Baines v Hany - [2018] NSWWCCPD 14

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Baines v Hany [2018] NSWWCCPD 14
APPELLANT:	Russell George Baines
FIRST RESPONDENT:	Tawfek (“Taffy”) Hany
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
INSURER OF THE FIRST RESPONDENT:	Uninsured
FILE NUMBER:	A1-3796/17
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	16 November 2017 and 29 November 2017 (Amended)
DATE OF APPEAL DECISION:	12 April 2018
SUBJECT MATTER OF DECISION:	Failure to take into account material evidence in determination of ‘injury’; whether error in consideration of indicia of employment; matters raised during conciliation not a basis for complaint – s 355 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Braye Cragg Solicitors
First Respondent: Second Respondent:	Michael J Corbett Solicitors HWL Ebsworth

ORDERS MADE ON APPEAL:

1. The finding that Mr Baines was not injured as alleged is revoked.

2. The finding that Mr Baines was not a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 is confirmed.

3. The Certificate of Determination dated 29 November 2017 that there be an award for the respondents is confirmed.

INTRODUCTION

Russell George Baines brought a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) against Tawfek (“Taffy”) Hany as the first respondent in respect of an alleged injury to his pelvis and lumbar spine on 13 May 2012.
He alleged the injury occurred when he was installing a heavy iron gate while standing in the bucket of a backhoe approximately “six feet” above the ground. He said the injury occurred when Mr Hany, who was operating the backhoe, took his foot off the brake, causing the backhoe to move. As a result, the bucket hit the brick wall of the building, which in turn displaced a length of timber from the roof of the building. Mr Baines said that the piece of timber fell, hitting his back and causing injury. The building was part of the Taree Reception Centre.
Mr Hany denied the injury occurred and further denied that Mr Baines was employed by him. He alleged Mr Baines was a self-employed handyman who performed handyman jobs for various people in the area. He further denied liability on the basis that Mr Baines had failed to give notice of injury and make a claim for compensation within the times required by s 254 and 261 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).
Mr Hany did not hold a workers compensation policy of insurance. The Workers Compensation Nominal Insurer (the Nominal Insurer) was therefore a second respondent to the proceedings. The Nominal Insurer declined liability, disputing Mr Baines was a “worker” within the meaning of s 4 of the 1998 Act and disputing Mr Baines had been injured as alleged.
The matter proceeded to arbitration on 19 October 2017. Mr Hany maintained the issues previously notified, but further argued that Mr Baines was estopped from claiming he was a ‘worker’ because he held himself out to be a self-employed contractor in the District Court proceedings referred to at [20] below.
At arbitration, the Nominal Insurer maintained only the issue of “worker” pursuant to ss 4 and 5, and Sch 1 of the 1998 Act.
The Senior Arbitrator delivered a written decision on 16 November 2017 and amended on 29 November 2017. She determined that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act. Further, she determined that she was not satisfied that Mr Baines suffered an injury as alleged. In the light of those findings, the Senior Arbitrator found it unnecessary to determine the remaining issues.
Mr Baines appeals from the Senior Arbitrator’s decision.

BACKGROUND

The following is a summary of the uncontested facts in this matter.
Mr Baines had performed handyman jobs over a number of years for Mr Hany. He also did handyman work for others.
On 16 May 2012, he attended his local doctor who provided pain killing medication. The history recorded by Dr Atef Sallam was “hit in sacrum with heavy object causing pain.”
On 1 July 2012, he attended Dr Bhati Patel of the same surgery for a sore throat, but the doctor also recorded “back pain at night since injury with timber.”
Mr Baines attended a number of doctors over the ensuing months for various complaints. On 24 September 2012, Dr Gobinda Das, general practitioner, referred him for CT scan to investigate low back and hip pain.
The CT scan disclosed a fracture of the pelvis. He was referred to Professor Zsolt Balogh, orthopaedic surgeon, who performed a fixation of the fractures with pedicles and screws and bone grafts.
Mr Baines developed increasing pain over the next few years until in 2015, Dr David Dewar, orthopaedic surgeon, performed a right total hip replacement.
On 5 August 2016, Mr Baines (through his then legal representative, Mr Phillip Young) sent a letter to the NSW State Insurance Regulatory Authority Uninsured Liability and Indemnity Scheme. The letter was described as a “First Notification” of a s 66 claim made on Mr Baines’ behalf. The compensation claimed was for 30% whole person impairment (WPI) of the right lower extremity and 7% WPI for the lumbar spine making a total of 35% on the combined values chart. The claim was made in accordance with the assessments made by Dr Murray Hyde-Page, orthopaedic surgeon, dated 11 February 2016. The correspondence also gave notice of a work injury damages claim.
Mr Baines completed a WorkCover claim form on 27 August 2016.
On 21 November 2016, icare workers insurance issued a notice pursuant to s 74 of the 1998 Act. The notice advised the claim was being disputed because Mr Baines did not suffer an injury within the meaning of s 4 of the 1987 Act, and was not a worker as defined in s 4 of the 1998 Act.
As the claim was declined by both Mr Hany and the Nominal Insurer, Mr Baines commenced these proceedings on 28 July 2017.
Mr Baines had also commenced public liability proceedings on 8 May 2015 in the District Court of New South Wales in respect of the same incident, alleging negligence on behalf of Mr Hany. Mr Baines described himself in those proceedings as a “Self-employed Contractor Handyman Labourer.” The public liability insurer denied indemnity on the basis that they considered Mr Baines to be a “worker” within the meaning of s 4 of the 1998 Act. Mr Baines’ pleading in that claim was later amended to allege the injury fell within the provisions of the Motor Accidents Compensation Act 1999 (the MACA Act).
That claim appears to be still pending.

ON THE PAPERS

Mr Baines seeks an oral hearing of the appeal. Both Mr Hany and the Nominal Insurer are content for the matter to be determined ‘on the papers’.
Mr Baines submits that the appeal should be dealt with by oral submissions, with the opportunity for explanation and discussion of “numerous matters”.[1] Those matters are not otherwise identified.
[1] Mr Baines’ submissions, Part A [2.3].
Section 354(6) of the 1998 Act provides:
“(6) 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 without holding any conference or formal hearing.”
A decision as to whether a matter ought to be determined on the papers requires a consideration of all the evidence and submissions and whether the parties have been afforded procedural fairness in order to address any issue arising from such evidence.[2]
[2] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399, [115]–[120] (per Tobias JA).
In accordance with Practice Direction No 1, factors that are relevant include whether an oral hearing has been requested, whether the parties have addressed on all issues and the complexity of the legal and/or factual issues.
While Mr Baines has requested an oral hearing, he has not identified any matter that cannot be adequately dealt with by written submissions. The issues raised on this appeal arise out of determinations made by the Senior Arbitrator as to whether Mr Baines was injured as alleged and whether he was a worker within the meaning of the 1998 Act. These are not novel issues and the factual matrix presented by the evidence is not necessarily complex.
Mr Baines has had the opportunity to address all issues raised by the appeal, including the opportunity to respond to the submissions made in opposition by Mr Hany and the Nominal Insurer.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties made on the appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing. For the above reasons, it 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 ss 352(3) and 352(4) of the 1998 Act have been met.
None of the parties seek to adduce fresh evidence on the appeal.

THE EVIDENCE

Mr Baines’ lay evidence

Mr Baines relied on his statement attached to the Application to Resolve a Dispute (ARD) dated 26 July 2017.[3] He described his limited education and his past work experience as generally manual work, including truck driving, farm labour, crane driving and bread delivery.
[3] ARD, pp 136–141.
He also spent time attending to his own 90 acre property and raising miniature horses. In addition, he acted as a carer for his wife, for which he was in receipt of a carer’s pension.
He said that during the period 2007 and 2010 he performed work for Mr Hany “from time to time”. He said he was paid $100 cash in hand with no tax deducted or superannuation. Although he worked at times for 6–7 days per week, he also worked from time to time for others.
The arrangements were that generally he would be given instructions about what to do from Mr Hany either at the end of work the day before or on the morning. In addition, each morning he would ring Mr Hany and discuss those jobs.
In September 2010, Mr Hany and Mr Baines had a falling out. Mr Hany later apologised and Mr Baines resumed work for him in August 2011. Between the falling out and August 2011, Mr Baines said he spent the time caring for his wife, doing some work for other people and working on his own property.
Mr Baines said from then he worked for Mr Hany on “most days and sometimes for full weeks.”[4]
[4] ARD, p 137, [15].
He described the various manual duties he performed and said that most of it was at the Taree Reception Centre. Additionally, he said he performed work at various other locations in the area.
Mr Baines said that prior to his injury Mr Hany started a pizza kitchen at the Taree Reception Centre and he would also work there as a cook/kitchen hand for about three nights per week. He was paid additional cash in hand.
Mr Baines nominated 5 other people who were also working for Mr Hany at this time.
He said that occasionally he would do one off jobs for relatives or friends “but these were generally unpaid matters.”[5]
[5] ARD, p 138, [24].
Mr Baines said that on the day prior to 13 May 2017, Mr Hany had discussed with him the proposed job of fixing the steel gate to the building. He described the manner in which the job was to be carried out, which essentially required him to affix the metal gate while standing in the bucket of the backhoe at about “six feet” from the ground.
He stated that the backhoe moved forward and caused the bucket to hit the brick wall and a piece of timber (a piece of ‘4 x 2’) fell from about four or five feet above, hitting him across the lower back and back of the pelvis.
Despite the pain, he continued his work for the day. The following morning, he was still in pain, so he consulted his general practitioner, Dr Sallam, who prescribed pain relief. He returned to work after two days, in difficulty and with continuing pain in his low back pelvis and right hip. He further consulted Dr Sallam on 1 July 2012 with respect to respiratory problems but also complained of back and hip pain.
Mr Baines said he saw Dr Patel in September 2012, who organised a CT scan. The scan disclosed fractures of the pelvis.
Following that, Mr Baines consulted a Dr Pepper, general practitioner, who referred him to Professor Balogh. Professor Balogh performed an internal fixation of the pelvis on 6 November 2012.
Mr Baines stated that he has not worked since the operation. He further consulted with Professor Balogh throughout 2013 and 2014. Professor Balogh indicated he could undergo surgery for the hip in January 2015. Ultimately, the surgery (a hip replacement) was performed by Dr David Dewar, orthopaedic surgeon, in February 2015.
Mr Baines relied on statements from his wife, Denise Baines, dated 7 September 2017[6] and Mr Paul Clinton, a labourer.[7]

[6] Application to Admit Late Documents (AALD), 8 September 2017.

