annexed to Mr Doali’s letter dated 9 December 2021 is not a complete document. There are limited details recorded in the extract. Only the ABN xx xxx xxx 641 and a date of birth consistent with that of the appellant are recorded and there are no details of what individual name or other information was entered in the enquiry. It did not indicate a tax file number.

5. The accounting records annexed to Mr Doali’s letter dated 24 March 2022 are of no assistance in relation to assessing the veracity of the tax invoices or ascertaining the appellant’s pre-injury average weekly earnings.

6. The Notice of Assessment issued by the Australian Taxation Office for the financial year ending 30 June 2020 indicates that the appellant’s taxable income was $21,730. The “Pre-filling” report for the same year referred only to income received from AZZ Form Pty Ltd ($6,062, plus allowances of $902) and the receipt of special benefits from the Australian Government totalling $15,636 commencing on 7 August 2019. It did not include the income the appellant received from the respondent. The fact that the Australian Taxation Office issued a Notice of Assessment for the financial year ending 30 June 2020 indicates that a return was lodged for that financial year. There was no such document produced by the appellant in these proceedings and no explanation was provided by the appellant as to why that was the case, when his claim was dependent upon evidence of his earnings with the respondent. The failure by the appellant to rely on that critical document at best indicates that the document does not assist in relation to whether ABN xx xxx xxx 641 belonged to the appellant or the veracity of the tax invoices. As the Member suggested, the documents produced appear to indicate that the appellant may not have disclosed his earnings with the respondent in his taxation return, which, on the appellant’s case was said to be in the order of $9,000. The Notice of Assessment issued by the Australian Taxation Office for the financial years ending 30 June 2020 is of no assistance in relation to ascertaining the appellant’s earnings with the respondent.

1. The appellant conceded that at times his name was shortened to Ahmed Al Hadidi.

2. Mr Doali’s assertion in his letter dated 9 December 2021 that the appellant’s accounting records do not match with ABN xx xxx xxx 641 and the search record was proof that ABN xx xxx xxx 641 did not belong to the appellant is not borne out. On the totality of the evidence relied upon in relation to whether the ABN belonged to the appellant, it was open to the Member to conclude that she was not satisfied that the ABN did not relate to the appellant.

3. In response to the appellant’s assertion that the name on the tax invoices was not his, the Member observed that the evidence in this matter showed that the English spelling of Arabic names was frequently recorded differently.

4. The respondent asserted that the appellant submitted tax invoices to him each Tuesday and the appellant was paid according to those invoices each Thursday. The appellant asserted that the tax invoices were not his. Apart from the reference to the ABN, which has been dealt with above, the appellant claimed that the invoices were not his because his name was spelt incorrectly, and he did not speak or write English. It is important to note that the respondent did not give evidence as to the author of the invoices submitted and the Member did not attribute the authorship of the invoices to the appellant. The Member was not persuaded by the appellant’s evidence that the invoices (among other documents provided by the respondent) were “unreliable.”

5. Given that the invoices were concisely written in clear English, it could be inferred that they were prepared by someone other than the appellant. That does not mean, however, that the invoices were “unreliable.” There are other possible explanations for how the documents came into being. However, how the tax invoices actually came into being was not canvassed in the submissions of the parties or in queries raised by the Member. It remains that the only documentary evidence of the appellant’s earnings in the employ of the respondent was the evidence produced by the respondent.

6. The appellant’s assertion that the time sheet was also fraudulent was entirely based upon the appellant’s allegation that the tax invoices were fraudulent. The appellant put no other argument forward as to why the time sheet should not be accepted, other than his recollection of the hours and days that he worked, which recollection was inconsistent with his earlier admission that there were days when he did not work because he was ill.

7. As the Member observed, the appellant’s evidence was “problematic or inconsistent, and [was] unsupported by any corroborative evidence.”[38] In that context, the limited documentary evidence adduced by the respondent was the only other evidence available to the Member upon which she could make any determination as to the appellant’s pre-injury average weekly earnings.

   [38] Reasons, [340].

