Bennett Constructions (NSW) Pty Ltd v Bond

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bennett Constructions (NSW) Pty Ltd v Bond [2014] NSWWCCPD 32
APPELLANT:	Bennett Constructions (NSW) Pty Ltd
RESPONDENT:	Brian Bond
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-15599/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	23 December 2013
DATE OF APPEAL HEARING: DATE OF APPEAL DECISION:	19 May 2014 30 May 2014
SUBJECT MATTER OF DECISION:	Application to extend time to appeal; s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J De Greenlaw, instructed by Mulcahy Lawyers
Respondent:	Mr H Halligan, instructed by Beilby Poulden Costello
ORDERS MADE ON APPEAL:	1. The Application to extend time to appeal is refused. 2. The matter is remitted to the same Arbitrator to determine Mr Bond’s entitlement to weekly benefits, if any. 3. The appellant, Bennett Constructions (NSW) Pty Ltd, is to pay Mr Bond’s costs of the appeal as agreed or assessed.

BACKGROUND

The respondent to the appeal, Brian Bond, was employed as a casual bricklayer by DA&DE Burke t/as D&D Bricklaying (Burke Bricklaying). The company’s principal place of business is located at Eaglesby, Queensland. Mr Bond lives in Terranora, NSW.
Burke Bricklaying entered into a contract with Bennett Constructions (NSW) Pty Ltd (Bennett Constructions), the appellant, to supply and install block work and associated works in the construction of a multi-purpose hall located at the Mount St Patrick College Murwillumbah, New South Wales.
On 27 July 2012 whilst working at the construction site in Murwillumbah an embankment gave way causing Mr Bond to fall into a trench resulting in injuries to his lumbar spine.
It is common ground that Burke Bricklaying held a policy of insurance for workers’ compensation in the state of Queensland, but did not hold a separate policy under the New South Wales workers’ compensation legislation. Bennett Constructions are insured for workers’ compensation under the New South Wales legislation.
Mr Bond seeks compensation against the principal, Bennett Constructions, pursuant to s 20 of the Workers Compensation Act 1987 (the 1987 Act).
On 18 October 2012, Bennett Constructions’ insurer, QBE Workers Compensation (NSW) Limited, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied liability for Mr Bond’s claim for the following reasons:
“Our evidence indicates that your alleged injury of 12 July 2012 which occurred whilst you were in the employ of Burke Bricklaying Subcontactors to Bennett Constructions (NSW) Pty Ltd was not employment which was connected with the State of New South Wales as required by s.9AA(1) Workers Compensation Act 1987.
Our evidence indicates that your employment with Burke Bricklaying is connected with the State of Queensland as this is the State in which you are usually based for the purposes of that employment as provided by s.9AA(3)(b).
In the alternative we have determined that your employment with Burke Bricklaying is connected with the State of Queensland on the basis that Queensland is the State in which your employer’s principal place of business in Australia is located and in accordance with s.9AA(3)(c).”
On 3 December 2012, Mr Burke lodged an Application to Resolve a Dispute (the Application) in the Commission. He seeks weekly payments of compensation from 27 July 2012 to date and continuing in the sum of $1,156 per week.
On 17 January 2013, Bennett Constructions lodged a reply to the Application. It confirmed that the matters in dispute were those stated in the s 74 notice. The matter was allocated to a Commission Arbitrator, Mr J Wynyard.
On 17 June 2013, the Arbitrator convened a teleconference of the parties. He issued a series of directions relating to the production of documents, the lodging of any additional evidence to be relied upon and the lodgment and exchange of written submissions.
Having received the written submissions (and noting that no further evidence was lodged) the Arbitrator considered that an oral hearing would not assist in the resolution of the matter. He determined the matter based on the evidence filed and the parties’ written submissions.
On 23 December 2012, the Arbitrator issued a Certificate of Determination which was accompanied by a Statement of Reasons. The Arbitrator concluded that Mr Bond’s employment was connected to the state of New South Wales on the basis that he usually worked in New South Wales. The Arbitrator concluded that Mr Bond had been employed on a fixed contract for the period involved in completing the work at Murwillumbah. He found that there was no ongoing arrangement for permanent employment.
The Arbitrator also found that Bennett Constructions was the principal within the terms of s 20 of the 1987 Act. He deferred making the final orders and directed the parties to file Short Minutes of Order in accordance with his findings.
Bennett Constructions seeks leave to extend time to appeal the Arbitrator’s decision.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 23 December 2013, records the Arbitrator’s orders as follows:
“The Commission determines:
1.The applicant’s employment was connected with New South Wales.
2.The respondent was the principal within the terms of s.20 of the 1987 Act.
3.The parties are to bring in Short Minutes of Order in terms of my findings herein by 31 January 2014, or such earlier time as may be agreed.
4.The respondent is to pay the applicant’s costs as agreed or assessed. I certify the matter as being complex and order an uplift of 20 per cent applicable to both parties.
Short Reasons
As can be seen from this Statement of Reasons this case was based on the extra territorial provisions of the Act and entailed a consideration of a good deal of law relating to the interpretation of the relevant legislation.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