[7] AALD, 13 October 2017.

Mrs Baines’ evidence

Mrs Baines stated that she was aware that Mr Baines performed work for Mr Hany over a lengthy period prior to May 2012. She said that Mr Baines would tell her about the work and the duties performed.
Mrs Baines said she would often accompany him when he worked at the Taree Reception Centre and made herself useful by cleaning up or making coffee, but she was not paid for what she did.
She said she did not attend the site on or about 13 May 2012. She believed it was a Sunday. She said Mr Baines rang her in the afternoon and told her what had happened. She stated that he reported to her he had a conversation with “Brenda” who had asked if he was okay and he advised Brenda he was going home after his coffee.
Mrs Baines said after he returned home they went together to do some shopping but he was unable to assist because of pain.

Mr Clinton’s evidence

Mr Clinton said that from late 2012 he was working for Mr Hany as a labourer. He stated that Mr Baines worked there prior to his commencement and worked there “as far as I could tell … fairly consistently”[8] while he was there.
[8] AALD, 13 October 2017, [5].
He said he recalled a conversation with Mr Hany wherein Mr Hany told him Mr Baines was injured and that Mr Hany was paying for treatment because Mr Baines had fallen from the bucket of a backhoe while hanging steel gates at the Taree Reception Centre.

Mr Baines’ medical evidence

Mr Baines qualified Dr Hyde-Page, who provided two medicolegal reports dated 7 August 2015 and 11 February 2016. Dr Hyde-Page took a history largely consistent with the allegations made by Mr Baines, including the mechanism of injury, the persisting symptoms and eventual surgical intervention.
In the first report, Dr Hyde-Page provided his opinion that the incident caused the fracture of the pelvis and related pathology, that there was a delayed diagnosis and that there was no other explanation for the symptoms that had persisted. He also provided opinion as to the effects of the injury, including incapacity for work.
In the second report, Dr Hyde-Page provided an assessment of the whole person impairment totalling 35%. That assessment formed the basis of the current claim for compensation.
Mr Baines relied on the radiological evidence in respect of a number of investigations of the hips, pelvis and lumbar spine undertaken between September 2012 and February 2016. The investigation first in time confirmed that Mr Baines underwent a CT scan of both hips and pelvis on 27 September 2012.
Documents from the Hunter New England Local Health District were also attached to the ARD. Those documents confirmed the treatment regime provided. Included in the documents was a report from Professor Balogh dated 18 February 2014.[9] The history recorded by Professor Balogh was that Mr Baines first consulted him on 23 October 2014 with a history of a fall from a height resulting in a pelvic/acetabular fracture with a non-union of the acetabulum.
[9] ARD, p 30.
Relevantly, the documents contain two referrals from Dr Das for specialist review. The first, dated 29 September 2012, was directed to Dr Johan Le Roux, orthopaedic surgeon of Manning Rural Referral Hospital. The history provided to Dr Le Roux was of “pain in the right hip/groin sine [sic, since] injury March 2012.”[10] The second referral was dated 10 October 2012 and directed to Professor Balogh. The history was “pain since last 5 months after a fall …”[11]
[10] ARD, p 83.
[11] ARD, p 86.
Mr Baines also relied on the clinical notes from the practice of Dr Lawrence Nguyen consisting of entries dating from 2004 to 12 November 2012.
The history provided from the notes prior to 2012 is unremarkable. From 2011 to 14 March 2012, Mr Baines consulted Dr Nguyen with respect to ongoing issues with his left shoulder and arm. On 16 May 2012, Dr Sallam of that practice recorded a history of “hit in sacrum with heavy object 2kg causing pain”.[12] On 1 July 2012, Mr Baines attended for treatment of a respiratory condition but also complained of “back pain at night since injury with timber”.[13] Mr Baines next attended the practice for other matters on two occasions and on 24 September 2012 consulted with Dr Das who recorded “Low back pain, hips pain for months after a fall”.[14] Dr Das organised a CT Scan.
[12] ARD, p 118.
[13] ARD, p 118.
[14] ARD, p 117.
Dr Das recorded the same history on four later consultations.
The clinical notes from Main Surgery, Taree are also annexed to the ARD. It appears from those notes Mr Baines first consulted Dr Armi Aganan of that practice as a new patient on 19 November 2012. That consultation was after the right hip surgery performed by Professor Balogh and the consultation was for the purposes of reviewing the surgery wound. Dr Aganan noted a history of “fall last May 2012.”[15]
[15] ARD, p 98.
Mr Baines also attended a medical assessment by Dr Trevor Best, orthopaedic surgeon, for the purposes of a claim under the MACA Act. The report is also annexed to the ARD. The Medical Assessment Service recorded a consistent history and assessed his impairment for the purposes of the MACA Act.

Mr Hany’s lay evidence

Mr Hany’s legal representatives filed a Reply to Application to Resolve a Dispute (Mr Hany’s Reply) on his behalf, adopting the issues maintained by the s 74 notice issued by the Nominal Insurer.
Mr Hany provided a statement dated 21 September 2016 in respect of the motor accident claim.[16] He denied the incident alleged by Mr Baines ever occurred and asserted that Mr Baines’ mobility was no different at any time during the period he had known him.
[16] Mr Hany’s Reply, pp 30–32.
On 28 September 2017, Mr Hany made a further statement.[17] He provided details of the arrangements between Mr Baines and him as follows:
(a)    He did not know Mr Baines until after he purchased the Taree Reception Centre in 2007;
(b)    From that time Mr Baines started to appear on site seeking odd jobs;
(c)    Mr Baines would identify potential jobs and how much he would charge for that work, and
(d)    Mr Hany would either approve or not approve the job depending on whether he considered it necessary.
[17] Mr Hany’s AALD dated 3 October 2017, pp 33–36.
Mr Hany disputed that Mr Baines sometimes worked six or seven days per week. He said that some of the tasks might have taken about 30 minutes. There was a time when Mr Baines did not do any work for an extended period time.
Mr Hany denied the allegations that:
(a)    Mr Baines would get his instructions directly from Mr Hany;
(b)    Mr Hany would ring or talk to Mr Baines the day before and advise and discuss with him the work to be done, and
(c)    Mr Baines would ring Mr Hany each morning to check on instructions and to wake Mr Hany up.
Mr Hany provided the name of a person for whom Mr Baines also did work in 2011. He further stated that both before and after May 2012, Mr Baines did work for him on a house across from the Taree Reception Centre and that during that time Mr Baines did not mention an accident or that he had been injured.