8. The appellant submits that the Member “overlooked” the appellant’s evidence that he denied the tax invoices were submitted by him and “overlooked” the appellant’s evidence that the appellant lacked skills in English. The Member clearly took into account those matters and engaged with the appellant’s submissions, but determined otherwise.

9. There was no error in the Member’s approach and in her conclusions reached. Ground One of the appeal fails.

Ground Two: Error of law by failing to respond to substantial, clearly articulated arguments

1. The appellant submits that, while the Member “addressed” the submissions from the appellant that the name on the tax invoices was not his and he was not literate in English, she did not explain why she accepted the evidence of the tax invoices and that the ABN was his. The appellant asserts that, had the Member taken those submissions into account, she “ought” to have arrived at a different conclusion. The appellant says that the Member would not have excused the misspelling of his name for the reasons she gave in her decision at [279] if the tax invoices were his.

2. The Member did not “overlook” the appellant’s evidence that he did not read or write English. The Member noted the appellant’s assertions but expressed dissatisfaction with the appellant’s evidence because it was internally inconsistent, problematic and unsupported by any documentary evidence. As the Member concluded, the complaint that the ABN did not relate to the appellant was not made out and her reasoning about the name on the tax invoice was that there could be an explanation in relation to misspelling of the appellant’s first name on those documents. The Member clearly dealt with the appellant’s submissions.

3. The appellant submits that he made submissions to the Member that the information on the time sheet should also not be accepted because of the issues with the respondent’s evidence as a whole. That is, the issues with the tax invoices and the allegedly unrelated ABN. The probative value of the evidence relating to those matters is dealt with above and, for those reasons, the appellant’s reliance on those submissions is misplaced.

4. The appellant adds that he submitted to the Member that the appellant and Mr Doali were not cross-examined, there was an inconsistency in the evidence about whether Mr Sobeih attended the doctor with the appellant, and the respondent failed to call evidence to explain the inconsistencies.

5. The evidence provided by Mr Doali was, on the face of it, unsatisfactory. The documents attached to Mr Doali’s letters (that is, both the ABN searches and the taxation documents) did not support Mr Doali’s assertion that they were proof that ABN xx xxx xxx 641 did not belong to the appellant. It was therefore not necessary to test the evidence of Mr Doali by cross-examination in order for the Member to reject it.

6. It appears that the respondent did not make an application to cross-examine the appellant. Nor did the appellant seek to cross-examine the respondent about the purported inconsistencies in its case. In this case, where there was a direct conflict between the appellant and the respondent in relation to the calculation of the appellant’s pre-injury average weekly earnings and little documentary evidence to assist the Member, the Member may well have benefitted from the oral testimony of the parties. However, the Member was not bound to accept evidence unchallenged by cross-examination.[39] The fact that evidence was untested does not mean the tribunal of fact is obliged to accept it. It may be rejected if it is inconsistent with other evidence which the tribunal accepts.[40]

   [39] Insurance Australia Limited t/as NRMA Insurance v John Checchia [2011] NSWCA 101, [139]; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234, [105].

   [40] Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 per McColl JA, [34].

7. The Member referred to the inconsistency between Mr Sobeih’s evidence that he did not attend the general practitioner with the appellant and an entry in the clinical notes that recorded “attendd [sic] with Ahmad his supervisor”.[41] The Member reasoned that:

   “Whilst the clinical records do tend to suggest that the [appellant’s] evidence on this issue is preferable, I am not satisfied that the inconsistency renders the entirety of Mr Sobeih’s evidence unreliable.”[42]

   [41] Entry in clinical notes of Dr Talab dated 11 September 2019, ARD, p 226.

   [42] Reasons, [282].

8. It was open to the Member to accept Mr Sobeih’s evidence despite that inconsistency. The decision-maker is not required to accept the whole of the evidence of any one witness.[43]

   [43] Chanaa, [86].

9. The appellant asserts that the Member accepted the respondent’s time sheet over the appellant’s evidence of the hours he worked without addressing his submissions that the time sheet was fraudulent. In his statement dated 17 December 2021, the appellant said that he was paid in accordance with a time sheet, which he signed at the beginning and end of each day’s work. He conceded that he sometimes missed work due to illness. The time sheet was not inconsistent with that evidence from the appellant.

