AVS Security Pty Limited v Workers Compensation Nominal Insurer (icare) - [2021] NSWPICPD 42

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	AVS Security Pty Limited v Workers Compensation Nominal Insurer (icare) [2021] NSWPICPD 42
APPELLANT:	AVS Security Pty Limited
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Abdallah El Hassan
THIRD RESPONDENT:	E Hospitality Services Pty Limited (Under Administration) (formerly known as AVS Corporate Australia Pty Limited)
APPELLANT’S INSURER:	Uninsured
THIRD RESPONDENT’S INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-5665/20
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	18 November 2021
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 15 March 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 145 of the Workers Compensation Act 1987 – section 43 of the Personal Injury Commission Act 2020 – whether appellant is the corporate entity who employed the worker – reliance on company searches as evidence as to the trading name of the employer
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Nasr, solicitor
Jeresyn Legal
First Respondent:
Mr L Robison, counsel
Hall and Wilcox
Second Respondent:
Ms E Grotte, counsel
AJB Stevens Lawyers
Third Respondent:
Mr S Grant, counsel
Hicksons Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF MEMBER’S DECISION:	15 March 2021

INTRODUCTION AND BACKGROUND

On the night of 29/30 August 2017, Mr Abdallah El Hassan (the second respondent), whilst working as a security guard at the Royal Oak Hotel Parramatta (the Hotel), was assaulted by two patrons of the Hotel.
Mr El Hassan made a claim for compensation which was met by the first respondent, the Workers Compensation Nominal Insurer (icare), pursuant to Div 6 of Pt 4 of the Workers Compensation Act1987 (the 1987 Act).
On 15 September 2020, the first respondent served on the appellant, AVS Security Pty Limited, a Notice pursuant to s 145(1) of the 1987 Act seeking reimbursement of an amount of $492,668.35, being payments made to, for and on behalf of Mr El Hassan.
The Notice was accompanied by a Certificate pursuant to s 145(5) of the 1987 Act and a note directing attention to ss 145(1), (3) and (6) of that Act.
The third respondent now known as E Hospitality Services Pty Limited (Under Administration), formerly known as AVS Corporate Australia Pty Limited, was joined to the proceedings as a putative employer of Mr El Hassan having issued a Tax Invoice dated 4 September 2017 claiming payment for Mr El Hassan’s services to the Hotel.
Pursuant to s 145(3) of the 1987 Act, AVS Security Pty Limited applied to the then Workers Compensation Commission, by way of Miscellaneous Application, for a determination as to its liability in respect of the payment for which reimbursement was claimed.
The orders sought by AVS Security Pty Limited were:
(a) that the injured worker was not employed by the appellant at the relevant time or at all, and
(b) that the appellant is not liable for the amount in the Notice or at all.
In support of the orders the appellant submitted:
(a)    the appellant does not have any employees in New South Wales;
(b)    the appellant does not trade or operate any business in New South Wales and has never done so. Page 15 of the supporting documents to the Miscellaneous Application is a copy of the ABN Lookup for the appellant which shows that the appellant is not registered for GST;
(c)    the appellant does not employ the injured worker;
(d)    the appellant does not know the injured worker;
(e)    the appellant was not responsible for the injured worker at the relevant time or at all;
(f)    at page 16 of the supporting documents to the Miscellaneous Application is a copy of the invoice issued by the correct employer at the relevant time to the venue that the injured worker was working at on the relevant date. The invoice was issued by AVS Corporate Australia Pty Limited. AVS Corporate Australia Pty Limited is not related to the appellant;
(g)    at page 17 of the supporting documents to the Miscellaneous Application is a copy of the Master Licence for AVS Corporate Australia Pty Limited issued by NSW Police, and
(h)    the appellant does not hold a NSW Security Master Licence and has never held a NSW Security Master Licence to allow it to trade in New South Wales or provide the services the injured worker was employed to supply.
The Member defined the issue for determination in the following terms:
“The parties agree that the issue in dispute was whether or not Mr El Hassan was a worker employed by AVS Security at the time he sustained injury.”[1]
[1] AVS Security Pty Ltd v Workers Compensation Nominal Insurer (icare) [2021] NSWPIC 21 (the reasons), [4].
The matter came on for hearing before the then Arbitrator (as she then was) on 18 February 2021. On 1 March 2021, before the Arbitrator issued her Certificate of Determination, the Workers Compensation Commission was abolished by operation of Clause 3 of Div 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became a matter within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date,[2] and the Arbitrator became a non-presidential Member of the Personal Injury Commission. In her capacity as a Member of the Commission, the Member refused the appellant’s application.
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