Mr Hany recalled a time when Mr Baines approached him for a loan of $400. Mr Baines told him that he needed to take Mrs Baines and himself to a specialist in Newcastle, and that Mr Baines said he was worn out and lucky to have the operation at that stage in his life. Mr Hany said Mr Baines did not mention anything about an accident.
Mr Hany further recalled an incident in or around December 2013 when Mr Baines had performed work for him that he felt was insufficient to warrant payment of $100 plus petrol. Mr Hany said a verbal altercation followed and Mr Baines left. That was, Mr Hany said, the last time he saw Mr Baines.
Mr Hany denied Mr Baines worked on the properties nominated that were owned by Mr Hany and Mr Hany disputes he owned two of the properties.
Mr Hany further denied telling Mr Baines he should have some time off.
Mr Hany reiterated that he denies any accident occurred in his presence, that he was a party to any accident and asserted that Mr Baines never complained to him of sustaining an injury.
Mr Hany stated that from his lengthy experience in working in excavation and demolition, the mechanism of injury is inconceivable. He stated that the work installing the gates was done by himself and describes in detail the steps taken by him.
A statement dated 29 September 2017 was also provided by Ms Brenda Chalmers in response to Mrs Baines’ evidence that Mr Baines reported a conversation between him and “Brenda”. Ms Chalmers was alleged to have enquired as to how Mr Baines was on the day of the injury. Ms Chalmers stated that she formerly worked for Mr Hany and also knew Mr and Mrs Baines well as they had been her next-door neighbours. Ms Chalmers denies having the conversation with Mr Baines as to his wellbeing.
Annexed to Mr Hany’s Reply was an affidavit by Mr Baines (with annexure) filed in the District Court proceedings.[18] Relevantly, the affidavit asserted the following:
(a)    Mr Baines was at the time of injury a self-employed handyman;
(b)    the injury occurred in the manner and circumstances relied upon in these workers compensation proceedings;
(c)    the injury was caused and witnessed by Mr Hany, and
(d)    after the incident Mr Hany apologised for allowing the front-end loader to move.
[18] Mr Hany’s Reply, pp 1–16.
The affidavit disclosed that Mr Baines consulted three different solicitors. He alleged the first advised only with respect to a medical negligence claim, the second filed the public liability claim in the District Court, but did not advise with respect to any motor accident claim. Mr Baines then consulted Mr Young, solicitor, on 10 November 2015 who advised him for the first time about entitlements and procedural and time limit requirements with respect to motor accident claims.
Mr Hany also relied on an amended Statement of Claim filed by Mr Baines in the District Court proceedings. The amended Statement of Claim asserts Mr Hany engaged Mr Baines to perform odd jobs “if he was not otherwise engaged by some other person.”[19]
[19] Mr Hany’s Reply, p 18.
An AALD dated 29 September 2017 was filed by Mr Hany. Annexed to that AALD were further documents relating to correspondence passing between Mr Young (Mr Baines’ solicitor) and Mr Michael Corbett (solicitor for Mr Hany) with respect to the progression of the District Court proceedings and the joinder of the public liability insurer. An affidavit by Mr Brad Corcoran (Mr Hany’s subsequent solicitor) was annexed to the AALD, which also provided evidence with respect to the joinder of the public liability insurer as a cross-claim by Mr Hany.
Attached to the AALD were two further affidavits of Mr Baines filed in the District Court proceedings. Those affidavits dealt with the early history of legal advice provided to Mr Baines and site pictures of the Taree Reception Centre, including the area where the metal gates were affixed.
The AALD also contained a statement from Ms Gretta Budge, Mr Hany’s partner, dated 28 September 2017. Ms Budge stated that she first became aware of the allegations made by Mr Baines when Mr Hany was served with a Statement of Claim in or around late May 2015. She said she first met Mr and Mrs Baines in about late 2007. She said she and Mr Baines often conversed about horseracing. She stated he told her he had done a lot of horse riding and it had taken a toll on him. They often talked about hip problems and had many conversations between 2007 and 2013. She was surprised that Mr Baines had never mentioned the alleged incident.
Included in the AALD were photographs of the steel gates that had been affixed between the building and the cool room of the Taree Reception Centre.
A further AALD dated 17 October 2017 was filed on behalf of Mr Hany. Attached to that AALD was a letter dated 21 September 2016 from Mr Corcoran directed to Mr Young in response to Mr Baines’ claim for lump sum compensation made on 5 August 2016. The letter denied liability for the claim on the basis that:
(a)    Mr Baines was not a worker as defined by the 1987 Act or a deemed worker within the meaning of Sch 1 of the 1998 Act;
(b)    Mr Baines did not sustain an injury;
(c) compensation was not recoverable because Mr Baines had failed to give notice of injury and did not make a claim within the time limits required by ss 254 and 261 of the 1998 Act, and
(d)    alternately, he suffered no whole person impairment, or the impairment was less than 34%.
The letter also disputed liability with respect to Mr Baines’ Work Injury Damages claim.

Mr Hany’s medical evidence

Mr Hany also relied on a forensic medical report provided by Dr Roger Rowe, orthopaedic surgeon, dated 30 August 2017.[20]
[20] AALD, 29 September 2017, pp 23–30.
Dr Rowe examined Mr Baines. He took a very brief history of injury and provided a summary of the treatment that followed. He reviewed the radiological evidence. He concluded that if the impact involved considerable violence and compression of the pelvis, the mechanics of injury would be sufficient to cause the fractures identified on the CT scan taken on 27 September 2012. He opined that if Mr Baines had been struck by a piece of falling timber alone, that would be insufficient to cause the pathology. He considered other explanations for the pathology but found those to be unlikely.
Dr Rowe concluded he agreed with Dr Harrington’s assessment (discussed below). He said it would be most unusual that someone would be able to continue to work for the period alleged. He stated he accepted Mr Baines’ story because he was continuing to work under significant opiate consumption. He found it difficult to understand how Mr Baines continued to work effectively while being so heavily medicated.

The Nominal Insurer’s evidence

The Nominal Insurer qualified Dr Chris Harrington, orthopaedic surgeon, to examine Mr Baines and provide a report on its behalf.
In his report dated 8 November 2016,[21] Dr Harrington took a history of the injury and treatment provided. He recorded that Mr Baines described the incident, in which the piece of timber fell from a height of “about 15 feet”, onto his back and pinned him inside the bucket.
[21] The Nominal Insurer’s Reply, pp 1–7.
Following an examination of Mr Baines and a review of the radiological evidence, he said that Mr Baines had suffered a significant injury on 13 May 2012. From his experience with the type of injury, he found it incredible that Mr Baines had been able to resume and continue working as he did. He diagnosed “right superior/inferior pubic rami fractures and a soft tissue injury to the lumbar spine (resolved).”[22] He formed the view that those injuries resulted from the incident on 13 May 2012 and that Mr Baines’ employment was the main contributing factor.
[22] The Nominal Insurer’s Reply, p 4.
Further documents attached to the Nominal Insurer’s Reply consisted of the Statement of Claim filed by Mr Baines in the District Court proceedings,[23] a WorkCover Uninsured Liabilities claim form[24] and a document headed “Schedule A’”, signed by Mr Corcoran, solicitor for Mr Hany, dated 3 November 2016.[25]
[23] The Nominal Insurer’s Reply, pp 8–13.
[24] The Nominal Insurer’s Reply, pp 14–19.
[25] The Nominal Insurer’s Reply, pp 20–26.
As with the amended Statement of Claim relied on by Mr Hany at [81] above, the Statement of Claim asserted Mr Hany engaged Mr Baines to perform odd jobs “if he was not otherwise engaged by some other person.”[26]
[26] The Nominal Insurer’s Reply, p 9, [3].
The WorkCover Uninsured Liabilities claim form was completed by Mr Baines on 27 August 2016. He gave a brief description of injury. He nominated Mr Hany as his “employer/ engager”.[27] He advised he did not work solely for Mr Hany, and did the work of a contractor at varying hours. Where requested to provide details of other employment he wrote “contracted variously at various times – cash in hand”.[28]
[27] The Nominal Insurer’s Reply, p 14 Part 2.
[28] The Nominal Insurer’s Reply, p 16 Part 7.
The document headed “Schedule A” consisted of a request for particulars from what appears to be the Nominal Insurer directed to Mr Hany. In response, Mr Hany (through Mr Corcoran) denied ever employing Mr Baines. Mr Hany asserted he was operating as a sole trader and denied any knowledge of the alleged injury. He conceded Mr Baines had done odd jobs for him but he also did jobs for other locals. He said Mr Baines “scarcely” did those jobs and that he had no usual hours or duties. He said when Mr Baines was required, he would be paid cash in hand.

Other documentation

At arbitration, counsel for Mr Baines tendered colour versions of the photographs referred to in [85] above. He also handed up a chronology of events prepared for the purposes of Mr Baines’ District Court proceedings.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator delivered written reasons for her decision. She noted counsel for Mr Baines had made an application to adduce further evidence from Mr Baines and to cross-examine Mr Hany. She further noted that after an extended conciliation, an agreement was reached with respect to a number of concessions made between counsel for Mr Baines and Mr Hany. She recorded that because of that agreement, the need to adduce further evidence from Mr Baines was unnecessary.
The concessions were:
(a)    The photographs show that the cool room sat on an independent frame and was not otherwise secured to the building. The gates were affixed to the building on the one side and the cool room on the other;
(b)    The gates were made of steel and heavy (but not as heavy as Mr Baines made out);
(c)    The fence pictured in the photographs was not in place in 2012 so that at the time the backhoe could have driven close to the building;
(d)    The photos were taken in 2015;
(e)    The marks circled with pen in the photographs were marks that Mr Baines alleged were made when the excavator bucket hit the wall;
(f)    13 May 2012 was a Sunday and was Mother’s Day, and
(g)    Mr Hany agreed that some work was done on Sundays but could not say whether he worked that day.
The Senior Arbitrator further noted that the application to cross-examine Mr Hany was not required because it was agreed that paragraphs [23] and [25] of his statement (presumably the statement dated 28 September 2017) would be read subject to weight, as would the statement of Mr Clinton.
The Senior Arbitrator reviewed all of the evidence before her and summarised the submissions of the parties.

