Batten v Ginevra Nominees Pty Ltd
[2013] VCC 839
•28 June 2013
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised (Not) Restricted Suitable for Publication |
AT WODONGA
CIVIL DIVISION
Case No. CI-12-04723
| WAYNE DAVID BATTEN | Plaintiff |
| v | |
| GINEVRA NOMINEES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 6 & 13 June 2013 | |
DATE OF JUDGMENT: | 28 June 2013 | |
CASE MAY BE CITED AS: | Batten v Ginevra Nominees Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 839 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – serious injury conceded – issue of whether plaintiff is a worker within the meaning of the Act and entitled to compensation or an independent contractor – plaintiff in partnership with family members in farming enterprise – plaintiff also performed some work with his father on defendant’s farm – factors to be considered in relation to whether plaintiff worker or contractor.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr R Morrow | Slater & Gordon |
| For the Defendant | Mr R Middleton SC with Mr R H Stanley | Wisewould Mahony |
HIS HONOUR:
Background
1 This matter comes before me by way of an application pursuant to s134AB(38)(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. Whilst the application was one seeking leave to bring proceedings pursuant to the Act, this was in fact conceded, subject to the central issue to be determined, namely whether the plaintiff is entitled to compensation in respect of the injury suffered pursuant to s134AB(1). To be more specific, the dispute concerns whether the plaintiff, at the time of suffering injury, was a worker within the meaning of the Act or whether he was an independent contractor. The case was fought solely on this issue. If the plaintiff establishes that he is a worker within the meaning of the Act, leave is to be granted to him to bring proceedings.
2 Thus, the matter proceeded more in the style of a cause than of a serious injury application. The plaintiff gave evidence, including the adopting of affidavits, and was cross-examined. Because of the concession in relation to serious injury and the nature of the remaining dispute, I gave leave for there to be considerably greater evidence-in-chief elicited from the plaintiff as opposed to restricting this to the updating of the affidavit material which is normally all that is permitted in serious injury applications. Mr Eric Milano, who effectively managed the defendant’s farm, also gave evidence. Some documentary material, including affidavits, was also tendered either by consent or without opposition.
3 Mr P Jewell SC with Mr R Morrow of counsel appeared on behalf of the plaintiff. Mr R Middleton SC with Mr R H Stanley of counsel appeared on behalf of the defendant, with Mr Stanley in fact presenting the case.
Factual background
4 I would make two points at the outset. Firstly, whilst the facts were not agreed, the area of factual dispute was very limited. Secondly, as one would expect, whilst there were some differences in the recollections of the plaintiff and of Mr Milano as to a few of the events that occurred, both impressed me as honest witnesses who were doing their best to answer questions accurately. Mr Milano is the son-in-law of the late Mr Pasquale Ginevra and Mrs Teresa Ginevra, who, at the relevant time, were effectively the proprietors of the defendant. At that time they were also elderly and unwell, and Mr Milano effectively managed their farming activities.
5 The following are non-controversial facts. The plaintiff is a farmer by occupation. He is 43 years of age. At the relevant time he was still with his now ex-wife, Leanne Maree Batten. He sustained injury to the right knee and leg on 7 February 2002, this happening as a result of a panicking steer running out of control. The precise details of the occurrence of the injury and the treatment thereafter need not concern us.
6 At that time the plaintiff was one of four partners in an entity called “Batten Family Nominees” (“the partnership”). It was not incorporated, despite references from time-to-time during the conduct of the case to it being a company. The undisputed fact is that it was a partnership. The partners were Graham Herbert Batten, being the plaintiff’s father; Alice Mary Lloydie Batten, being the plaintiff’s mother; the plaintiff; and the plaintiff’s wife, Leanne Batten. The partnership agreement was placed in evidence, and is a lengthy document. At the time in question, there were two farms. On one farm lived the plaintiff’s parents. On the other lived the plaintiff and his wife. The arrangement was that, save for some exceptions, income was pooled and what could be described as a dividend or annual income allotment paid to the partners in accordance with the ratio set out in the partnership agreement. There is no argument but that the plaintiff also had some “off farm” income, which was derived from work which he performed essentially away from the farm and in his own right. This was his to keep and did not go into the pool. The nature of it need not concern us, but that it was a separate source of income which did not go into the pool was not contested. Neither is there any dispute but that such work was performed.
7 The bookkeeping for the partnership and in relation to the plaintiff’s “off farm” income was performed by his ex-wife, who apparently possesses some skills in this regard. Exhibit C, which is a quite complex balance sheet or ledger, was prepared by her. An accountant was involved in the ultimate tax returns and the like.
8 The farm run by the plaintiff’s parents was at Greta West, and essentially involved beef cattle. The plaintiff’s farm, which also had cattle on it, was nearby. Adjoining the farm of the plaintiff’s parents, Graham and Alice Batten, was a farming property which had been purchased by Mr Milano. Mr Milano is a Melbourne-based director of a construction company. There is no indication that he had previous farming experience of any great note, and, on his property, the grazing of beef cattle was also carried out.
9 In the early 1990s, the plaintiff was working on the farm where his parents lived. It was at about that time, and nothing of significance hinges upon a precise date, that Mr Milano purchased the adjoining property. Sometime after that Mr Milano approached either the plaintiff’s father, or the plaintiff’s father and the plaintiff together, in relation to someone being able to manage his property and do the general farm maintenance. An agreement was reached.
10 It is important to note that I accept that Mr Milano made it clear in his evidence that he regarded Mr Graham Batten as being a farmer of considerable expertise. Mr Milano’s recollection was that he had spoke and dealt with the plaintiff’s father more than with the plaintiff. In relation to his own property, it also seems apparent that he gave some directions to both Mr Graham Batten and the plaintiff, but also listened to their advice and suggestions. I also accept that both Mr Graham Batten and the plaintiff at times did things on their own initiative. If there was a cow in difficulty, particularly during calving times, or a fence that needed urgent repair, they would do this. They would subsequently report what had happened to Mr Milano. I also accept that at times Mr Milano gave them instructions as to what to do or whether the cost of particular requirements was too great. I accept that he kept in regular contact with the Battens, father and son, and that he discussed with them what they should do in relation to his property. I also accept that he had more contact with Mr Graham Batten than with the plaintiff, but that he did speak to each of them. He came up to Greta West approximately monthly and would discuss such things as whether the fences needed replacement, what should be done on his property and the like.