10. In his subsequent statement dated 24 March 2022, the appellant disputed the accuracy of the respondent’s time sheet and precisely recorded his recollection of the times that he worked. The Member’s task was to assess the evidence of both parties, which consisted of a document from the respondent and the appellant’s later recollection. She preferred the documentary evidence. In considering the appellant’s assertions of the hours that he worked, the Member reasoned that it was unusual that the appellant could recall with such precision the times and days that he worked on particular days in the past. It cannot be said that the Member accepted the respondent’s time sheet without addressing the appellant’s submissions. There are other reasons why the Member was entitled to prefer the documented time sheet over the appellant’s recollection. In his first statement, the appellant conceded that there were days when he did not work for the respondent because he was ill and he gave evidence that the respondent did not pay him leave entitlements, including sick pay. The appellant’s recollection of the days and hours that he worked for the respondent did not account for those missed days. The appellant’s assertions made in his statement dated 24 March 2022 are inconsistent with his earlier evidence and the respondent’s time sheet, which indicated that there were days when the appellant did not work. For that reason alone, it was open for the Member to prefer the evidence recorded in the respondent’s time sheet.

11. The appellant’s assertion that the Member failed to address his submissions about the time sheet is not made out and there was no error on the part of the Member in preferring the respondent’s time sheet over the appellant’s later recollection of the hours and days that he worked. It follows that this ground of appeal fails.

Ground Three: Error of law by making findings and determinations without putting the appellant on notice that she intended to do so

1. The appellant asserts that the Member denied him procedural fairness by making adverse findings about his evidence in relation to his pre-injury average weekly earnings and accepting the respondent’s evidence. The appellant asserts that the Member dealt with his evidence in a manner that was not the subject of submissions and thus the appellant was not put on notice that she intended to make those findings.

2. The appellant says that the respondent did not challenge his evidence in the manner adopted by the Member. The appellant says that had he been on notice that the Member would reach the conclusions that she did, he would have lodged submissions about his recollection, and he would have submitted that he only gave evidence about the matters that were within his knowledge.

3. In written submissions to the Member, the respondent referred to the appellant’s evidence about his earnings as a “bare assertion”.[44] The respondent pointed to the appellant’s “belief” that the respondent’s documents were fraudulent and the appellant’s “recollection” of the hours that he worked. The respondent submitted that it was open to the Member to draw an inference adverse to the appellant and accept the respondent’s documentary evidence in circumstances where the appellant’s evidence was uncertain. The respondent pointed out numerous inconsistencies in the appellant’s evidence and submitted that the Member “would simply not accept the [appellant] as a truthful witness”.[45] The respondent submitted that there was an absence of corroborative evidence about the hours that the appellant worked, and an absence of evidence of either bank transactions or payment of expenses which might indicate what the appellant did with the money he earned.

   [44] Respondent’s submissions to the Member, [71].

   [45] Respondent’s submissions to the Member, [23].

4. The respondent raised a clear challenge to the reliability of the appellant’s evidence and pointed to the inconsistencies in that evidence. The appellant had the opportunity to respond to the respondent’s submissions and lodged submissions in reply to those submissions.[46] It was inherent in the issues for determination that the Member consider the reliability of the appellant’s evidence in the light of the respondent’s clear challenge to that evidence. As Redlich JA observed in Ucar:

   “The risk of an adverse finding will usually be present whenever there is a serious challenge to the credibility of a party or witness. Generally speaking, it will be unnecessary for the trial judge to advert to the possibility of such a finding because the risk will be apparent.”[47]

   [46] Appellant’s submissions in reply dated 6 May 2022.

   [47] Ucar, [43].

5. A tribunal member is not required to give a “running commentary upon what it thinks about the evidence”[48] and it does not have to disclose what it is minded to decide.[49]

   [48] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, [48].

   [49] F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295.

6. The appellant cannot say that the Member’s findings about the reliability of the appellant’s evidence were not the subject of submissions made, perhaps apart from the Member’s observation that, in the evidence, on occasion the spelling of Arabic names differed. The ultimate findings made by the Member resulted from an analysis of the submissions made and an assessment of the available evidence.