The issue of ‘injury’

The Senior Arbitrator determined that after a consideration of all the evidence, she was not reasonably satisfied that an injury occurred “in the manner alleged … on 13 May 2012”.[29]
[29] Baines v Hany [2017] NSWWCC 283 (Reasons), [135].
In forming that view, she reasoned that the circumstances of the injury were highly unusual. She said the photographs did not assist in identifying any impact from the backhoe. Only Mr Baines described the circumstances in detail or at all.
The Senior Arbitrator noted the submission made by counsel for Mr Baines that the cool room was a separate structure, but observed that fact did not appear anywhere in Mr Baines’ evidence.
The Senior Arbitrator reviewed the evidence of Mrs Baines and Mr Clinton. With respect to Mrs Baines, the Arbitrator noted that the reported conversation between Mr Baines and Ms Chalmers was denied by Ms Chalmers. The Senior Arbitrator noted the statement by Mr Clinton was not made until October 2017.
The Senior Arbitrator further noted the strong denial by Mr Hany that the injury occurred but also that he provided a plausible description of how he (rather than Mr Baines) had attached the gates.
In relation to the medical evidence, the Senior Arbitrator observed that there was no contemporaneous reference to the circumstances of the injury in that evidence. She indicated that the injury was “not treated as an acute injury and no scan was undertaken for several months.”[30]
[30] Reasons, [143].
The Senior Arbitrator referred to the discrepancy in Mr Baines’ evidence that the injury occurred on 13 May 2012, and he consulted the doctor on the following day, whereas the doctor’s records showed an entry on 16 May 2012 that Mr Baines was “hit in sacrum with a heavy object 2 kg causing pain.”[31] The Senior Arbitrator further referred to the District Court pleadings, which in parts, referred to the date of injury as 15 May 2012 and reasoned that either the injury did not occur on 13 May 2012 as alleged or Mr Baines did not attend a doctor the day after the injury.
[31] Reasons, [144].
The Senior Arbitrator noted the visit to Dr Patel on 1 July 2012 where the doctor recorded “back pain at night since injury with timber” as well as the two subsequent visits when no record was made of any low back or hip symptoms. Without noting the date of the consultation, she referred to the entry made on 24 September 2012 by Dr Das recording low back and hip pain for months after a fall. The Senior Arbitrator commented that Dr Das made detailed notes of his observations and a comprehensive letter of referral to Dr Le Roux, in which the history of a fall was repeated and said to have occurred five months before.
The Senior Arbitrator said she found it surprising that in correspondence dating from 14 November 2012 from LHD Lawyers, Mr Baines’ legal representatives made no reference to the mechanism of injury. This was particularly surprising because of the very unusual circumstances. Also, the correspondence referred to a date of injury as 5 May 2012. The Senior Arbitrator considered that it might be expected that in view of the history now relied on and LHD Lawyers’ advice against bringing a medical negligence claim, a potential cause of action against Mr Hany would have been considered. The Senior Arbitrator said the explanation may have been because Mr Baines continued to do some work for Mr Hany until December 2013.
The Senior Arbitrator noted that the evidence disclosed the first consistent record of a description of the injury was not until 8 May 2015, almost three years later. The first evidence of the weight of the gates was that recorded by Dr Hyde-Page on 7 August 2015. The weight of the timber increased from 2 kilograms recorded by Dr Sallam, up to 15 kilograms.
The Senior Arbitrator expressed a view that it was important that Mr Baines did not assert employment with Mr Hany until he made his permanent impairment claim on 5 August 2016 (although his solicitor had sought an assessment for the purposes of a s 66 claim in February 2016).
The Senior Arbitrator also noted the varied history provided over the passage of time as to the mechanism of injury, that included:
(a)    the history to Dr Hyde-Page recorded on 1 August 2015 that his little and ring fingers were crushed against one of the gates;
(b)    his affidavit evidence that his hand was jammed by the gate (10 December 2015);
(c)    the first history of being pinned in the bucket by the timber was in the report of Dr Harrington in late 2016, and
(d)    Dr Harrington also recorded the piece of timber fell from a height of “15 feet”.
The Senior Arbitrator further reviewed the medical opinions of Dr Harrington and Dr Rowe. Dr Harrington noted that the fractures observed on the CT scan were old. Both Doctors accepted that the injury was suffered in the manner alleged but each expressed doubt that Mr Baines would have been able to continue to work following such injury. The Senior Arbitrator noted the qualification to Dr Rowe’s opinion, that is that it was contingent upon the timber hitting with considerable violence and some compression of the pelvis resulting in him being trapped between the timber and the bucket. Merely being struck by the timber would not have caused the fractures.
On the basis of all of the above, the Senior Arbitrator concluded that Mr Baines’ description of the incident has changed over time. Further, evidence of the circumstances of the injury “in the form now relied on”[32] was not recorded until three years after the incident alleged. She concluded that she was unable to determine what happened in May 2012 and was therefore not satisfied on the balance of probabilities that Mr Baines suffered an injury on 13 May 2012.
[32] Reasons, [157].

The ‘worker’ issue

The Senior Arbitrator noted that as Mr Baines had not succeeded on the first issue, it was not necessary to determine this issue. She proceeded in any event to provide reasons and determine that Mr Baines was not a worker within the definition of s 4 of the 1998 Act.
She said she understood the submission by Mr Baines’ counsel was that he was a casual worker employed for the day on which he was injured. She further noted that Mr Baines was not pursuing the alternate case that he was a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act.
The Senior Arbitrator considered relevant passages from judgment of Bromberg J in the Federal Court decision of On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3).[33] She further referred to the indicia set down in the High Court decision of Stevens v Brodribb Sawmilling Co Pty Ltd.[34]
[33] [2011] FCA 366 (On Call Interpreters).
[34] [1986] HCA 1; 160 CLR 16; 60 ALJR 194; 63 ALR 513 (Stevens).
The Senior Arbitrator described Mr Baines’ statement as “brief and provides little detail about the arrangements between him and Mr Hany. That may be because the arrangement was a loose one. Many of the indicia … are irrelevant.”[35] Mr Baines stated he did one off jobs for friends and relatives that were generally unpaid. The Senior Arbitrator agreed with counsel for the Nominal Insurer that the evidence suggests that at times he was paid.
[35] Reasons, [165].
The Senior Arbitrator maintained there was a conflict between Mr Hany and Mr Baines as to how the arrangements to perform work were made. Mr Hany did not dispute that Mr Baines did some jobs for him on properties he owned.
The Senior Arbitrator formed the view that it was likely that Mr Hany sought out Mr Baines to do that work, which continued until December 2013. She said she inferred that the work done was either agreed to or requested by Mr Hany.
Mr Hany said Mr Baines provided his own tools and vehicle. Mr Baines’ statement was silent on that point. The Senior Arbitrator also commented that there was some disagreement as to how many hours and how often Mr Baines worked, but she had no doubt that Mr Baines performed work on many occasions for Mr Hany. That of itself did not mean that he was a worker. Further there was no evidence as to any obligation to perform the work.
The Senior Arbitrator maintained that other than the work done on 13 May 2012, Mr Baines did not give any detail of Mr Hany’s role in the allocation and supervision of work.
The cash payments made to Mr Baines did not have tax deducted and were not recorded in any documentation.
The Senior Arbitrator discussed the evidence of Mr Hany providing $400 so that Mr and Mrs Baines could attend a specialist appointment. She said that evidence did not assist with the determination as to whether Mr Baines was a worker, particularly as it was for both of them to attend the specialist.

The Senior Arbitrator noted that until mid-2016, Mr Baines described himself as a self-employed contractor in all of the District Court proceedings and the chronology handed up at arbitration.
The Senior Arbitrator said the Uninsured Liabilities claim form provided conflicting information. Mr Baines referred to Mr Hany as being his “employer/engager.” He acknowledged receipt of a carer’s pension since 6 October 1999. He disclosed he worked as a contractor for varying hours and amounts. He denied working solely for Mr Hany and “contracted variously – cash in hand” but denied working on his own account or in partnership. He signed a statutory declaration at the end of the form.
The Senior Arbitrator concluded that on the evidence before her:
“… the real substance of the relationship was that Mr Baines loosely carried on a business as a handyman, undertaking work for cash and providing his own tools. While he appears to have worked often for Mr Hany, the relationship was exclusive.
Mr Baines carries the onus of proving that he was a worker within the meaning of the legislation and I am not persuaded on the evidence that he has done so.”[36]
[36] Reasons, [177]–[178].
In respect of the issue of estoppel in pais raised at arbitration by Mr Hany, the Senior Arbitrator declined to determine the issue because she had found against Mr Baines on the issue of worker.
The initial Certificate of Determination was issued on 16 November 2017. It was amended on 29 November 2017. The only amendment was to correct the names of the respondents to reflect Mr Hany as the first respondent and the Nominal Insurer as the second respondent.
The Certificate of Determination issued on 29 November 2017 records:
“1. Award for the respondents.”

GROUNDS OF APPEAL

Mr Baines alleges the following errors by the Senior Arbitrator:
(a)    Ground One: Error of fact, law or discretion by failing to support an application to cross-examine. He alleges such failure has led to error in findings of fact and law;
(b)    Ground Two: Error of law by not applying the principles in Briginshawv Briginshaw;[37]
(c)    Ground Three: Error of fact and law in finding that the accident did not happen at all, such finding being against the weight of the evidence;
(d)    Ground Four: Error of law and discretion in making an adverse finding as to Mr Baines’ credit, which was against the weight of the evidence;
(e)    Ground Five: Error of law in finding against the credit of Mr Baines in the light of the Respondent’s concessions, which were made to obviate the need for cross-examination of Mr Baines, and
(f) Ground Six: Error of fact and law in finding that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act.

[37] [1938] HCA 34; 60 CLR 336 (Briginshaw).

LEGISLATION

Excluding exceptions which are not relevant to these proceedings, s 4 of the 1998 Act defines “worker” as:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”
Section 355 of the 1998 Act provides:
“355 Arbitrator to attempt conciliation
(1) The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.
(2) No objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator had previously used the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement.”