11 The arrangements for payment were that the partnership would render the defendant a monthly account based upon hours worked, whether by Mr Graham Batten or by the plaintiff, together with a list of out-of-pocket expenses, which might include such things as fencing material, veterinary expenses and the like. Mr Milano would quickly check the contents of the invoices and arrange payment. Mr Milano treated the Battens as being honest and efficient in looking after his property. As a result, there was rarely, if ever, a challenge to the monthly statements. The hours worked by Mr Graham Batten and by the plaintiff were listed separately. Leaving to one side the out-of-pocket expenses to which I have referred, hours worked formed the basis of the calculation of the monthly account.
12 The defendant owned and operated a property approximately 15 minutes drive from the Greta West properties of the Battens and of Mr Milano. There was a house on this property which had been occupied by Mr and Mrs Ginevra. As stated, they were the parents-in-law of Mr Milano. They were not in particularly good health, and this was especially so in relation to Mr Ginevra. Accordingly, they moved from the farm operated by the defendant and returned to Melbourne. This left the farmhouse unoccupied and it remained so. From approximately 2000, Mr Milano effectively took control of the situation whilst still operating the construction company of which he is now the general manager.
13 Prior to the Battens working on the defendant’s property, a neighbour close to that property would have a look at it and perform certain duties. However, a few years after the Battens commenced performing work on Mr Milano’s property (and in about the year 2000), Mr Milano asked them if they would also do work on and effectively caretake the defendant’s farm. Mr Milano believes that the conversation in this regard took place between himself and Mr Graham Batten, but admitted that the plaintiff could also have been present. The plaintiff’s recollection is that it was a three-way discussion carried on at a time when the Battens were working at Mr Milano’s property. His recollection is that Mr Milano asked if the Battens would be willing to take on working at the defendant’s farm and looking after the place, because his parents-in-law were too ill to run it. There had been someone else working there but he had just been put off.
14 The Battens decided that they would be able to do this. There was no written agreement or anything of that nature. Matters simply proceeded on the same basis as for the work that had been done on Mr Milano’s property. There was no difference in the invoicing arrangement. At the end of the month the partnership would forward an invoice, this time to the defendant, setting out on it some details of the work done and overhead expenses paid, together with the number of hours worked by Mr Graham Batten and by the plaintiff. Again, the Battens would seek instructions from Mr Milano in the sense of advising him of things that needed to be done – for example, if a tree had been knocked down and was leaning on a fence. These sort of discussions were usually conducted on the telephone, although Mr Milano continued to come to the area and look at both his own farm and the defendant’s farm on approximately a monthly basis. Mr Milano was of the view that more of the discussions were held with Mr Graham Batten, whom he regarded as a more professional farmer than most, but was unable to say, for example, what proportion of the suggestions made came from Mr Graham Batten and what proportion came from the plaintiff.
15 Whilst the plaintiff gave evidence that – after reaching this agreement, he attended the defendant’s property two or three days a week, depending on what was happening. If, for example, cows were calving, and there were problems, that attendance could be anything up to 10 or 12 hours per day. In addition Mr Milano would tell the plaintiff, if not his father, concerning certain things which he wanted done – see Transcript (hereinafter referred to as “T”) 24 and 99. Mr Milano left it to the Battens as to which of them would perform what work, and claimed that he did not have any involvement in the system that they might use to carry out the task or the hours that they worked.
16 The plaintiff and Mr Milano were not totally in agreement concerning the input which Mr Milano had concerning things to be done at the defendant’s farm, the plaintiff’s recollection being that there were more occasions when Mr Milano rang repeatedly on the same day than was Mr Milano’s recollection. However, this was scarcely a dispute of major significance.
17 The plaintiff stated that there were some occasions when he had rung Mr Milano because he wished to carry out certain work, but was not permitted so to do by Mr Milano. He gave an example of seeking to place in position an underground pipe in order to divert water from a trough to the cattle. At the time there was a problem with the water in a creek. Mr Milano refused him permission to divert the water, and, according to the plaintiff, a number of calves died as a result of this. I might say that this was the only occasion upon which the plaintiff appeared to become somewhat emotional in the witness box. He stated that “I tried to rectify the problem, but Eric was in charge so that’s – that’s what happens” – see T 26 and 27.
18 In cross-examination, Mr Milano agreed with the proposition that the plaintiff did nothing unless he was authorised so to do, except in a case of necessity, for example when an animal was in trouble. His answer to that proposition was “Exactly. I wouldn’t know. When they had to drench animals I wouldn’t have known that, they would do it. They would tell me they need to be done and I’ll say, yes, do it.” – see T 106. He then agreed that there would be occasions when he would make suggestions as to what should be done.
19 Mr Milano agreed that there were times when he might disagree with what was being proposed. He stated that he “probably did” say “no” to the suggestion about putting in a pipeline for fresh water. He also agreed that there could have been other instances when suggestions were made but he had said “no” to them because of costs or because he did not think that what was being suggested was necessary – see T 109.
20 In relation to the invoicing system with the defendant, as stated the same arrangement continued as with the invoices forwarded to Mr Milano in respect of work done at his farm. GST was added. It is also common ground that, in relation to payments made by the defendant, there was no holiday pay, sick pay or the like involved. There was no payment of superannuation, although the plaintiff gave evidence that on one occasion he enquired concerning the availability of superannuation and Mr Milano responded in the negative. The invoices were prepared by the plaintiff’s ex-wife. They were on partnership letterhead. There is no argument but that Mr Milano paid the amounts on behalf of the defendant. When received, these amounts were paid into the partnership pool. Ultimately, a dividend would be paid to the partners, including the plaintiff, from that pool. There is also no argument but that, leaving to one side overhead farming expenses, the amounts paid were on the basis of the hours worked by Mr Graham Batten and the plaintiff and that these were separately calculated.
21 The plaintiff’s ex-wife also prepared a ledger for the partnership. This ledger was placed in evidence. For the 2002 financial year, the amount ascribed to the plaintiff for his earnings at the defendant’s property was $5,232.50. There was a considerably lesser amount shown in the 2001 financial year and zero for the 2000 financial year.
22 There was also no argument but that the plaintiff and his father, when working at the defendant’s property, used some equipment which belonged to it. This equipment included machinery, tractors and the like. Mr Milano also organised for such things as the delivery of materials that might be required, such as fencing.
23 From about 2000 onwards, the plaintiff and his father also engaged in hay baling, having purchased a baler. They did this on various properties, charged a contractor’s rate on the basis of completed bales (although they may have charged by the hour for raking as opposed to the use of the baler), and the income therefrom also went into the partnership pool. Some of the hay baling work was done for Mr Milano, although whether this was on his own property, the defendant’s property or both is not entirely clear. In any event, what is quite clear is that this was a totally different arrangement relating to the use of the baler and was a separate source of income calculated differently. I would refer to T 62-64. As submitted by Mr Jewell in his closing address, the hay baling was a separate division. The arrangement between the plaintiff and the defendant related to stock and farm maintenance. The use of the baler was a minor part of what Mr Jewell described as “the whole exercise” and was quite a separate enterprise – see T 155-156.