7. The appellant indicated that if he had been warned of the adverse finding, he would have lodged submissions about his recollection, and that he only gave evidence about the matters that were within his knowledge. It is difficult to see how such submissions might have persuaded the Member that his evidence was reliable.

8. The appellant’s assertion that the Member determined the matter on a basis that was not the subject of submissions and that he was denied the opportunity to make submissions addressing the issues canvassed by the Member is not made out. The appellant has not established error on the part of the Member in the manner alleged and the ground fails.

Ground Four: Error of law by requiring the appellant to corroborate his evidence in order to succeed

1. The appellant refers to the Member’s reasoning that there was no corroborative evidence to support the appellant’s statement evidence and submits that the Member erred in law by applying a higher standard of proof than the civil standard. The appellant relies upon a passage from Chanaa, in which Campbell JA (with whom Bathurst CJ and Tobias AJA agreed) observed:

   “However, in the civil law corroboration is not a technical term, or a legal requirement … Rather, the task of the judge is to decide, on the basis of the whole evidence (denials and all), what he or she accepts. In doing that, there is no requirement for the judge to accept the whole of the evidence of any one witness.”[50]

   [50] Chanaa, [86].

2. The appellant asserts that the Member did not determine whether she accepted or rejected the appellant’s contentions on the basis of the whole of the evidence but made her determination on the basis of corroboration.

3. In Woolworths Ltd v Warfe,[51] Kaye AJA (with Tate and Whelan JJA agreeing) said:

   “Notwithstanding the absence of corroborative witnesses who the party might be expected to call, the tribunal of fact is free, nevertheless, to accept the evidence of the particular party as credible. That proposition is trite law.”[52]

   [51] [2013] VSCA 22 (Warfe).

   [52] Warfe, [151].

4. Chanaa and Warfe were considered in the context of the former Workers Compensation Commission by Roche DP in Bi-Lo Pty Ltd v Brown.[53] Roche DP said that in civil proceedings:

   “it is not the law that a worker must have corroboration before he or she can succeed”,[54]

   and:

   “It is trite law that, even without corroborating witnesses, a tribunal of fact is free to accept the evidence of a claimant as credible.”[55]

   [53] [2013] NSWWCCPD 66 (Brown).

   [54] Brown, [75].

   [55] Brown, [76].

5. However, given the inconsistencies in the appellant’s evidence noted by the Member, it was open to the Member to find his evidence unreliable and look to other evidence to assist her in her determination of the appellant appellant’s pre-injury average weekly earnings.[56]

   [56] Devries v Australian National Railways Commission [1993] HCA 78.

6. The Member did not apply a higher standard of proof than that of the balance of probabilities. Her task was to consider the evidence and weigh up that evidence in an objective manner, which she did. She accepted the respondent’s submissions that the evidence provided by the appellant was inconsistent and looked to the only other material before her that went to the calculation of the appellant’s pre-injury average weekly earnings.

7. The Member’s approach discloses no error. This ground of appeal is not made out and fails.

Ground Five: Error of fact by determining the appellant’s pre-injury average weekly earnings figure to be $625 per week

1. The appellant asserts that the Member erred in fact by ignoring material facts, demonstrably misunderstanding Mr Doali’s evidence and failing to consider the appellant’s statement evidence. The appellant submits that, had those errors not occurred, and the correct standard of proof was applied, the outcome would have been different.

2. As discussed in Ground Four of the appeal, the Member did not apply a higher standard of proof than determining the matter on the balance of probabilities. The appeal ground otherwise asserts errors of fact in the decision-making process.

3. In order to disturb a Member’s factual decision, the appellant must show the kind of error consistent with the principles distilled from relevant authorities by Roche DP in Raulston v Toll Pty Ltd.[57] That is, that:

   “…

   (a)     [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.

   (b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.

   (c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.

The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):

‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”[58]

[57] [2011] NSWWCCPD 25 (Raulston).

[58] Raulston, [19]–[20].