SUBMISSIONS

Mr Baines’ submissions

Ground One: Error of fact, law or discretion by failing to support an application to cross-examine

Mr Baines submits that during the conciliation phase, his counsel made a vigorous application to cross-examine Mr Hany. This application had been foreshadowed at the teleconference and Mr Hany was available and in attendance.
Mr Baines says that he was also available for cross-examination so as to avoid a Browne v Dunn[38] point being made by either Mr Hany or the Nominal Insurer.
[38] (1893) 6 R 67 (Browne v Dunn).
Mr Baines submits that Mr Hany’s defence was that the injury did not happen at all, which was effectively an allegation of fraud. He says the first time the allegation that Mr Baines had fabricated the matter was made in a statement from Mr Hany only three weeks before the arbitration. Mr Baines’ counsel therefore concluded that Mr Hany’s evidence should be tested and Mr Baines probably needed to give oral evidence as well.
Mr Baines says the Senior Arbitrator strongly pressed the parties to forego seeking oral evidence and that she was capable of determining the issues ‘on the papers’.
He maintains there was no warning given by the Senior Arbitrator that the “Briginshaw test” would be applied and that as a result the concessions recorded above were agreed.
Mr Baines maintains that as a result, he “was entitled to consider that he did not need to establish that the accident did not happen at all”[39] (emphasis in original).
[39] Mr Baines’ submissions, [5(f)].
He submits that cross-examination of Mr Hany “would have allowed the [Senior] Arbitrator to satisfy herself as to grave matters which she later found against the Appellant.”[40] Mr Baines submits that had cross-examination been allowed, she would have concluded that the injury occurred as alleged.
[40] Mr Baines’ submissions, [6(a)].

Ground Two: Error of law by not applying the principles in Briginshaw

Mr Baines says that it was not until a very late stage that Mr Hany provided statement evidence that the injury did not occur and that Mr Hany had actually performed the work of installing the gates. He submits that on the basis of that evidence, the Senior Arbitrator impliedly accepted that Mr Hany performed the task and the injury, therefore, did not occur at all. That finding had a grave consequence for Mr Baines.
Mr Baines maintains that the failure to test the evidence either by cross-examination or the Senior Arbitrator’s own enquiries led to the Senior Arbitrator failing to apply the principles set out in Briginshaw. He maintains that the Senior Arbitrator was not entitled to come to the conclusion that the injury did not occur at all without cross-examination.
Mr Baines submits that cross-examination of both Mr Hany and himself would have allowed Mr Baines to respond to matters which the Senior Arbitrator found implausible.
Mr Baines further submits that the Senior Arbitrator erred in law because she made a finding adverse to Mr Baines “on the ‘Briginshaw’ onus.”[41] He says Mr Hany conceded that no Browne v Dunn point would be taken on Mr Baines’ evidence, but that Mr Baines made no reciprocal concession. He refers to the transcript of proceedings.[42]
[41] Mr Baines’ submissions, [8(e)].
[42] Transcript of Arbitration Proceedings of 19 October 2017 (T), 5.19–24.
Further, the manner in which the injury occurred ought to have been the subject of cross-examination in order for the Senior Arbitrator to be able to draw a conclusion that the injury occurred in “highly unusual circumstances”.

Ground Three: Error of fact and law in finding that the accident did not happen at all, such finding being against the weight of the evidence

Mr Baines submits that the Senior Arbitrator’s finding that he had not discharged the onus of proof was based on her perception of a number of deficiencies in the evidence which overall formed a picture of implausibility. He says that each matter should have been the subject of separate findings, which “on an overall basis”[43] would have supported the claim.
[43] Mr Baines’ submissions, [10(a)].
Firstly, the Senior Arbitrator took into account that Mr Baines’ evidence was the only account of the injury. Mr Baines says that as there were only he and Mr Hany present, and Mr Hany denied the occurrence of injury, that would not make Mr Baines’ evidence implausible.
Mr Baines also referred to the following observations provided by the Senior Arbitrator that lead to her conclusion:
(a)    the unusual circumstances of the injury were not recorded by the doctors;
(b)    Mr Baines’ mistake as to the date of consultation with the general practitioner, and
(c)    the general delay in giving an accurate account.
Mr Baines submits that these “findings” are all infected with error “both judicially and procedurally”[44] and cannot be sustained.
[44] Mr Baines’ submissions, [10(c)].
Mr Baines refers to the concession by Mr Hany that the marks in the photographs was alleged by the worker to be the point of impact of the bucket. Mr Baines submits that he (Mr Baines) was not cross-examined on that subject and so it should have been found that the marks on the bucket were factually consistent with his case. Mr Baines repeats the concession made by Mr Hany that no Browne v Dunn point would be taken with respect to any factual allegation. Mr Baines says that Mr Hany could only succeed on that point if it had been put to Mr Baines that the evidence was inconsistent or fabricated.
Further, Mr Baines submits that Mr Hany ought to have been cross-examined about his version of how the gates were installed by him, and not by Mr Baines. He maintains that to impose the Briginshaw onus, in the absence of the evidence being tested, was an error and the finding ought to be reversed.
Mr Baines referred to the evidence of Mrs Baines, which is said to be evidence of a contemporaneous account by Mr Baines to Mrs Baines of the accident. It was also a contemporaneous account of a report to her of a conversation between Ms Chalmers and Mr Baines. Mr Baines refers to the Senior Arbitrator’s reasons at [137], where the Senior Arbitrator considered that statement and the statement of Ms Chalmers and submits that by implication, Mrs Baines’ evidence was rejected. Mr Baines maintains that the only part of the statement that could be traversed by Ms Chalmers’ evidence was Ms Chalmers’ denial of the conversation. The evidence of Mr Baines’ account to Mrs Baines of the accident was not challenged and should have been accepted.
Additionally, Mr Baines asserts that the Senior Arbitrator simply ignored the evidence of Mr Clinton, who said Mr Hany had told him of Mr Baines having had an accident involving the backhoe in December 2012. Mr Baines submits that evidence is highly relevant in the context of Mr Hany’s uninsured status and the significant personal liability he faced if the claim succeeded. Mr Baines also submits that the evidence from Mr Clinton that Mr Hany was paying medical expenses was persuasive. This was said to be in the context of Mr Baines’ status as a “cash in hand handyman” with a tenuous and intermittent relationship with Mr Hany. Mr Baines points out that the only basis upon which that evidence was criticised, was that it was not contemporaneous evidence.
Mr Baines submits the Senior Arbitrator’s finding that Mr Hany’s account was plausible ignores the concession made by Mr Hany on the Browne v Dunn point when the plausibility of that account was not put to Mr Baines. He maintains that by failing to do so, the Senior Arbitrator should have found the plausibility of Mr Baines’ evidence was not in issue.
Further, Mr Baines submits the Senior Arbitrator’s findings that Mr Baines’ version of events provided to the various medical and legal professionals was inaccurate and inconsistent was sufficient to find against Mr Baines failed to consider the factual circumstances and Mr Baines’ explanation. Mr Baines again refers to the Browne v Dunn concession already made.[45]
[45] Mr Baines’ submissions, [10(k)].
Mr Baines asserts that LHD Lawyers were engaged to investigate Mr Baines’ treatment, not the cause of his injury. If there was to be a contest on the facts as to when and how the injury occurred, then Mr Hany was obliged to put those matters to Mr Baines. Mr Baines says the concessions made prior to the arbitration were a deliberate avoidance of cross-examination.
Mr Baines also submits that the Senior Arbitrator failed to properly consider the “presence” of the supporting evidence of Mr Clinton and Mrs Baines.
He maintains that the Senior Arbitrator has misconceived and inaccurately recorded the history provided to Dr Harrington, that Dr Harrington did not record that Mr Baines was pinned to the bucket by the object hitting his back. Further, nothing substantial turns on the difference between the history provided to Dr Harrington and Mr Baines’ statement evidence.
Mr Baines asserts that the Senior Arbitrator formed an adverse view of his case when “[Mr] Hany conceded no issue would be taken”[46] on that point. Again, Mr Baines says the inconsistency and inaccuracies were not explored in cross-examination. On that basis Mr Baines is entitled to have the Senior Arbitrator’s findings reversed.
[46] Mr Baines’ submissions, [10(n)].
Mr Baines submits that the Senior Arbitrator erred by making an adverse finding based on the opinions of Dr Harrington and Dr Rowe. He says that neither doctor found it impossible that Mr Baines continued to work after the injury. They found it incredible, but did not eliminate the possibility. Importantly, Dr Rowe in any event arrived at the opinion that the pathology arose out of the incident. Mr Baines points out that there is no dispute as to the pathology, which had not been properly diagnosed by Dr Sallam and there was no evidence or suggestion of any other cause. Once again, Mr Baines says that there was no cross-examination on this point and the Senior Arbitrator’s findings were “unavailable, plainly wrong and/or were infected with unfairness.”[47]
[47] Mr Baines’ submissions, [10(q)].
Mr Baines maintains that the Senior Arbitrator’s concerns about the history were explained in the unchallenged evidence. That evidence was that he originally sought legal assistance with respect to the sub-optimal treatment of his condition, not the cause. He says the Senior Arbitrator failed to consider that he was not then aware of his workers compensation entitlements or rights under the motor accident law. Further, it is also relevant that Mr Baines had returned to some work with Mr Hany, and subsequently underwent a hip replacement, following which, he was significantly incapacitated.
Mr Baines submits that his counsel did not persist with an application to cross-examine Mr Hany because the relevant concessions were recorded and the Senior Arbitrator failed to specifically warn that the Briginshaw test was to be applied.
Mr Baines further submits that his concession that the injury occurred on Mother’s Day was a “simple method of forensically tying down [of] the date”[48] and that the evidence available from the general practitioner’s notes was the mechanism of the injury, rather than the date. To elevate the concession into an adverse credit finding was unfair and on the basis of the principles in Browne v Dunn was not available.
[48] Mr Baines’ submissions, [11(a)].
Mr Baines says that the Senior Arbitrator should have found the accident occurred and would have done so if she did not find the accident implausible.