24 At some stage, Mr Graham Batten (and possibly the plaintiff, although he was reasonably definite that it was his father who made the arrangement) indicated to Mr Milano that the Battens could not keep up with all the work because of the amount of things that Mr Milano wanted done. As a result, Mr Milano was introduced to Mr Graham Ormond, a farm worker known to the Battens. Apparently Mr Ormond did contract farming work for a number of people. Accordingly, Mr Ormond commenced doing work on the defendant’s property. At least in the early months of Mr Ormond’s involvement, Mr Graham Batten effectively allocated work to Mr Ormond. However, it is not suggested that Mr Ormond was an employee of the partnership, Mr Graham Batten or the plaintiff. There is no dispute but that Mr Ormond invoiced the defendant separately for work performed by him and that he was paid accordingly. It is also common ground that, when, in recent years, the arrangement of the plaintiff and his father with the defendant ended, they were replaced by someone else.
25 It was also stated by the plaintiff that, whilst sometimes in an emergency he or his father would have to get a veterinary surgeon to the defendant’s farm at short notice and without consulting Mr Milano, normally he would be consulted before such a surgeon was organised. His approval would be obtained. The defendant would pay the relevant account.
26 In relation to the circumstances surrounding the injury on 7 February 2002, the plaintiff reported it to Mr Milano and described what had occurred. Mr Milano’s response was to the effect that that was “no good”.
27 One area of at least marginal dispute between the plaintiff and Mr Milano relates to whether or not a WorkCover form of some kind was mailed or otherwise supplied to the plaintiff by Mr Milano or the defendant and as to what happened thereafter. This is of some significance, as the plaintiff’s claim was ultimately accepted by the defendant. Accordingly, in submissions some discussion concerning the applicability of the decision in Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 took place.
28 The sequence of events described by the plaintiff is as follows, and I might say in reality it is only the opening portion of this account that seems to be disputed. The plaintiff gave evidence that there was a form either handed, or more likely sent through the mail, by Mr Milano or the defendant. The plaintiff was advised by his wife that he could not sign it because, as I understand it, the impression given, perhaps because of the defendant’s address, was that this was something that was “run through the business down in Melbourne”. The plaintiff went on that he was advised that: “…because I was, I’m working on the farm up here and it’s not related, wasn’t related to Melbourne, that I couldn’t sign the document, I’d be signing an illegal document, so I didn’t sign them” – see T 32.
29 In cross-examination, the plaintiff stated that he was “pretty sure” that the form was sent in the mail and that it was his then wife who got the mail, opened the letter and read it. However, he said that he did not see the document. His wife had told him that Mr Milano had sent up WorkCover forms, but he would not be able to sign them because it was run through a business in Melbourne but the plaintiff was working on the farm at Oxley – see T 78 and following. He also stated that he was “pretty sure” that his ex-wife did talk to someone in Mr Milano’s office, or to Mr Milano himself, concerning this.
30 The plaintiff subsequently returned to work. He agreed that he had no discussions with Mr Milano concerning any claim form for WorkCover. His wife was dealing with such things – see T 80. He paid all medical expenses out of his own pocket, including those associated with an osteotomy, but was ultimately reimbursed. In fact, the plaintiff had two arthroscopies and, in 2009, the osteotomy. In relation to the osteotomy, the plaintiff told Mr Milano that he was going to be in hospital for a lengthy period and would be in a wheelchair. He claims that he did ask Mr Milano whether he would pay him for those months, but Mr Milano “pretty much just laughed, so, it never went any further” – see T 33. The plaintiff also said that he simply did not realise that his knee was going to be as bad as it turned out to be.
31 In March 2010, the plaintiff lodged a WorkCover claim seeking statutory benefits. In July 2011 he lodged a claim seeking an impairment benefit. In each instance the date of injury shown was 7 February 2002 and the present defendant was nominated as the employer. On 8 June 2010, Gallagher Bassett Services Workers Compensation Vic Pty Ltd informed the defendant that it was accepting the plaintiff’s claim for weekly payments. Gallagher Bassett is an agent of the Victorian WorkCover Authority and handled these particular claims on behalf of he defendant. On 2 May 2012, Gallagher Bassett accepted liability in respect of the plaintiff’s claim for an impairment benefit in respect of his right knee. A lump sum benefit was subsequently paid.
32 By letter dated 6 May 2013, not long before the callover in which this matter was fixed by hearing, Gallagher Bassett informed the plaintiff that he was no longer entitled to weekly payments or to medical and like expenses. It is quite apparent from the reasons contained in the letter that Gallagher Bassett had formed the view that the plaintiff was not an employee of the defendant on the basis of the advice provided by Wisewould Mahony, the defendant’s solicitors in this matter. It is clear that the reasons contained in the letter of 6 May 2013 arise from information provided by Wisewould Mahony. In his closing address, Mr Jewell asserted that the acceptance of the claim was “fairly powerful evidence in favour of the plaintiff’s case”. The grounds set out in support of the termination were criticised by Mr Jewell. The ground that the plaintiff had autonomy over the hours and duties performed was, allegedly, inherent in the nature of the engagement. The fact that direction was given by Mr Graham Batten when necessary and not by the manager of the property was, in the submission of Mr Jewell, not borne out by the evidence. The directions were given by the defendant. The third ground, namely that evidence of earnings indicated that the plaintiff was an independent contractor, was, in the submission of Mr Jewell, a conclusion rather than an observation of fact. In essence, Mr Jewell was submitting that there was no new material that had been made available which would justify the change of mind and the termination of benefits.