CERTIFICATE OF DETERMINATION

On 15 March 2021, the Member issued a Certificate of Determination as follows:
“The Commission determines:
1. The [appellant’s] claim for an order that the second respondent (being the injured worker, Abdallah El Hassan) was not employed by the [appellant] at the relevant time or at all is refused.
2. The [appellant’s] claim for an order that it is not liable to reimburse the first respondent (being the Workers Compensation Nominal Insurer (icare)) the sum of $492,668.35 being the sum specified in the Notice to Reimburse issued under s 145(1) of the Workers Compensation Act 1987 dated 15 September 2020 by the first respondent is refused.”
In the appeal the appellant seeks the following orders:
(a) that the determination of 15 March 2021 be set aside, and
(b) in its place the following order to be made:
(i)that the second respondent (being the injured worker Abdallah El Hassan) was not employed by the appellant at the relevant time or at all, and
(ii)that the appellant is not liable for the amount in the Notice to Reimburse dated 15 September 2020 or at all.

ON THE PAPERS

Section 52(3) of the 2020 Act 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.”
I have had regard to the procedural directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these 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

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to s 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The decision is not interlocutory because it is a final determination of the appellant’s rights under s 145 of the 1987 Act.

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

I exercise the jurisdiction provided in subs 352(5) of the 1998 Act which provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