Ground Four: Error of law and discretion in making an adverse finding as to Mr Baines’ credit, which was against the weight of the evidence

Mr Baines submits that the Senior Arbitrator’s finding that the injury did not happen “at all” is a finding against Mr Baines’ credit. In the context of the concessions made (in particular that no Browne v Dunn submission would be made) an adverse finding of credit was not available.
He further submits that there was no evidence to support the view that Mr Baines’ credit was an issue and lack of cross-examination meant such finding was unavailable.

Ground Five: Error of law in finding against the credit of Mr Baines in the light of the respondent’s concessions, which were made to obviate the need for cross-examination of Mr Baines

Mr Baines again submits that the concession that Mr Hany would not take any Browne v Dunn point meant that as a matter of fairness, it was not open to the Senior Arbitrator to come to the conclusions that she did without those matters being squarely put to Mr Baines.
He says the finding with respect to injury should be reversed.

Ground Six: Error of fact and law in finding that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act

Mr Baines alleges the Senior Arbitrator erred in making the determination that he was a self-employed contractor. He alleges error in basing that finding on his own classification recorded in the documents before the Commission, including the District Court documents.
Mr Baines submits that the self-categorisation of his employment status is irrelevant to the legal determination of that issue.
He submits that in his statement he gives evidence that in the period leading up to the injury he only did work for Mr Hany, at Mr Hany’s direction. He worked for no one else at that time.
Mr Baines further submits that the Senior Arbitrator erred in the following respects:
(a)    The Senior Arbitrator described in her reasons at [177] Mr Baines’ working relationship with Mr Hany as “exclusive”. He submits this was so clearly inconsistent with other considerations that it was either an error or supportive of Mr Baines case;
(b)    By finding that the lack of obligation to attend work at any particular time is indicative of him being a contractor. He submits it is not inconsistent with him being a casual employee;
(c)    There was no evidence of Mr Hany allocating or directing work. Mr Baines maintains there is evidence in a number of paragraphs in his statement;
(d)    Taking into account the description of Mr Baines as a contractor, which was largely an attempt by others to describe a relationship, which was not clear cut. Mr Baines maintains that it is well settled that someone describing themselves as a contractor does not make it so, and
(e)    The Senior Arbitrator accepted counsel for the Nominal Insurer’s submission that Mr Baines was paid for work he did for friends and relatives.
In summary, Mr Baines submits that the Senior Arbitrator has favoured the categorisation of the relationship contained in the documents, rather than considering the indicia set out in the case law including Hollis v Vabu Pty Ltd.[49] He maintains there was ample evidence of a casual employer/employee relationship.
[49] [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 181 ALR 203 (Hollis).

Mr Hany’s submissions

Mr Hany makes general submissions that the appeal does not articulate any error of fact, law or discretion as required by s 352(5) of the 1998 Act. He maintains Mr Baines’ submissions are mere assertions that the Senior Arbitrator was wrong. Mr Hany says much of the Senior Arbitrator’s recital referred to by Mr Baines is of her largely uncontroversial observations of the evidence and submissions. He submits that Mr Baines argues that some “impermissible inference” must have been drawn from these observations.
He submits that five of the six grounds of appeal are founded either wholly or partly on the lack of cross-examination of the lay witnesses.
Mr Hany further submits that reliance on that proposition is misconceived. The Senior Arbitrator did not refuse to allow cross-examination and whatever occurs during conciliation cannot constitute an error in the decision-making process.[50]
[50] Section 355 of the 1998 Act.
Mr Hany contends that the complaint the findings were made in the absence of cross-examination “compromises the potency, if any,”[51] of grounds two to five. This is especially so, it is said, because counsel for Mr Baines acquiesced to the matter proceeding on that basis.
[51] Mr Hany’s submissions, [12].

Ground One: Error of fact, law or discretion by failing to support an application to cross-examine

Mr Hany submits this ground and Mr Baines’ submissions do not identify any determination, nor any error and should be dismissed.

Ground Two: Error of law by not applying the principles in Briginshaw

Mr Hany submits that the Senior Arbitrator referred to Briginshaw. He further submits that the Senior Arbitrator made the “unremarkable” observation that the standard of proof required was “on the balance of probabilities”.
He asserts that Mr Baines does not identify any principle that the Senior Arbitrator failed to apply, other than the evidence was not tested by cross-examination. Without identification of the principle which the Senior Arbitrator failed to apply, Mr Hany says the ground is incompetent and ought to be dismissed.

Ground Three: Error of fact and law in finding that the accident did not happen at all, such finding being against the weight of the evidence

Mr Hany submits the Senior Arbitrator did not make a finding that “the injury did not happen at all”. He refers to the Senior Arbitrator’s reasons at [157] as follows:
“Taking all of the matters set out above into account, I am not satisfied on the balance of probabilities that Mr Baines suffered an injury on 13 May 2012.”
Mr Hany submits that Mr Baines maintains that there should have been different findings. The arguments in support of those “different findings” were the absence of cross-examination, misapplication of Briginshaw and a misunderstanding of what the Senior Arbitrator recorded as matters relevant to her conclusion.”
Mr Hany uses, as an example, the Senior Arbitrator’s reference to the highly unusual circumstances” of the alleged injury. Mr Hany asserts the Senior Arbitrator was “at pains to record the fact that the alleged circumstances … were unusual.”[52] He further refers to her description of the method as “unorthodox”.
[52] Mr Hany’s submissions, [19].
Mr Hany submits that the relevance of this evidence was that it had not found its way into the medical histories prior to the issue of the Statement of Claim in May 2015.
Mr Hany says again that this ground of appeal and submissions do not identify any error. Mr Hany says that there was no application to cross-examine during the arbitration and whatever occurred during the conciliation phase is irrelevant.
Further, Mr Hany identifies that there is an inconsistency between this ground, where he complains his counsel was not warned that the Briginshaw principles would be applied. and Ground Two which alleges the Senior Arbitrator did not apply those principles.

Ground Four: Error of law and discretion in making an adverse finding as to Mr Baines’ credit, which was against the weight of the evidence

Mr Hany submits that this ground is merely a reiteration of Ground Three and makes no further submissions.

Ground Five: Error of law in finding against the credit of Mr Baines in the light of the respondent’s concessions, which were made to obviate the need for cross-examination of Mr Baines

Again, Mr Hany submits this ground is merely a re-statement of Ground Four and makes no further submissions.

Ground Six: Error of fact and law in finding that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act

Mr Hany submits that despite Mr Baines having described himself in documentation as a self-employed contractor, in these proceedings he did not plead that he was a “deemed worker” pursuant to cl 2 of Sch 1 to the 1998 Act. Additionally, the Senior Arbitrator invited Mr Baines to consider such an argument, but the matter seemed to proceed on the basis that Mr Baines was a worker as defined by s 4 of the 1998 Act. He maintains that was clearly the Senior Arbitrator’s understanding.
Mr Hany refers to the Senior Arbitrator’s reasons at [177] and submits that it is clear from a fair reading of her reasons the word “not” has been inadvertently omitted from the final sentence. The omission does not identify any legal error.
In the event that the question of worker is to be “re-visited”, Mr Hany re-iterates his submissions made at arbitration that Mr Baines is estopped from asserting he is a worker because of his representations and conduct in the District Court proceedings. Mr Hany contends that he has acted to his detriment by making a cross-claim against the public liability insurer in those proceedings.
Further, Mr Hany submits that if the claim were re-visited, the award in his favour should be confirmed on the basis that Mr Baines has failed to overcome the procedural hurdles he faces because of his late notice of injury and late claim.

The Nominal Insurer’s submissions

The Nominal Insurer generally submits that the decision is not affected by any error of fact, law or discretion.
On the basis that it took no issue at arbitration with respect to whether Mr Baines had suffered an injury, the Nominal Insurer makes no submissions on appeal in response to grounds two to five on the assumption that they do not go to the issue of “worker” or “deemed worker”.

Ground One: Error of fact, law or discretion by failing to support an application to cross-examine

The Nominal Insurer expresses doubt as to whether this ground is relevant to the issue of “worker” or “deemed worker”, but in any event, submits that it is misconceived.
It refers to the discussion between counsel for Mr Hany and Mr Baines in the conciliation phase, and the agreement reached which formed the basis of the decision not to cross-examine. In the light of that agreement, it submits that it is immaterial if the Senior Arbitrator pressed both counsel to dispense with cross-examination.
Further, the Nominal Insurer submits there is no unrestricted right to cross-examine in the Commission, referring to the Presidential decision in Aluminium Louvres & Ceilings Pty Ltd v Zheng[53] and the Court of Appeal decision on appeal from that Presidential decision.[54]

Ground Six: Error of fact and law in finding that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act

[53] [2004] NSWWCCPD 26 (Zheng No 1).

[54] Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358 (Zheng No 2).