33 In an endeavour to “satisfactorily explain its conduct”, to employ the wording of Ashley JA in Ansett, the defendant filed and served an affidavit by Mr Peter White, Senior Legal Manager of Gallagher Bassett. Essentially, Mr White has sworn that, at the time liability was accepted, Gallagher Bassett did not have access to a full complement of the plaintiff’s financial documents. The affidavit also states that, “The purported employer was unavailable and did not provide a statement at the time”. Mr Jewell submitted that the fact that the plaintiff received weekly payments of compensation after the osteotomy at a set rate leads to the inescapable conclusion that Gallagher Bassett must have had some evidentiary basis on which to fix the rate. He argued that it created a very strong inference that Gallagher Bassett was in possession of the relevant invoices. Nothing has emerged in the records since which show otherwise. It is clear, submitted Mr Jewell, that Gallagher Bassett advised the defendant of its acceptance of liability. It is also clear that the solicitors for the plaintiff wrote to the defendant on 29 April 2010 enclosing a WorkCover claim for compensation pursuant to s99 of the Act. It seems apparent that the defendant simply remained silent and did nothing. In the submission of Mr Jewell, this made the admission of liability all the more powerful and the basis for resiling from it all the more feeble. In relation to this issue of the acceptance of liability and the lodgement of documents, Mr Milano gave oral evidence that he and his company (a sizeable construction company) had a WorkCover co-ordinator, who seems to have been an independent agent to whom Mr Milano or his staff referred all matters to do with WorkCover. He did not believe that there was any documentation on the file of that agent prior to the lodging of the plaintiff’s claim in 2010. He agreed that the defendant would have had WorkCover insurance covering employees in 2002 and said that this was more or less as a precaution even though the defendant had no employees. Apparently this independent agent, who also works for other employers, co-ordinates return to work plans, sends people to doctors and the like.
34 Mr Milano was shown the letter of 8 June 2010 advising the defendant that liability had been accepted (Exhibit D). He stated that he would not necessarily have seen such letter because it would have been passed on to the co-ordinator, although he now understood it to be a letter accepting liability. He was not aware of any correspondence responding to the letter. He was also uncertain as to a letter from Gallagher Bassett addressed to his wife, care of the defendant, and said that he had not seen it before nor been told about it by his wife. He agreed that the address of the defendant was the same as that of his company.
35 In re-examination Mr Milano stated that he had never before seen the letter accepting the plaintiff’s claim.
36 The above represents a summary of the facts in this matter, including some discussion of the legal aspects of the acceptance of liability. Whilst, as stated, I regard both the plaintiff and Mr Milano as being witnesses of truth, in the few areas where there is any dispute I prefer the evidence of the plaintiff in that he was present during relevant discussions, actually performed the work and was familiar with what occurred. He also has some familiarity with the operation of the partnership agreement and its operation.
37 I would also repeat that the plaintiff made it clear that he had “off farm” earnings for various activities which he performed and that the income from these was his and did not go into the partnership pool.
The submissions on behalf of the parties
38 I shall deal with these in the order in which they were presented.
(a) The case on behalf of the defendant
39 The submissions of Mr Stanley on behalf of the defendant could be summarised as follows.
40 The plaintiff earned income from a variety of sources, including “off farm” income. The predominance of income was “on farm”, or emanating from the family partnership. He could derive a salary, additional dividends, and had the benefit of his house, the expenses of which were provided by the partnership. The partnership was a large enterprise which operated two cattle properties and also engaged in hay baling and silage. That partnership also derived benefit from the services of the plaintiff and his father on neighbouring properties. During the course of his work with the defendant, the plaintiff operated as a representative of the partnership. He was striving for the betterment of that enterprise both for his own financial reward and for that of the other members of his family. They are so in relation to work on the neighbouring properties, but also on his own property.
41 In considering whether the plaintiff was an employee or a contractor, the totality of the relationship must be considered. Reference was made to the decision of the High Court in Hollis v Vabu Pty Ltd [2001] HCA 44. The structure in which the plaintiff was working was important, as is the fundamental difference between a person who serves his employer in the employer’s business, and a person who carries on trade or business of his own. Reference is also made to the decision of Marshall v Whittaker’s Building Supply Co [1963] HCA 26.
42 In the present case, the plaintiff performed work on neighbouring properties for his own trade or business and for the benefit of the partnership. Reference is made to Colonial Mutual Life Assurance Society v Producers & Citizens Co-Operative Assurance of Australia Ltd (1931) 46 CLR 41. In the present case, the plaintiff was carrying on business for the partnership.
43 In relation to factors to be considered, reference is made to Elazac Pty Ltd v Shirreff [2011] VSCA 405. A list of such factors is set out in the Judgment of the Court at paragraph 30. In relation to that list, matters such as income tax, superannuation and the like are important.
44 Considering the list of factors, the plaintiff in the present case could set his own hours of work. These were quite variable. The hours of work fitted in with activities on the partnership farms. In relation to the method of payment, it was the partnership, and not the plaintiff, that was the recipient of payments. The partnership was paid and the pool was disbursed not in accordance with the hours worked but based upon the overall annual performance of the farms and the like. The absence of income, holiday pay, long service leave and the like is also not controversial. Further, it is uncontroversial that the plaintiff conducted his business in a partnership. The plaintiff had power to delegate work to his father, just as his father could delegate work to him. Mr Milano did not determine who did what work, and the plaintiff and his father could delegate to each other. They could also delegate work to Mr Ormond when he commenced work. It is clear that Mr Ormond was directed as to what to do by the plaintiff and his father. However, the clearest example of delegation was that between the plaintiff and his father.
45 The plaintiff drew a strong distinction between on farm activity and off farm activity, with the off farm earnings coming directly to him, as compared to the on farm earnings going into the pool to be distributed through the partnership. The plaintiff well-knew and understood this distinction. He also would have known this at the time that he entered into the arrangement with the defendant. But for this case, the plaintiff would have considered himself to be an independent contractor like Mr Ormond.
46 Control remains an important factor, even if it is clearly no longer the exclusive one. The control exerted by Mr Milano was minimal. The defendant’s farm was unoccupied. Mr Milano would make phone calls and attend about once a month. He relied upon the experience of both the plaintiff and Mr Graham Batten.
47 The relationship was casual, bearing no resemblance to that of an employer and employee. There were no expected hours of work or time limits generally attached to duties. It depended on what was going on at his own property. There was not control of the nature one would find in an employer/employee relationship, and that extended to who was to do the work. Similarly, Mr Milano had no role in dictating the system of work to be carried out by the plaintiff or his father. The plaintiff had the right to reject work if he was too busy. The test of control favours the defendant. The skill and expertise of the plaintiff is also a factor. Further, the relationship had only been in existence for a short period prior to the accident.
48 While some equipment was provided by the defendant, this was more as a matter of convenience, as the farm was some 15 minutes drive from the plaintiff’s property. It was not an indicator of control. In addition, it would not seem from the invoices that any expenses had been deducted or added. In short, many of the factors listed in Elazac support the defendant’s position, namely that the plaintiff was working as an independent contractor for the benefit of his own enterprise, that being his share of the partnership.