THE MEMBER’S STATEMENT OF REASONS

The Member identified the evidentiary material in paragraph [6] of the reasons. She observed that the parties did not seek leave to adduce oral evidence or cross-examine any witness.
The central controversy in the matter was whether the appellant “AVS Security Pty Limited” was appropriately identified by Mr El Hassan and others by the abbreviated description “AVS Security”. For the reasons she gave the Member resolved this issue in the affirmative.
The Member recorded that Mr El Hassan said that he had sought employment in the security industry in late July/early August 2017, that he “randomly” contacted AVS Security and was placed in contact with the Operations Manager, Mr Tannous. After a successful interview with Mr Tannous at the office in Granville, Mr El Hassan read and signed the Company Policy and completed a tax file number declaration. Mr El Hassan was told by Mr Tannous he would be required to sign further documentation on the return of a staff member and he would be placed on the payroll system. In the interim, Mr El Hassan would be paid in cash. Mr El Hassan said someone from AVS Security subsequently attended the Hotel and Mr El Hassan completed a superannuation form for that purpose. Mr El Hassan said he was not provided with a uniform but was told by Mr Tannous to wear black trousers and a shirt while working.[3]
[3] Reasons, [22].
Mr El Hassan said that he was required to sign into the visitors’ book on arrival each night at the Hotel and report to Ms Ioana. Mr El Hassan was paid cash wages and following his first week at work he attended the office in Granville to collect his wages. He again attended the office in Granville to collect his wages for the following week.[4]
[4] Reasons, [23]–[24].
The Member accepted the evidence of Mr El Hassan, which was not contradicted by any other evidence before the Commission, and, in particular, she accepted that “Mr El Hassan has provided a credible history regarding his recruitment and engagement at the hotel as a security guard.”[5]
[5] Reasons, [79].
Ms Diana Mohandes-Barg, a bar attendant at the Hotel, provided a statement. She said that the security guards employed at the Hotel each night of the week during the 11 month period she was employed there were provided by AVS Security. She knew Mr Tannous to be one of the main contacts at AVS Security.
Ms Mohandes-Barg said the security guard arrangements were generally made by Rebecca Walsh (Ms Walsh) the daughter of the owner of the Hotel. The guards usually wore an AVS supplied shirt with insignia.[6]
[6] Reasons, [29].
The Member noted that the investigators had difficulty speaking with the people who operated the Hotel. The Hotel had been demolished and Mr R Walsh, the operator at the time Mr El Hassan was assaulted, had died. The late Mr Walsh’s daughter and son, Ms Walsh, and Mr Kane, were unable to provide any written contract between AVS Security and the Hotel. Ms Walsh told the investigator that security guards at another hotel being managed by her and Mr Kane were provided through a “derivative” of AVS Security.[7]
[7] Reasons, [31].
The appellant’s solicitor, Mr Nasr, provided some information to the investigator appointed by the first respondent and this is recorded at paragraphs [34] to [37] of the reasons. Mr Nasr said that he was under instructions from Mr Michael, a director of the appellant. His instructions were that Mr El Hassan had never been employed by AVS Security. AVS Security did not provide security services and had no knowledge of the incident or alleged injuries. Mr Nasr subsequently said that Mr Tannous was not and had never been employed by “AVS Services Pty Ltd” [sic].
There is no statement from Mr Michael to prove the matters asserted by Mr Nasr on instructions, and as I read the material, Mr Nasr was not giving this information from his own knowledge.
A Tax Invoice dated 4 September 2017 on the letterhead of “AVS Corporate Australia Pty Ltd” addressed to “Robbie Walsh Royal Oak Parramatta” with respect to security services provided for the period “Monday, 28/08/2017 to Sunday, 03/09/2017” was tendered in the appellant’s case before the Member.[8]
[8] Miscellaneous Application, p 16.
That invoice claimed payment for the services of Mr El Hassan for Monday 28 and Tuesday 29 August 2017. For the remainder of the period, 30 August 2017 to 2 September 2017, another person, a Mr Khan, was noted as having provided the services. The payment options included direct deposit to a bank account maintained with the National Australia Bank.
The Member attached significance to the fact that the Tax Invoice on the letterhead of AVS Corporate Australia Pty Ltd was produced by the appellant. She said of this invoice the following:
“While there is before the Commission an invoice issued to the hotel on 4 September 2017 by an entity other than AVS Security that is relevant to Mr El Hassan’s engagement at the hotel on 28 and 29 August 2017 I am curious as to how this invoice came into the possession of AVS Security (particularly in circumstances where it is submitted by Mr Nasr that there is no connection between AVS Security and AVS Corporate Australia and it is also submitted by Mr Nasr that AVS Security would not [have] been able to obtain relevant information from the hotel), I am curious [as] to the fact this invoice was issued on the same day Mr El Hassan scanned through his first WorkCover Certificate of Capacity to AVS Security, and I am also curious [as] to the fact there are no other invoices before the Commission relevant to Mr El Hassan’s engagement at the hotel. No explanation to satisfy such curiosity has been provided by AVS Security and in the absence of any acceptable explanation by AVS Security to satisfy such curiosity, I am not satisfied the invoice (which Mr Nasr accepted was the only evidence before the Commission on which AVS Security relied in establishing there was another relevant entity) establishes to the required standard of proof that AVS Security did not employ Mr El Hassan at the time he sustained injury as a result of an assault occurring at the hotel during the night of 29/30 August 2017.”[9]
[9] Reasons, [85].
Corporate search records relevant to AVS Security Pty Limited, AVS Services Australia Pty Limited and E Hospitality Services Pty Limited (the subsequent name for “AVS Corporate Australia Pty Limited”) were before the Member. The documents were not certified copies of entries in the public records. They were reports produced by Equifax.
The appellant attached to its application an “ABN Lookup” record for AVS Security Pty Limited which recorded the trading name of AVS Security Pty Limited as “AVS Security”.
The Member regarded it as noteworthy that the initial WorkCover Certificate of Capacity which Mr El Hassan said that he scanned straightaway through to AVS Security was dated 4September 2017, which coincided with the date of the invoice issued by AVS Corporate Australia. It was also significant that there were no other invoices before the Commission.
Mr El Hassan described the CEO of AVS Security as Mr Nassif. Mr Nassif was neither a Director of AVS Security or AVS Corporate Australia at the time, however, he had previously been a Director and Secretary of both. There was an email dated 27 November 2017 asserting that AVS Security had never employed Mr El Hassan, but that email was not before the Commission.
There was no evidentiary statement from Mr Nassif before the Commission.
The Member expressed her findings in the following terms:
“On the evidence before the Commission, with particular reference to the evidentiary statements provided by Mr El Hassan and Ms Mohandes-Barg, but noting there is no evidentiary statement/s to support [the] contention by AVS Security that AVS Security did not employ Mr El Hassan and did not provide security services to the hotel, I am satisfied on the balance of probabilities that Mr El Hassan was employed by AVS Security and engaged at the hotel as a security guard at the time he sustained injury as a result of an assault occurring during the night of 29/30 August 2017.”[10]
[10] Reasons, [84].
In the result the Member declined to make the orders sought by the appellant in the original application.