The Nominal Insurer notes that at [28] of Mr Baines’ submissions on appeal, Mr Baines acknowledges the nature of the relationship between Mr Baines and Mr Hany was “not a clear one” and that previous legal representatives had “formed the view” that there was a contract for services rather than a contract of service.
It submits that the Senior Arbitrator properly applied the relevant caselaw, in particular Hollis and Stevens. It submits that she considered not only the “indicia” but the totality of the relationship between Mr Baines and Mr Hany.
The Nominal Insurer further contends that it is relevant Mr Baines considered himself to be an independent contractor. To consider the interpretation of the parties to the contract as irrelevant would be erroneous. The Nominal Insurer submits that it is relevant that having had the benefit of legal advice, Mr Baines proceeded to bring a claim in the District Court on the basis that he was not either a worker or a deemed worker.
The Nominal Insurer refers to Mr Baines’ submission that Mr Baines worked solely for Mr Hany in the period leading up to the injury. The Nominal Insurer submits that while the duration of the contract might be one indicator, it is not determinative and is one of a number of factors. It submits that while there was potential evidence that could have assisted Mr Baines, there was also evidence that supported the opposite conclusion.
The Nominal Insurer submits that the Senior Arbitrator looked at the totality of the relationship and found it not to be consistent with a contract of service.
The Nominal Insurer further submits that the Senior Arbitrator noted that Mr Baines held himself out to perform contract work for other people. On that basis, she determined that Mr Baines was not a “deemed worker”. The Nominal Insurer says that the duration of the contract is not a relevant consideration to be taken into account for the purposes of the deeming provision.
The Nominal Insurer notes the Senior Arbitrator’s expression of the relationship as “exclusive” at [177] of her reasons and submits, when read in context is an obvious drafting error and was intended to be “not exclusive.”
Finally, the Nominal Insurer submits that Mr Baines has identified no error of fact, law or discretion in her determination of the “worker” issue. It contends that Mr Baines is seeking a re-determination and the appeal should be dismissed.

DISCUSSION

An appeal to a Presidential member from a decision of an Arbitrator is limited to a determination of whether the decision was or was not affected by error of fact, law or discretion and to the correction of the error. The appeal is not a review or a new hearing.[55]
[55] Section 352(5) of the 1998 Act.
In order for Mr Baines to succeed on this appeal, he must identify such error. It is not sufficient if he merely asserts that the decision is wrong.
Many of the submissions made on his behalf reiterate that the failure to adduce evidence and cross-examine has lead the Arbitrator to error in her decision-making process. Many of the grounds of appeal also refer to the application of the rule in Browne v Dunn and the principles established in Briginshaw.
It is convenient to deal with the authorities relevant to cross-examination and the rule in Browne v Dunn in the context of procedure in the Commission generally, before proceeding to a consideration of each of the grounds of appeal.

Cross-examination and the rule in Browne v Dunn

It is well settled that where documentary evidence is adduced in proceedings in the Commission it is open to the Arbitrator to determine issues of credit without the necessity to hear oral evidence or hear and observe evidence by cross-examination and the rule in Browne v Dunn does not apply.
A court is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence.
In West v Mead,[56] Campbell J (as his Honour then was) observed:
“Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness’s account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness’ account is not challenged in cross-examination.”
[56] [2003] NSWSC 161 (West), [97].
As it is relevant to proceedings in the Commission, Campbell JA in New South Wales Police Force v Winter[57] applied the following passage from his decision in West:
“The consequence of these decisions is that the circumstances in which Browne v Dunn will require a matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.”

[57] [2011] NSWCA 330; 10 DDCR 69, [81].

Of further relevance to procedure in the Commission, in the decision of the Court of Appeal in Zheng No 2 Bryson JA said:
“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way.”[58]
[58] Zheng No 2, [25].
In the Presidential decision in Zheng No 1, Fleming DP said:
“There is no general law ‘right’ to cross-examination in civil proceedings in a court (GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) [1990] 20 NSWLR [sic, 15]), and clearly no ‘right’ exists in relation to the Commission, which is solely governed by the provisions of the statute. Procedural fairness, in the context of Commission proceedings, does not demand that a party be afforded an unrestricted right of cross-examination in relation to evidence given at an arbitration hearing. To suggest otherwise would be to deny the broad provisions of section 354 of the 1998 Act any meaning or effect, and to force a Commission Arbitrator to conduct arbitration proceedings in the adversarial style of the traditional courts. This was clearly not the intention of the legislature in the establishment of the Commission.”[59]
[59] Zheng No 1, [29].
The above reasoning was confirmed in the appeal from the Deputy President’s decision in Zheng No 1 to the Court of Appeal in Zheng No 2.[60]
[60] Zheng No 2, [37].
In Quadi v The Reject Shop (Aust) Pty Ltd,[61] Roche DP provided a helpful consideration of the relevant authorities and said that in procedures before the Commission the rule in Browne v Dunn “does not require that matters about which notice has already been given be put in cross-examination”[62] in the Commission.
[61] [2008] NSWWCCPD 3 (Quadi).
[62] Quadi, [56].
The rule in Browne v Dunn is not a rule of evidence but is a procedural rule to protect the concept of affording the parties procedural fairness.[63]
[63] Quadi, [56].
The authorities referred to above are relevant to a determination of this appeal. The principles as applicable to each ground are dealt with below.

Ground One: Error of fact, law or discretion by failing to support an application to cross-examine

It is evident from the transcript of proceedings, the Senior Arbitrator’s reasons and the submissions of the parties that when the matter proceeded to arbitration, Mr Baines’ counsel made no application to call evidence-in-chief from Mr Baines, or make application to cross-examine Mr Hany. Consequently, the only discussion that was recorded was that noted by the Senior Arbitrator with respect to “procedural matters” in her reasons at [7], the substance of which is recorded at [99]–[101] above.
Mr Baines’ complaint is that the Senior Arbitrator “strongly pressed both Counsel not to seek to cross-examine”.[64]
[64] Mr Baines’ submissions, [5(d)].
Such a complaint does not constitute an error of either fact law or discretion arising from the decision of the Senior Arbitrator.
Mr Baines submits that the Senior Arbitrator ought to have given a warning that the “Briginshaw test” was to be applied. He does not enlighten the Commission as to how the Arbitrator was obliged to give such a warning, what the warning ought to consist of, or the principle from that authority to which he was referring.
In any event, the Senior Arbitrator expressed that she decided the matter on the balance of probabilities, which is the appropriate standard.[65]
[65] Reasons, [157] and [177]–[178].
Mr Baines submits that for those reasons he was entitled to consider that he did not need to establish that the injury happened “at all”. He does not explain the reference to “at all”. It may be a submission that there is a difference between establishing injury at any time rather than on a particular day.
Injury was clearly put in issue by the Nominal Insurer’s s 74 notice, the letter from Mr Hany’s solicitor dated 21 September 2016 and the Reply filed by Mr Hany. It was therefore incumbent upon Mr Baines to establish that he suffered injury as described and at the time nominated.
The decision not to lead evidence or cross-examine was a forensic decision made by Mr Baines’ counsel during the arbitration. A party must live with the consequences of its own forensic choices.[66]
[66] Caruana v Darouti [2014] NSWCA 85, [124].
Mr Baines is not entitled to bring an objection to a determination by the Senior Arbitrator on the ground that she had used her best endeavours to bring the parties to agreement on some or all issues before her.[67]
[67] Section 355(2) of the 1998 Act.
For all of the above reasons, this ground of appeal fails.

Ground Two: Error of law by not applying the principles in Briginshaw

Mr Baines asserts the Senior Arbitrator did not apply the principles set out in Briginshaw without any discussion of that case or identifying the principle. This ground is entirely at odds with Mr Baines’ argument at [225] above.
His submissions seem to state that that case is authority for the proposition that the evidence must be tested by cross-examination before the Senior Arbitrator could accept or reject it.
That argument is rejected. It is abundantly clear from the authorities cited above at [214]–[220] that in proceedings before the Commission, the Commission may accept or reject evidence that is untested by cross-examination.
All that Briginshaw requires is that the decision maker feels an “actual persuasion” of the existence of a fact before the fact can be found. That is the civil standard.[68]
[68] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44]–[49].
Mr Baines refers to the evidence of Mr Hany as having been brought at a very late stage. If that submission is that Mr Baines was surprised or prejudiced by the evidence, it seems somewhat surprising that he did not attempt to respond to it in statement form in the intervening three weeks before the matter came to arbitration, or that he did not raise any objection to that evidence at the arbitration.
Mr Baines has not demonstrated any error of fact, law or discretion with respect to this ground and this ground fails.