49 In relation to the acceptance of the claim, this was made in error. The claim form indicated that the plaintiff was an employee working between 25-50 hours per week. Neither of these matters were correct. A confusion was created which led to the ultimate acceptance of the claim. The present case is a much different situation to that in Ansett v Taylor. Whilst the present application has a serious injury component, that is not the subject of this dispute. The question of whether the plaintiff is a worker within the meaning of the Act is a jurisdictional question which requires an evidentiary analysis involving the law. It is a different scenario from that relating to causation of an injury. An admission which might be wrong at law in relation to jurisdiction should not prevail simply because of an agent’s ignorance or confusion.
50 There is no supporting evidence from the plaintiff’s father or his former wife, both of whom are integral to the arrangement, the income and the like. (At this point I interrupted Mr Stanley in order to suggest that most of the evidence was not controversial. He essentially agreed with this in relation to inferences to be drawn from the absence of the evidence under discussion.) However, evidence from the plaintiff’s former wife as to the receipt of the WorkCover claim form might have been thought to assist him in relation to that controversial issue, and an inference should be drawn in relation to her failure to provide any evidence. This also applies to his paying for his own medical and like expenses over the years.
51 In relation to the acceptance of liability, reliance is placed on the affidavit of Mr Peter White, Senior Legal Manager of Gallagher Bassett, which contains some explanation as to why the agent accepted liability. This goes someway towards providing a satisfactory explanation of the conduct of Gallagher Bassett. However, the defendant’s essential submission is that Ansett v Taylor has little relevance to this particular case.
52 The plaintiff paid his own medical bills for some eight or nine years because he realised that he was not an employee. He structured his affairs in relation to the partnership and the like so that he could derive optimum benefit from this business enterprise. It is therefore not fair for him to be able to leap over this and assert that he is an employee. Reference is made to the decision of the Full Court of the Supreme Court of Victoria in Barro Group Pty Ltd v Fraser & Anor [1985] VLR 577. The plaintiff was working for the benefit of his enterprise, namely the partnership, whether he was working at the defendant’s property, on his own property or hay baling. The ultimate amount which he was paid bore no relationship to the hours that he actually worked for the defendant. The fact that the total amount paid to the partnership was calculated on the basis of hours worked is only a small finding in the plaintiff’s favour. This is particularly so when it is appreciated that the payment is made by a tax invoice which includes GST and which includes ABN numbers of members of the family.
(b) The case on behalf of the plaintiff
53 The submissions of Mr Jewell on behalf of the plaintiff could be summarised as follows.
54 The task facing the Court is an objective exercise in balancing all the various considerations to be taken into account and arriving at a decision attributing weight to the various indicia. Many of these factors may be equivocal.
55 In relation to control, the key element is the right to exercise control. Whilst this is not determinative and can be a factor which can point either way, in the present case the right to exercise control is a persuasive pointer to an employer/employee relationship. It is common ground that work done at the defendant’s property had either the express or implied imprimatur of the defendant through the agency of Mr Milano. Things were done or not done according to that approval. Mr Milano had the right to veto proposals. He had the right to approve and direct respectively or prospectively. Examples of his power of veto arose in the evidence, including that of the proposed piping of fresh water. The nature of the contract entered into was such that the right to exercise control rested with Mr Milano. The existence of a particular or greater farming expertise on the part of the plaintiff and his father does not provide any great support for a conclusion that they were independent contractors – see paragraph 31 of Elazac. The element of control favours the plaintiff.
56 A principal reason why the worker failed in Elazac was that he had the power to, and did in fact, employ others. Where an individual has such power and does exercise it by employing somebody else to help do the work, this is a very decisive factor against being an employee. In the present case, the plaintiff did not engage another to perform the work. Mr Ormond was only engaged with the prior approval of Mr Milano, and was not engaged by the plaintiff. Mr Ormond billed the defendant separately. He was not an employee of the plaintiff or his father. He was simply a relevant person who could assist. Suggesting that another person might be put on to help with particular tasks is a long way from an employee himself engaging and employing that third party.
57 Reference is made to the decision of the Court of Appeal in Victorian WorkCover Authority & Anor v Game [2007] VSCA 86. In that case, the Court made observations to the effect that once a bargain is struck for payments at an hourly rate, how that payment is directed thereafter is to some degree irrelevant to the question of whether the relationship is one of employer and employee. It is secondary to determining whether or not such a relationship exists in the first place.
58 In the present case what has been supplied is the plaintiff’s labour. It is not the supply of equipment, responsibility for that being with the defendant. The hay baling enterprise was in a separate category and was charged at a per bale rate – that is, a contractor’s rate. In other words, the hay baling was a separate enterprise and was so treated by the parties.
59 In relation to hours worked, the nature of the engagement did not require identified or regular hours of work. The plaintiff was akin to a casual employee who does not have set hours, but who is on-call. It was only after the work was done that the hours could be charged out. The existence of some flexibility as to when the work was performed is not inconsistent with the relationship of an employer and employee, particularly in an “on-call” situation. It was implicit that the work would be done within a reasonable time, and there was no complaint that it was not so done. Set hours of work is not an important factor. What is important is the availability to do the work as and when required.
60 Payment of an hourly basis is a very strong indicator of employer/employee relationship. That is what occurred here. There were no conditions in relation to production of a result.
61 The plaintiff and Mr Graham Batten were, in effect, joint employees. Arguments concerning joint delegation between the plaintiff and his father are not really valid. What is contemplated in terms of delegation is the employment of a third party to do the work without the necessity of gaining approval. If, as in the present situation, the plaintiff and his father are joint employees, it does not matter whether one works more hours per week than the other.
62 In relation to the belief of the individual, which is a difficult concept, the evidence in the present case is that the plaintiff regarded himself as an employee. He has stated that in the affidavit material, and was never challenged in relation to it. Despite what was said in Elazac, a subjective idea as to the nature of the relationship may be irrelevant. In Hollis, the High Court made the point that a subjective classification as to relationship is to be ignored. In any event, in Elazac the plaintiff agreed that he had never been employed by the defendant or anyone else. Nevertheless, the turning point in that case was that the plaintiff had employed somebody else and paid that person to do part of the work that was required.
63 Another factor that points in the direction of the plaintiff being an employee is the regular communication between Mr Milano and the Battens. There was a close degree of direction, instruction and monitoring of the work on the defendant’s property. Again, this points towards an employer/employee relationship. The plaintiff was not left alone until completion of the job took place. Rather, he was at the defendant’s beck and call, via Mr Milano.