GROUNDS OF APPEAL

The appellant identifies two grounds of appeal:
“(a) That in observing at [1]: AVS Security Pty Ltd (AVS Security), the [appellant] in these proceedings was registered on 13 May 2010 and traded under the name ‘AVS Security’, the [Member] erred as there was no evidence that the [Member] could be satisfied with that the [appellant] was in fact the entity trading as AVS Security at the relevant time or at all. The statement is suggestive that it was accepted by all parties that the applicant traded as ‘AVS Security’ when in fact the contention of the [appellant] was that it never traded as ‘AVS Security’.
(b) The [Member] further erred at [13] in her statement: A company search for AVS Security as at 15 September 2020 demonstrated that the entity traded as ‘AVS Security’. The [Member] erred in that the document she relied on in making the above statement was not a company search but in fact an Equifax Company file. This is incorrect, and the error made by the [Member] has clearly affected the decision (sec 352(5)).”
Each of the parties made submissions in response to the two grounds of appeal.

GROUND ONE

Appellant’s submissions in support of Ground One

The appellant submits that it disputed that it traded as AVS Security and that the Member was aware of its position in this regard because she set out the submission of the appellant at [46] of the reasons.
It says, “[i]t was incumbent on the [Member] to decide this point and not assume that the [appellant] was the entity that traded as ‘AVS Security’.” The appellant submits that the Member “has determined the matter on the fact that the [appellant] traded as ‘AVS Security’ was an agreed fact.” “As a result of the above error the [Member] then incorrectly assumed that when the various witnesses to the matter referred to ‘AVS Security’ they were referring to the [appellant].” The documents supplied do not refer to the appellant as “AVS Security Pty Limited”. The Member was required to make a finding that when the witnesses referred to AVS Security they were in fact referring to the appellant.
The appellant submits:
“In proceeding on the above basis the [Member] erred in the same way the Factual investigations reports were defective in assuming that the [appellant] traded as ‘AVS Security’. Had the [Member] properly considered this issue she would have seen from the first respondent’s own evidence that there was in fact another entity (as suggested by the [appellant]) that was providing Security Services at the Hotel and also that this entity also had employees.”
The first respondent was the Workers Compensation Nominal Insurer. The reference said to support the submission, was a reference to an investigation report where the investigator said:
“On 18 October 2019 we received new instructions with regard to gathering further evidence surrounding the contract between AVS Security (in liquidation) and The Royal Oak Hotel at Parramatta.”
And further:
“The Insured subsequently went into liquidation and have reappeared now under various reincarnations, such as AVS Corporate Australia and AVS Services.”
The appellant’s submission in a footnote said that AVS Security Pty Limited has never been in liquidation. There is a further reference to a creditors report in relation to the third respondent that it was a company that traded as a security and labour hire business, that it went into liquidation for unpaid payroll tax in the amount of approximately $2,685,000.

Workers Compensation Nominal Insurer’s submissions in response to Ground One

The Nominal Insurer submits that the appellate jurisdiction exercised is limited to intervention to correct errors of fact, law, or the exercise of discretion.[11]
[11] Section 352(5) of the 1998 Act.
The appellant’s corporate name is “AVS Security Pty Limited”. It submits omitting the corporate suffix denoting the legal structure, the appellant’s name is simply “AVS Security”.
The evidence that the appellant traded as AVS Security includes, amongst other things, the following:
(a)     “That is in fact its name (omitting Corporations Act niceties) and it should hardly have been a matter seriously in issue.”
(b)     The company search referred to by the Member at [13] of the reasons confirmed that the appellant traded in this name.
(c)     The appellant, which at least had the persuasive onus, put on no evidence about whether it traded or not. A Jones v Dunkel[12] inference was raised and not rebutted.
(d)     The other entity, AVS Corporate Australia, disclosed wages of only $8,000, meaning it could not have been the entity trading as AVS Security providing security services to hotels.
(e)     The worker himself, Mr El Hassan, had put on evidence that he worked for AVS Security. That is what he told the police also. It was also in the claim form.
(f)     Ms Mohandes-Barg, who worked for the hotel, confirmed that the security guards were supplied by AVS Security.
(g)     The first respondent repeated its submissions it made below, and those made by the worker and AVS Corporate summarised from paragraph [51] in the reasons onwards.
[12] (1959) 101 CLR 298.
The ultimate submission made by the Nominal Insurer was that:
“The Member was alive to the need to determine this issue. She did not assume [that] it was not in issue (despite the rather extraordinary stance of the appellant that it was indeed in issue in the circumstances).”