1. Thus, in order to disturb the Member’s factual determination in respect of the calculation of the appellant’s pre-injury average weekly earnings, which is the only determination disputed in this appeal, the appellant must establish that the Member:

   (a)     ignored material facts;

   (b)     made a critical finding of fact which has no basis in the evidence;

   (c)     showed a demonstrable misunderstanding of relevant evidence, or

   (d)     demonstrably failed to consider relevant evidence.

The tax invoices and the ABN

1. The appellant asserts that the Member ignored his evidence that he did not prepare the tax invoices.

2. The Member provided the following reasons in respect of the submissions and evidence about the tax invoices and the ABN:

   “With regard to the ABN number featured on the tax invoices, an ABN Look Up search relied on by the respondent indicates that the ABN matches a person with the same first and last names and postcode as the [appellant] according to his driver’s licence.

   In denying that the ABN belonged to him, the [appellant] relied on a screenshot of a partially visible search of ATO database by a tax agent in which it is suggested that the [appellant’s] date of birth and the ABN did not match. The evidentiary value of that search is uncertain insofar as it appears to only suggest that the ATO did not hold records such as income reports or declarations containing both the ABN and the [appellant’s] date of birth. Given the evidence indicating that the [appellant] had been paid by the respondent in cash and does not appear to have declared that income in his 2019/20 tax return, I am not satisfied that this is persuasive evidence that the ABN number appearing on the tax invoices did not belong to the [appellant].”[59]

   [59] Reasons, [280]–[281].

3. The above passages show that it cannot be said that the Member ignored the evidence about the tax invoices or the ABN. She clearly gave regard to and dealt with that evidence.

Mr Doali’s evidence

1. The appellant submits that the Member ignored Mr Doali’s evidence, particularly that the database search of the ABN was not dependent upon a declaration or non-declaration of income.

2. The Member provided a fair summary of the evidence provided by Mr Doali from [62] to [66] of her reasons. The summary included reference to the ABN that the appellant admitted was his, that it had been cancelled, and the Australian Taxation Office’s records showed that no income reports or declarations were recorded. The Member’s reasoning in respect of the evidence produced by Mr Doali is reproduced at [149] above. I have discussed Mr Doali’s evidence above at [104]–[110] under Ground One of the appeal and I concluded that Mr Doali’s statement that the appellant’s accounting records do not match ABN xx xxx xxx 641 and the search record was proof that ABN xx xxx xxx 641 did not belong to the appellant is not made out. The assertion that the Member ignored Mr Doali’s evidence and associated documents is clearly unfounded. The Member accounted for that evidence and determined that it was of little value. The Member was correct in that regard.

3. The evidence, having little probative value, cannot be considered to be material evidence which, if not accepted, would lead to error on the part of the Member by failing to accept it.

4. The appellant does not assist by providing any plausible explanation of how it is that the Member demonstrably misunderstood Mr Doali’s evidence. Further, the Member’s summary of the evidence provided by Mr Doali discloses that she had an accurate understanding of that evidence.

5. The Member was correct in observing that the English spelling of names was different in different places in the evidence.

6. Lastly, the Member did not ignore the appellant’s evidence that he could not read and write English. She noted that evidence and considered that the lack of English proficiency may explain the misspelling of the appellant’s name on the tax invoices. As I have already pointed out, the Member did not find that the appellant was the author of the tax invoices, she merely determined that she was not persuaded that the tax invoices were not his.

7. The appellant points to [283] to [284] of the Member’s reasons (reproduced at [83] above) and submits that the Member failed to consider the appellant’s lay evidence. The appellant does not identify what evidence he is referring to that the Member failed to consider. In those circumstances, this submission cannot be accepted.

8. It follows that the Member did not ignore material facts, did not misunderstand the evidence and did not fail to consider the appellant’s lay evidence. Ground Five of the appeal fails.

CONCLUSION

1. None of the grounds of appeal are successful and the appellant has failed to show error on the part of the Member. The Member’s determination is confirmed.

DECISION

1. The Member’s Certificate of Determination dated 28 June 2022 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

26 July 2023