64 The acceptance of the claim by the defendant is powerful evidence in favour of the plaintiff’s case. It is an admission against interest, enhanced by its depth and longevity. The claim was accepted in 2010, accepted in a backdated fashion, and remained in place until 6 May 2013. When the entitlement to benefits was then terminated, it was on the basis of the view of a solicitor. However, when the grounds are examined, the evidence does not really bear out the reasons for termination. The duties performed always had to be performed with the approval, implicit or expressed, of the defendant and the hours during which the work was performed was a factor that was inherent in the nature of the engagement. Directions given by the defendant were the basis of the engagement, although the allocation of work allowed for some discussion between Mr Graham Batten and the plaintiff. That does not matter.
65 When the affidavit of Mr White is considered, no sound reason for resiling from the admission is demonstrated. The fact that the plaintiff and his father undertook farming work on behalf of the partnership takes matters nowhere. A statement in the affidavit that, at the time that the claim was accepted by the agent, the agent was unaware of any relationship between the plaintiff and the defendant is effectively meaningless. A reference to the trustee of a family trust takes matters nowhere. There is no basis for the conclusion that there was a trust, and, even if there was, that takes matters no further. The allegation that both the plaintiff and his father worked on a part-time casual basis for the defendant is probably accurate. There was also a statement that, at the relevant time, the agent did not have access to a full complement of the plaintiff’s financial documents, including invoices. However, it is clear that the invoices were in the possession of the defendant. In addition, the agent must have had some evidentiary basis on which to fix the amount of weekly payments of compensation and the arrears. Records subsequently produced can hardly be said to create doubt as to the employment situation. The fact that the defendant was unavailable and did not provide a statement presumably relates to a Circumstances Investigation Report, but otherwise takes matters no further.
66 None of this is a justification for a change of mind. Reference is made to the direct correspondence from Gallagher Bassett to the plaintiff and to the defendant. What seems to have occurred is that the employer has simply remained silent in relation to communications with it. It does not behove an employer to now say that it was ignorant in relation to all of this, and therefore did nothing, and so the validity of the admission is reduced. In fact, if the employer did nothing and the agents acted upon the fact that the employer did nothing, the admission is all the more powerful, and the basis for resiling from it is correspondingly weakened. There seems to have been no greater investigation in relation to the claim for impairment benefits, which was also accepted. What seems to have brought about the change of heart has been a solicitor’s view of the circumstances of the case. This does not justify a change of opinion in relation to an already accepted claim.
67 Further, the notice terminating benefits refers to the partnership as being a company. If the plaintiff had been employed by a company, the case against him would be totally different. That is not the case. It seems that the agent changed its position based upon a totally incorrect appreciation of the circumstances. Further, suggestions that the plaintiff had complete control over the hours which he worked does not paint a true picture. It does not correspond with the nature of the engagement. It is also not correct that the plaintiff was subject to the direction of his father. The evidence does not disclose that. Again, in relation to payment, reference was made to this coming to the plaintiff from a company.
68 In summary, the agent learnt nothing new prior to it terminating benefits. It simply had advice from its solicitors. Hence, the acceptance of the claim is a strong factor, and nothing new has been learnt by the agent when compared with what it knew at the time of acceptance of the claim. Reference is again made to Ansett v Taylor. Ashley JA stated in Ansett that acceptance of a claim bespoke acceptance of the compensability of injury. That is appropriate in the present case.
69 In short, the plaintiff was performing the defendant’s business for its benefit at its place on a regular basis, on request, and over a period, at an hourly rate of remuneration. It was in addition to the work being performed by the partnership on its own farms.
70 Factors against the existence of an employer/employee relationship include such things as the absence of superannuation, holiday pay, the payment of GST and the like, but these are not conclusive. The more persuasive weight is in the opposite direction. Whilst there was a partnership, an employee such as the plaintiff may direct how his remuneration is paid. The inescapable conclusion is that the amount paid was arrived at by reference to the work performed by the plaintiff calculated at an hourly rate.
71 In Game, the deceased worker was a member of a partnership. The partners were paid at an hourly rate. The deceased and his colleagues worked in accordance with plans provided by a builder and were essentially unsupervised. Some had their own equipment and some had the builder’s equipment. The Court of Appeal emphasised that the test to be applied was objective. Emphasis was placed on the singular nature of the engagement. The fact that work was done by a partnership was not conclusive. That did not affect the characterisation of the legal relationship. All it meant was that the partnership affected the legal relations between the partners, such that they divided the remuneration equally and were not employees of each other.
72 In the present case, the fact that there was a partnership behind the scenes does not negate the fact that payment was made on the basis of the plaintiff’s hourly work. Despite such matters as the payment of GST, the non-deduction of income tax and like matters, on balance the various factors point towards the fact that the plaintiff was an employee and thus a worker within the meaning of the Act. The overall conclusion comes from a weighing of the varying indicia, which indicate what the relationship was. In the present case the plaintiff was an employee, albeit something of a casual employee, engaged by the defendant to work as and when required at an hourly rate.
Ruling
73 In this interesting case, in which I was greatly assisted by careful and well-presented submissions by counsel, I have arrived at the following conclusion. I am satisfied that the plaintiff was a worker within the meaning of the Act at the time of the occurrence of the injury and thus, for the purposes of s134AB(1), is entitled to compensation. I have arrived at that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) Consideration of the various factors set out in Elazac, and bearing in mind what was said in Hollis, leads me to the conclusion that the plaintiff was a worker within the meaning of the Act and therefore entitled to compensation. The satisfaction of this pre-requisite opens the door to an application pursuant to s134AB(1).
(b) The fact that the plaintiff was in partnership may be relevant as being part of one of the indications set out in Elazac. However, it is far from conclusive. It has long been acknowledged in compensation and like law that a person may be in partnership, but nevertheless be a worker within the meaning of the relevant legislation. I would refer, for example, to the discussion in Game at paragraph 35 as follows:
“Those findings, in my opinion, permitted a conclusion that Mr Game was working under a contract of service when he was injured. It was not decisive against such a conclusion that at the critical time that he was contemporaneously a member of a partnership, or that payment for the trenching work was made to the partnership…”
And at paragraph 58 as follows:
“There is no doubt, at the time Mr Game sustained his fatal injuries, that there was a subsisting partnership. If the partnership, qua partnership, had contracted to do the footings work, it would have been very relevant to the question whether, when injured, Mr Game was working under a contract of service with Rankin. On the other hand, the existence of the partnership did not mean that Mr Game and his colleagues could not have entered into contracts of service with Rankin as individuals in respect to the footings job. Nor did it necessarily follow, assuming that Mr Game negotiated the arrangement, that Rankin contracted with the partnership rather than that it entered into a separate contract of service with each man. Further, that Mr Game did enter into an individual contract of service, he was not precluded from agreeing with his partners that his earnings should be credited to the partnership account.”