Mr El Hassan’s submissions in response to Ground One

Mr El Hassan in his submissions directs attention to Raulston v Toll Pty Limited,[13] emphasising that on an appeal to a Presidential member the appellant must demonstrate that the Member was wrong and in error to engage the jurisdiction to interfere, it is not sufficient that the Presidential member has a preference for a view of the facts contrary to the view reached by the Member whose decision is the subject of the appeal.
[13] [2011] NSWWCCPD 25, [19(c)]–[21].
Mr El Hassan submits:
“9. The Appellant did not place any cogent or probative evidence before the Member in the form of a statement or other documentary evidence to refute the other evidence before the Member that AVS Security Pty Ltd traded as AVS Security, which was the employer of the Second Respondent at the relevant time.
10. As noted by the Member at [82] of the [reasons], there was also no statement from Mr Nassif or Mr Michael confirming the assertions made by Mr Nasr, the Appellant’s legal representative, in his email to the investigator or in oral submissions at the hearing of this matter.”
Mr El Hassan submits finally that the finding was not based on an assumption but on a comprehensive analysis of the evidence and a preference of evidence over assertions based on no evidence.

Submissions of AVS Corporate Australia Pty Limited in response to Ground One

These submissions are encapsulated in the following:
“4. No attempt was made to provide evidence in statement form or otherwise to support the allegation that AVS Corporate Australia Pty Ltd was the correct employer which it could have done quite simply, if in fact this was the case, by producing the records of the AVS Corporate Australia Pty Ltd to establish that it paid the 2nd Respondent, that the documents that the 2nd Respondent signed when he was employed were those of AVS Corporate Australia Pty Ltd or that John Tannous who the 2nd Respondent said employed and directed him was himself an employee of AVS Corporate Australia Pty Ltd and not the Appellant.
…
6. The thrust of this Ground is that ‘there was no evidence that the [Member] could be satisfied with that the [appellant] was in fact the entity trading as AVS Security’. In the limited amount of evidence tendered by the Appellant itself at the hearing is a[n] Australian Government document entitled ABN Lookup (Application page 15) in which information relating to the Appellant appears including that its trading name was AVS Security, the very fact that the Appellant now wishes to refute.”