Ground Three: Error of fact and law in finding that the accident did not happen at all, such finding being against the weight of the evidence

Mr Baines asserts that the Senior Arbitrator’s decision was underpinned by a series of perceived deficiencies which led to her overall conclusion that the injury was implausible.
He contends that each piece of the evidence should have been “the subject of different findings” and accordingly would have supported Mr Baines’ claim. This submission does not identify error – it merely states a preferred outcome.
Mr Baines submits that the findings that flowed from consideration of that evidence (summarised at [148]–[149] above) were all flawed, unsustainable and ought to be reversed.
Mr Baines relies on the concessions made Mr Hany recorded at [100] above and appears to have formed the view that those concessions advanced his case as to injury. The Senior Arbitrator’s notations of each concession do nothing more than settle what would have otherwise been adduced by oral evidence from Mr Baines. That is, it was the evidence Mr Baines was relying on as to the location and layout of the area of the asserted injury, a picture of what Mr Baines alleged to be marks left by the backhoe bucket on impact, and that the day of injury was a Sunday (Mothers’ day).
It difficult to see how a different result would have been reached by the Senior Arbitrator if Mr Baines had given that evidence orally or Mr Hany had been cross-examined. Mr Baines does not explain how it is that a different outcome would result, or where the error lies other than in a perceived obstruction to cross-examination.
In any event, the Senior Arbitrator was entitled to assess that evidence without it being tested by cross-examination and that discloses no error.
Mr Baines further complains that the Senior Arbitrator did not give proper consideration to the evidence of Mrs Baines and ignored the evidence of Mr Clinton.
The Senior Arbitrator noted the evidence of Mrs Baines at [29]–[30] of her reasons and discussed it in part at [137]. That discussion only referred to the conflict between Mrs Baines’ evidence that Mr Baines told her of a conversation he had with Ms Chalmers. The Senior Arbitrator said that conversation was disputed by Ms Chalmers. The Senior Arbitrator did not consider the balance of Mrs Baines’ evidence, which consisted of Mr Baines reporting the injury and the circumstances to Mrs Baines and Mr Baines’ complaints to her of pain, together with her observations when he attempted to assist her with the shopping. That evidence was unchallenged.

The only consideration of Mr Clinton’s evidence was at [138] of the reasons, where the Senior Arbitrator noted that the statement was not made until October 2017.
Mr Clinton’s evidence was not contradicted by Mr Hany.
The unchallenged evidence of Mrs Baines is material evidence that, if accepted, gives weight to Mr Baines’ having suffered the alleged injury. It is not apparent from the Senior Arbitrator’s reasons whether she took into account that evidence when she weighed up the totality of the evidence before her. If the Senior Arbitrator rejected that evidence, then it was incumbent upon her to provide reasons for that rejection, which she did not.
With respect to Mr Clinton’s statement, the only criticism of that evidence was the Senior Arbitrator’s observation that it was not made until October 2017. The Senior Arbitrator did not take into account that, apart from a blanket denial of injury in his statement of 21 September 2016, Mr Hany did not provide any substantive response to Mr Baines’ claim until 28 September 2017. Further, her consideration did not take into account that Mr Clinton’s evidence was largely uncontested. His evidence was material evidence going to whether or not an injury occurred and Mr Hany’s knowledge of such injury.
There is nothing in her reasons to suggest that the Senior Arbitrator gave proper consideration to Mr Clinton’s evidence in her assessment of the totality of the evidence before her.
The role of a Presidential member is to determine if the decision appealed against is affected by error and, if so, to correct that error.[69] The error must be one that has affected the outcome. Credibility based findings may be overturned if incontrovertible facts or uncontested evidence establish that they were wrong.[70]
[69] Section 352(5) of the 1998 Act.
[70] Fox v Percy [2003] HCA 22; 214 CLR 118, [25]–[28], per Gleeson CJ, Gummow and Kirby JJ.
It may be shown that an Arbitrator was wrong by showing that material facts have been overlooked, or given undue or too little weight.[71] It is open to find an error without being satisfied that a contrary finding was appropriate.[72]
[71] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.
[72] Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277, [17].
The Senior Arbitrator has failed to take into account the above material evidence in her deliberations as to whether the injury occurred as alleged. Her conclusion that the injury did not occur is infected by this failure. On that basis, this appeal ground succeeds and I revoke the Arbitrator’s decision that Mr Baines was not injured as alleged. However, for reasons discussed below, I decline to re-determine the issue and decline to remit the matter for further determination by another Arbitrator.

Ground Four: Error of law and discretion in making an adverse finding as to Mr Baines’ credit, which was against the weight of the evidence

This ground is a separate ground, but is essentially the same argument as made in Ground Three and has been dealt with above.

Ground Five: Error of law in finding against the credit of Mr Baines in the light of the Respondent’s concessions, which were made to obviate the need for cross-examination of Mr Baines

The submissions made in respect of this alleged ground are the same as those made in respect of Grounds Two and Three and are dealt with at [234]–[236] and [242]–[243] above.

Ground Six: Error of fact and law in finding that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act

The Arbitrator’s determination with respect to the issue of injury disposed of the matter before her. It is not clear from the reasons expressed as to whether her deliberations and finding on the issue of worker were intended to form part of the ratio decidendi of her determination that there be an award for the respondents, or whether they are to be regarded as obiter.
Mr Baines has raised the issue on this appeal and both Mr Hany and the Nominal Insurer have made submissions in their defence. Without a consideration of the issue, the question of injury will need to be re-determined either by me or on remittal to a different Arbitrator. A determination confirming the Arbitrator’s decision on the issue of worker would dispose of this appeal and render the remittal fruitless. On that basis, I consider it appropriate to determine the appeal from this ground of appeal.
Mr Baines maintains that it is irrelevant how Mr Baines described himself in other proceedings. He does not rely on any authority with respect to that proposition. He maintains that he was, at the time of the alleged injury a casual worker under the direct employ of Mr Hany. He did not rely on the ‘deemed worker’ provisions. Despite that, the Senior Arbitrator found that Mr Baines was not a ‘deemed worker’ That finding has not been challenged in this appeal.
Mr Baines contends error by the Senior Arbitrator in that she preferred the terms used to describe himself instead of considering the necessary indicia of employment as discussed in Hollis.
The Senior Arbitrator referred to Hollis, On Call Interpreters and Stevens and the relevant indicia that applies to the question of ‘worker’. She proceeded to review Mr Baines’ statement evidence, which she described as “brief and provides little detail about the arrangements between him and Mr Hany.”[73]
[73] Reasons, [165].
The Senior Arbitrator further considered the documentary evidence that was before her. It is clear from her reasons that she took into account:
(a)    the description of himself in the District Court proceedings as a self-employed contractor;
(b)    the Uninsured Liabilities claim form, which included references to Mr Hany as his employer/engager, that he worked as a contractor for varying hours and amounts, that he contracted variously for cash in hand and that he denied being in a trade or business;
(c)    Mr Baines’ statement that he performed occasional work for others, which was mainly unpaid (which infers some of it was paid);
(d)    Mr Hany said Mr Baines had his own tools;
(e)    the “inconsistent” evidence as to whether Mr Baines was obligated to work and whether that work was for a stipulated duration;
(f)    there was no tax paid or superannuation, the money was cash in hand and not recorded, and
(g)    the payment of $400 for treatment, which the Senior Arbitrator said was not determinative of the question of employment.
After a consideration of all of those matters, the Senior Arbitrator concluded at [177] of her reasons that the evidence supported the conclusion that the “real substance of the relationship was that Mr Baines loosely carried on a business as a handyman”. Taking into account the submissions of the parties, the Senior Arbitrator’s reasons as a whole and her ultimate conclusions, it is abundantly clear that the word “not” has been inadvertently omitted from the final sentence of her reasons at [177] and should read “the relationship was not exclusive”.
Mr Baines contends that the lack of obligation to work is equally consistent with a casual employment relationship. It is, however, one of the indicia that the Senior Arbitrator was required to consider in her deliberations, which she did.
I do not accept that Mr Baines’ description of the relationship is irrelevant. The labels used to describe the parties are of little assistance if they “are inconsistent with the real substance or reality of the relationship involved.”[74] While it is not determinative, it is in this case a relevant factor, particularly as Mr Baines, through his legal representatives, described himself as a self- employed contractor who performed work for Mr Hany, if he was not performing work for others. That representation was made in pleadings in a jurisdiction in which his rights were dependent upon him being excluded from the provisions of the 1987 and 1998 Acts.
[74] On Call Interpreters, [246].
In any event, the nature of the relationship between Mr Baines and Mr Hany was carefully considered by the Senior Arbitrator and in accordance with the authorities cited by her.
Those authorities have been discussed in a number of Presidential decisions. The indicia is helpfully set out in the decision of Deputy President Roche in Malivanek v Ring Group Pty Ltd.[75] The factors considered included:
(a)    the control test, and whether there were set times to work;
(b)    whether he was paid an hourly rate as opposed to a set fee, the hourly rate being indicative of an employment relationship;
(c)    the provision of tools;
(d)    deduction of income tax;
(e)    exclusivity of the relationship;
(f)    whether there was an obligation to perform the work, and
(g)    the entitlement to bring others on to the site.
[75] [2014] NSWWCCPD 4.
When applying all of the indicia to the facts in this case, the outcome lends support to the ultimate conclusion reached by the Senior Arbitrator that the evidence before her supported the classification of Mr Baines being an independent contractor rather than a worker.
For these reasons and in the absence of any compelling submission in support of this ground of appeal, I confirm the finding of Senior Arbitrator that Mr Baines was not a ‘worker’ as defined in s 4 of the 1987 Act.

Conclusion

Mr Baines has identified error on the part of the Senior Arbitrator in her determination that Mr Baines was not injured as alleged. There was no error, however, in her finding that Mr Baines was not a worker. The error identified does not affect the result that Mr Baines has no entitlement to compensation under the 1987 Act. I therefore decline to re-determine the issue of injury or remit it for re-determination by another Arbitrator. I also decline to determine the remaining issues raised by Mr Hany with respect to late claim and late notice, and whether Mr Baines is estopped by representation from asserting he is a worker as defined.

DECISION

The finding that Mr Baines was not injured as alleged is revoked.
The finding that Mr Baines was not a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 is confirmed.
The Certificate of Determination dated 29 November 2017 that there be an award for the respondents is confirmed.

Elizabeth Wood

Deputy President

12 April 2018