(c) Further, there are some parallels between the present situation and that in Barnes v Dawson [1962] NSWR 73. The appellant Barnes, who was in partnership with his son, sustained injury whilst he, his son and an employee of the partnership were engaged in branding and marking calves for the respondent. The respondent Dawson and two of his employees also took part in this operation. Barnes and his son undertook all kinds of work on station properties in the district and charged by the day, an amount per day per man. They also provided their own equipment. The Full Court of the Supreme Court of New South Wales observed that, in working in that fashion, Barnes would probably be held to be a contractor and not working under a contract of service. It is to be noted that the partnership had an employee, that the partners worked on various properties in the district and provided their own equipment, including a caravan in which to live, a grader, a post hole digging machine, a tractor, a truck and sundry tools. The daily rate charged varied if the vehicles were not used, but also was the subject of adjustment if food was provided by the property owner.
Barnes, his son and the employee had been repairing a fence for Dawson when Barnes was asked if he could help in the branding of calves. No details were discussed. As stated, Barnes, his son (his partner) and the employee were assisting in the marking and branding of the calves when a yielding calf fell heavily on Barnes’ leg and he suffered the injury in question. Dawson issued instructions or directions as to the carrying out of the work, these being limited as all concerned were men who lived and worked in the country. Those involved in fact worked as a team. Payment was made on the usual basis, namely so much per day, per man. Much of the Judgment concerned itself with the issue of control, it being said that the fact that the people involved in the work being carried out were all experienced in rural matters and required little direction was not the deciding factor. Emphasis was placed upon the lawful authority to command. Reference was made to the test suggested by Denning LJ in Bank Voor Handl en Scheepvaart NV v Slatford [1953] 1 QB 248, namely that the test depends on whether the person is part and parcel of the organisation. Ultimately the Full Court effectively upheld the appeal of Barnes and remitted the case back to the Workers Compensation Commission. What is interesting is that the undisputed fact that Barnes and his son were in partnership seems to have received little or no attention from the Full Court in its consideration of whether a contract of service existed. The existence of the partnership was not stated to be in any way determinative of the question. Its existence did not appear to have been something which would virtually automatically preclude Barnes from being a worker within the meaning of the Act.
(d) In relation to the question of control, I appreciate that this is no longer considered to be the absolute test, but it is still a factor to be considered. The evidence in the present case seems to me to establish that the defendant, via Mr Milano, had the authority to issue commands to the plaintiff insofar as there was scope to do this. Certainly there were discussions in which Mr Milano took the advice, largely of Mr Graham Batten, but, on occasions, that of the plaintiff. There were times when the plaintiff would, of necessity, have to perform certain tasks without first consulting Mr Milano. The nature of the relationship between them and the work to be done made this inevitable. However, I accept that this did not occur on the majority of occasions and that, prospectively or retrospectively, the plaintiff always sought the approval of Mr Milano in relation to work performed. There is also no doubt but that Mr Milano possessed what could be described as the power of veto and exercised it. In other words, there would be instances when the plaintiff sought the approval of Mr Milano to perform certain tasks, and that approval was not forthcoming. If that occurred, the task was not done. Mr Jewell pointed to some examples of this, but the most graphic is probably the example of the plaintiff’s request to pipe the clean water from the trough to the cattle so as to avoid the use of the creek. Whilst it seems apparent that this course of action was strongly recommended by the plaintiff to Mr Milano, he refused to allow the work to be done. I might say that this clearly upset the plaintiff. Nevertheless, Mr Milano had exercised his “power of veto” and the plaintiff complied with it. The work was not done. There was also no argument but that Mr Milano gave some directions as to work that he wanted done and that on occasions he kept control of the cost of the work. There were instances when he would not permit work to be done because of the cost factor. In short, I am satisfied that Mr Milano retained the authority to command and to decide what orders to give. In this regard, I would refer to Graham v Bentley (1959) 76 WNNSW 603, a case which, incidentally, also involved farming activities.
(e) What was being supplied by the plaintiff to the defendant was his work and skill, as opposed to the supply of equipment and its performance. As was said in Barnes, it is not only unskilled persons that can properly be called servants. As stated in Elazac, modern authority recognises that it is relatively commonplace to employ employees who have particular skills or expertise that are not possessed by those employing them. As was said at paragraph 31:
“The fact that a person engaged to perform work has particular expertise no longer, of itself, provides any great support for a conclusion that that person is an independent contractor.”
What the plaintiff and his father supplied to the defendant was their work and skill. The fact that they may have possessed greater skill and farming expertise than Mr Milano or the defendant does not take matters much further. The provision of work and skill, as opposed to the supplying of equipment or its performance, is a factor indicating the existence of an employer/employee relationship.
(f) Continuing with the list of factors set out in Elazac, it is true that the plaintiff could, to an extent, set his own hours of work. There were times when necessity would leave him with no such option. I also accept that it was implicit that the defendant, via Mr Milano, expected work to be done in a timely fashion, and that there seem to have been no complaints by the defendant in relation to any failure in this regard. I am of the view that there is some strength in the argument of Mr Jewell that the plaintiff was akin to a casual worker who was on-call, with the additional factor that there would be occasions when necessity would require the plaintiff not to wait for any such call. In short, the plaintiff could set his own hours of work, but within the constraints of necessity and the need to perform required or requested work in a timely manner. This particular factor does not seem to me to be a particularly compelling one against the proposition that an employer/employee relationship existed.
(g) I regard the method of payment as being of significance. The plaintiff was paid for his work and skill by the hour. Apart from material that may have been purchased, the basic agreement was for payment by the hour. That was how the invoices were prepared. That was how the defendant paid. Payment was not determined by output, production, per task completed or the like. In my opinion, this points to an employer/employee relationship rather than to the plaintiff being a contractor.
(h) There is no argument but that income tax was not deducted, nor was holiday pay, long service leave or superannuation paid. If income tax had been deducted and these other amounts paid, that would be quite a strong supporting factor in favour of an employer/employee relationship. However, the absence of these matters is not fatal to the existence of a contract of employment. As was said in Barnes, “But this is an age of piecework and contract rates, and, in many cases, the older criteria will be found inadequate”. Whilst that observation was made more in the context of control, nevertheless it is of interest. The absence of paid superannuation and the like seems to me, depending upon the circumstances of the case, to be more the absence of something which would have supported the plaintiff in the present case, rather than something which points positively to a contractor relationship. It is a factor which favours the defendant, but, given the facts of this case, in my opinion not to any great extent. I also appreciate that GST was added to the invoices, also a fact that could be seen as favouring the defendant, but, again, hardly fatal to the plaintiff’s case.