Consideration

The premise underlying Ground One of the appeal is that the evidence did not establish that the reference by Mr El Hassan and Ms Mohandes-Barg to “AVS Security” as Mr El Hassan’s employer, was a reference to the appellant “AVS Security Pty Limited”. That is, the Member in fact “assumed” rather than made a finding that when the witnesses referred to AVS Security it was a reference to the appellant.
For the reasons that follow, in my view, when the Statement of Reasons is read as a whole[14] it is plain that the Member inferred from the material that it was the appellant that was identified as the employer by the abbreviated name “AVS Security”.[15]
[14] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
[15] Reasons, [82].
Section 43 of the 2020 Act provides:
“43    Procedure before Commission generally
(1)     Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)     The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)     The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
This is the equivalent of the repealed s 354 under the 1998 Act.
The Commission is required to determine the proceedings according to equity, good conscience, and the substantial merits of the case. It was well established that notwithstanding that it was not bound by the rules of evidence, the predecessor to the Personal Injury Commission was required to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence “based on speculation or unsubstantiated assumption or unqualified opinions is unacceptable.[16] There is every reason to assume that the Personal Injury Commission under s 43 of the 2020 Act is required to conduct its hearings to the same standard as that required of the predecessor, the Workers Compensation Commission.
[16] See South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, [127] referring to Rule 70 of the Workers Compensation Commission Rules 2003; Aluminium Louvres and Ceilings Pty Limited v Zheng [2004] NSWWCCPD 26, [28].
In any event, the Member was plainly conscious of the standard of proof to be applied making express reference at [75]–[76] of the reasons to Nguyen v Cosmopolitan Homes,[17] Briginshaw v Briginshaw[18] and Curtis v Harden Shire Council.[19]
[17] [2008] NSWCA 246, [55].
[18] [1938] HCA 34; 60 CLR 336, 361–362.
[19] [2014] NSWCA 314, [20].
In the application filed on behalf of AVS Security Pty Limited at page 15 Annexure A is the ABN Lookup document. The Annexure forms part of the appellant’s case at first instance. It identifies AVS Security Pty Limited, as having the trading name “AVS Security”.
The appellant’s challenge to the Member’s reliance on the document is inconsistent with the inclusion of the document in the appellant’s case before the Commission. Furthermore, there does not appear to have been any submission made to the Member that she should not rely on the document for what it showed.
In the absence of evidence that the extract from ABN Lookup should not be accepted, there is no error in the Member’s reliance on the contents of the document. ABN Lookup is an Australian Business Register sponsored by the Australian Government. It is a free public service providing information supplied by businesses when they register for an Australian Business Number. Section 43 of the 2020 Act plainly permitted the Member to rely on the information contained in the ABN Lookup. Furthermore, it was part of the appellant’s case before the Member.
The Equifax search dated 15 September 2020 referable to AVS Security Pty Limited records the ABN for that company as “80 143 628 504”, that accords with the ABN recorded in the ABN Lookup. The Equifax document furthermore records the trading name of AVS Security Pty Limited as “AVS Security”.
The latter material is expressly referred to by the Member at [13] of the reasons, albeit she refers to the Equifax report as “a company search”. (I refer to this aspect of the Member’s reasons in relation to the consideration of Ground Two of the appeal.)
If the contents of these documents were to be challenged or contradicted it was up to the appellant to adduce evidence to contradict the inferential findings based on the documents.
Mr Nasr’s instructions came from Mr Michael.[20] Notwithstanding, there was no statement from Mr Michael supporting the assertions made by Mr Nasr on behalf of AVS Security Pty Limited. The Member expressly referred to the absence of evidence from Mr Michael.[21]
[20] See, for example, reasons [82].
[21] Reasons, [82].
The Equifax search dated 12 February 2020 of AVS Corporate Australia Pty Limited identified as previous Directors of that company Mr Michael and Mr Nassif. Mr El Hassan said that after he submitted the claim “David [Nassif] the CEO of AVS Security later sent an email to this lawyer he had searched all the records and could find no trace of me in their system.”[22] The Member noted that there was no statement from Mr Nassif.[23]
[22] Statement of Mr El Hassan, second respondent’s reply, p 13, [42].
[23] Reasons, [82].
The material before the Member did not include a certified copy of public records. The full faith and credit provisions in s 185 of the Evidence Act 1995 (Cth) did not apply.
However, there was no evidence to suggest that the ABN Lookup document or the Equifax search were not accurate or reliable. The Member was entitled to rely upon that information in the material to form the conclusion that she did.[24] Section 43 of the 2020 Act permitted the Member to act on the material in the absence of a proper evidentiary basis contradicting what the material clearly established on its face.
[24] Section 43 of the 2020 Act.
The appellant’s submission seems to be in the end that the Member was not entitled to infer from the material that the description of the employer as “AVS Security” was a reference to the appellant. In my view that is what the Member did. She did not “assume” or proceed as if the ultimate conclusion were an “agreed fact”. Rather for the reasons previously discussed she inferred that the employer was the appellant from the evidence, in particular the evidence that the appellant had caused to be recorded in publicly available documents its trading name “AVS Security”.
In the absence of evidence to the contrary, the Member was entitled to infer further that it was the appellant that was being identified by Mr El Hassan and Ms Mohandes-Barg by the expression “AVS Security”.
Ground One of the appeal is not made out.

GROUND TWO

Appellant’s submissions in support of Ground Two

The appellant submits that the Member was in error to rely upon the Equifax company file. It submits that the Equifax document “is a compilation of information from various sources and not a company search”.
Nevertheless, the appellant makes the following submission:
“As a result the [appellant] repeats the matters above in so far as there is a failure to determine on the evidence whether it was the [appellant] that traded as ‘AVS Security’. The [Member] should have treated this document with caution bearing in mind it was not a company search and further that the issue she had to determine was whether the [appellant] traded as AVS Security.”
The appellant says further that the error:
“clearly affected the decision of the [Member] and had she considered the evidence in relation to the third respondent the only conclusion she could have reached was that it was the entity trading as ‘AVS Security’ and the relevant employer.
In accepting the above as a fact the [Member] relied heavily on the statements of Mr El Hassan and Ms [Mohandes-Barg] however these statements only referred to ‘AVS Security’ and not the [appellant]. There was no evidence before the [Member] to determine that when these witnesses referred to ‘AVS Security’ they were referring to the [appellant].”

Workers Compensation Nominal Insurer’s submissions in response to Ground Two

The Workers Compensation Nominal Insurer refers to footnote 5 of the reasons, which refers to the document “Company File (Comprehensive) for AVS SECURITY PTY LTD”. It says “Rhetorically, what is a ‘company search’ if not such a document produced by an information agent having conducted a search of the register?”
It adds:
“20. Section 1274A of the Corporations Act [2001 (Cth)] is entitled ‘Obtaining information from certain registers” and provides that ASIC may permit a person to search a prescribed register. This is precisely what has occurred. It is a company search.”
The company search clearly says that “the ‘Trading Names’ are (only) ‘AVS Security’.” The submission concludes:
“22. It is unclear why the appellant refers to the evidence of lay witnesses in para [4(iv)] in support of this ground as they gave no evidence to counter what is on the face of the company search.”

Mr El Hassan’s submissions in response to Ground Two

The essence of Mr El Hassan’s argument in response to ground 2 is captured in:
“14. This was not raised at the hearing and no issue was taken with this evidence. Indeed, Mr Nasr on behalf of the Appellant, himself referred to the document as a company search. He did not argue that the document could not be relied upon nor that it was not sufficient to ground a finding.”

Submissions of AVS Corporate Australia Pty Limited in response to Ground 2

AVS Corporate responds to Ground Two repeating the submissions made in relation to Ground One.
The third respondent submits:
“10. An analysis of the submissions that the Appellant makes under this ground notes a complaint that the Equifax document (First Respondent’s [Application to Admit Late Documents] filed 20 November 2020, page 132) referred to was not a company search and should been [sic] treated with ‘caution’ but in so doing accepts that this document nevertheless provided evidence that AVS Security Pty Ltd had the trading name AVS Security. The Appellant makes no criticism of the document referred to in paragraph 6 above tendered by it which contained the same information as the Equifax document being that AVS Security Pty Ltd in fact had the trading name AVS Security. (Application page 15)”
The document at page 15 of the original application is the ABN Lookup. The submission continues:
“11. Finally, the Appellant submits again at (iv) that there ‘was no evidence before the [Member] to determine that when these witnesses referred to AVS Security’ they were referring to the Appellant. This is not correct it being a reasonable inference to draw from the evidence that AVS Security Pty Ltd is the entity referred to when the name AVS Security is used, an inference supported by the documents discussed in paragraph 6 and 10 above.”

Consideration

For the reasons advanced in the consideration of Ground One of the appeal, in my view, in the absence of evidence to the contrary, the documentary and other material relied upon by the Member supported the conclusion that the appellant was the employer of Mr El Hassan when he was assaulted.
The misdescription of the Equifax document as “company search” at [13] of the reasons, if it was a misdescription, was of no significance to the Member’s determination adverse to the appellant.
The evidence accepted by the Member was available having regard to s 43 of the 2020 Act and she was entitled to conclude that the reference to “AVS Security” was a reference to the appellant, AVS Security Pty Limited. In the absence of evidence to contradict or to show the Equifax search and the ABN Lookup to be unreliable, the Member was entitled to conclude that the appellant used the trading name “AVS Security” and that when Mr El Hassan used that description to identify his employer he was identifying the appellant.
I add that I am not persuaded that the Member did misdescribe the Equifax searches when she referred to them as “company searches”. There is force in the first respondent’s submission at paragraph 20 (see [76] above). There was no objection taken at the hearing to these documents being before the Member. No attempt to contradict the contents of either the ABN Lookup entry or the result of the Equifax search.
Ground Two of the appeal is not made out.

CONCLUSION

The appellant’s submissions are based on a narrow and technical consideration of the material which is otherwise uncontradicted. The appellant’s submissions do not engage with s 43 of the 2020 Act. The Member, in my view, gave proper consideration to the material before her reaching conclusions reasonably available on the evidence before her.
The grounds of appeal are not made out and the appeal accordingly fails.

DECISION

The Member’s Certificate of Determination dated 15 March 2021 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

18 November 2021