(i) It is also significant that the plaintiff did not employ others. He did not employ Mr Ormond. He or his father may have recommended Mr Ormond to Mr Milano, but it was not argued that the Battens employed Mr Ormond and it seems to me quite clear that the plaintiff did not. Mr Ormond rendered separate invoices and was paid separately by the defendant. It may be that, in the division of work, some work was allocated to him, principally by Mr Graham Batten, but that does not make him an employee. In Elazac it was said that the most significant feature in relation to the issue of whether the plaintiff was an employee or a contractor was the plaintiff’s employment of his own employees at the worksites at which he was required to perform work. Even then, it was said that this was not absolutely inconsistent with a relationship of employer/employee. However, it was said that this would certainly be unusual. In the present case I am satisfied that the plaintiff had no employees when performing work for the defendant.
(j) I have already discussed the impact of the existence of a partnership. Whilst working in a partnership may be something that tends against the impression of an employer/employee relationship, it is not an insuperable or fatal factor. In the particular circumstances of the present case, and whilst it is a factor that does not favour the plaintiff, I am not of the view that it has a major impact.
(k) It also seems to me that the ultimate destination of payments made may not be of great significance. As has been discussed, the defendant was invoiced for payment on the basis of the hours that he plaintiff worked. The defendant paid accordingly. How the plaintiff chose to have that payment made seems to me to be a matter of less importance. The fact is that the plaintiff opted to have payments made, effectively, into a partnership account. Where the payment for work done ends up and how it is then distributed seem to me to be factors which are at least a small distance removed from being an important consideration in establishing whether there is an employer/employee relationship. Many people, indisputably employees, may wish their salary to be paid into a joint account, a trust account, a partnership account or the like. The amount that ends up in the pockets of such people may be quite different from the amount of the wage paid. As was said in Game:
“Further, if Mr Game did enter into an individual contract of service, he was not precluded from agreeing with his partners that his earnings should be credited to the partnership account.”
The Court went on to state that the contemporaneous existence of the partnership was not a reason to deny the existence of individual contracts of service. The amount payable for the work done was to be split three ways. This was also the situation in relation to the invoice for the work done by Mr Game at the time of his death. In this regard, the Court stated:
“I do not think that much, if anything, could be made of it in determining the nature of the engagement pursuant to which the work was done; and I doubt, even if admissible as an admission, that could be of utility.”
See Ashley JA at paragraphs 58 and following.
Thus, I think there is a limited amount that can be read into the manner in which payment by the defendant was distributed. It seems to me that the basis upon which that amount was calculated and paid is of greater importance.
(l) I am not persuaded by Mr Stanley’s arguments in relation to the power to delegate allegedly possessed by the Battens, and in particular by the argument concerning delegation from one to the other. In my opinion, this was simply a division of work as required. I agree with the submission of Mr Jewell that what was contemplated by the power of delegation is that a third party could be engaged or employed to do the work without the necessity of gaining the approval of the alleged employer. As submitted by Mr Jewell, the plaintiff and his father were really joint employees engaged to do the work and it mattered not whether one performed a particular task or worked more hours than the other. It is not a factor which I regard as being adverse to the conclusion that this was an employer/employee relationship.
(m) As I stated from the Bench, factor (h) listed in Elazac – whether or not the person engaged considered the relationship as one of independent contractor – is one with which I have some difficulties, particularly in the context of the present case. The test seems to me to be objective rather than subjective. However, it seems to have been comparatively clear in Elazac that the plaintiff Shirreff considered himself to be self-employed, and that everything he did in the course of his work suggested that this was so. Reference was then made to the fact that he employed employees, determined who he employed and where they worked, performed additional work for an organisation unrelated to the defendant and that there was no deduction of holiday pay, sick leave and the like. Even leaving to one side the last-mentioned matters, it seems clear that the Court was satisfied that the plaintiff considered himself to be self-employed and behaved accordingly. Whilst, with respect, I consider the test to be objective (and the contrary was not argued), I am not satisfied that, in the present case, there is any or any sufficient evidence that the plaintiff considered himself to be self-employed.
(n) In summary, the indicia supporting the proposition that the relationship between the plaintiff and the defendant was one of employer/employee seem to me to outweigh those to the contrary, and to do so comfortably. I appreciate that it is not a question of adding up the factors for and against such a proposition and then arriving at a conclusion. Weight also must be attributed. That an employer/employee relationship existed seems to me to be supported by the weight of the evidence. When it is taken into account that the defendant, via Mr Milano, had ultimate authority over the plaintiff; that he was supplying his work and skill as opposed to equipment and the like; that he was paid by the hour rather than in terms of output or production; that he did not engage other employees; that he did not have the power to delegate in the sense of appointing someone else to perform work without the approval of the defendant; and that there is no evidence which I consider to be conclusive that he regarded himself as an independent contractor, it seems to me that the balance swings heavily in favour of the proposition that he worked for the defendant pursuant to a contract of service rather than as an independent contractor working pursuant to a contract for services.
(o) To an extent, I am reinforced in the finding I have made by the admissions of liability made on behalf of the defendant in respect of statutory benefits. I agree with Mr Jewell that these represent admissions against interest of some significance. I also agree with his submission that Ansett v Taylor, and the observations of Ashley JA therein, are applicable in a case such as this. In particular, I would refer to the extracts from his Honour’s Judgment referred to at T 166-167. It also seems to me that what has been set out in the affidavit of Mr White falls short of the satisfactory explanation concerning acceptance of liability referred to by Ashley JA. I agree with what was submitted by Mr Jewell in relation to the possible effect of the defendant remaining silent or not providing a statement to Gallagher Bassett in relation to the claims. Nevertheless, Gallagher Bassett went ahead and accepted liability in respect of the claim. In those circumstances the admission against interest may well carry even more force. I would also agree that the circumstances set out in the notice of termination of benefits attempting to justify same appear, for what it is worth, inadequate, but whether that is a matter that need be now considered seems to me to be doubtful. In summary, I see no reason why the admissions of liability should not be treated as admissions against interest and as being significant, particularly in the absence of an adequate explanation. However, as stated, these admissions against interest do no more than reinforce a conclusion at which I had already arrived.
74 In summary, I find that the plaintiff was, pursuant to s134AB(1) of the Act, a worker at the relevant time and is entitled to compensation in relation to the injury suffered.
Conclusion
75 The plaintiff is successful. He has discharged the burden of proof in relation to being a worker within the meaning of the Act. Serious injury has been conceded. He is therefore entitled to the leave sought. I shall hear the parties as to the wording of the orders and as to any ancillary orders that are required.
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