Monetary threshold

There is no dispute that the quantum issue on the appeal is in excess of $5,000 and therefore the threshold requirements of 352(3)(a) are satisfied.

Extension of Time

An appeal against a decision of an Arbitrator must be made within 28 days after the making of the decision appealed against (s 352(4) of the 1998 Act).
An Arbitrator’s decision is made “when the Commission issues a Certificate as to the determination of the dispute as required by s 294(1) of the 1998 Act” (Pt 16 r 2(2) of the Workers Compensation Rules 2011 (2011 Rules)). In the present matter that date is 23 December 2013.
The last day for lodging the appeal under s 352(4) was 20 January 2014. The appeal was lodged on 31 January 2014 and was therefore lodged 11 days out of time (s 352(4) of the 1998 Act). Bennett Constructions seek an extension of time in which to appeal.
Part 16 r 2(12) of the 2011 Rules states:
“The Commission constituted by a Presidential member may, if a party satisfies a Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
In support of the Application, Mr Mulcahy, Bennett Constructions’ solicitor, submitted that the Arbitrator’s determination and Statement of Reasons were received in his office on 7 January 2014. Due to the Christmas/New Year period, his office was closed until 13 January 2014. The decision was received by non-professional staff who were not aware of its significance and the need to “appeal in a timely fashion”.
The Arbitrator’s determination came to Mr Mulchay’s attention on 17 January 2014, when he returned to his office from leave. On that day, he notified Mr Bond’s solicitors that, among other things, he would be seeking instructions from his client insurer concerning a possible appeal from the Arbitrator’s decision. On the same day he sought instructions from his client in relation to an appeal.
On 24 January 2014, Mr Mulcahy received instructions from his client to lodge an appeal at which time he notified Mr Bond’s solicitors of those instructions.
Mr Mulcahy further submitted:
“On behalf of the Appellant employer it is submitted that an extension of time beyond the usual 28 days should be granted having regard to the Christmas vacation when the Appellant employer’s solicitor was absent and unaware that Arbitrator Wynyard had provided a Certificate of Determination.
The appellant employer submits that an extension of time in which to appeal could be lodged was envisaged by Arbitrator Wynyard when he made orders directing the parties to prepare ‘Short Minutes of Order by 31 January 2014’.”
At the hearing of the appeal, Bennett Constructions was represented by Mr De Greenlaw of counsel. He made the somewhat surprising submission that the appeal was in fact lodged within time. He submitted that a date stamp bearing the date “7 January 2014” on the letter addressed to Mr Mulcahy’s office attaching a copy of the Certificate of Determination indicated that the Certificate of Determination was issued on 7 January 2014, and therefore the appeal was lodged in time because time did not start to run until 7 January 2014.
The letter from the Commission issuing the Certificate of Determination is clearly dated 23 December 2013. Mr De Greenlaw conceded that he had no instructions from his client concerning the date stamp and was unable to indicate whether it was a stamp affixed to the letter when it was receive by Mr Mulcahy’s office. Given that Mr Mulcahy had stated in his written submission that a copy of the Commission’s letter and Certificate of Determination were received in his office on 7 January 2014, in the absence of any evidence to the contrary, it seems obvious the date stamp to which Mr DeGreenlaw referred was placed on the original correspondence when it was received in Mr Mulcahy’s office. Therefore, I reject the submission that the appeal was lodged within time.
If the Commission found that the appeal was lodged beyond the time provided for in s 352(4), which I do, Mr De Greenlaw, relied on my decision in McGettigan v Northcoast Tree Service Pty Limited [2014] NSWWCCPD 25 (McGettigan) in support of a submission to extend time. He submitted that in that matter the primary reasons for the extension of time was the intervention of the Christmas period and the solicitor’s mistaken reliance on information allegedly given by a member of the Commission’s staff. In McGettigan there had been non-compliance with the rules concerning notification to the opposing party of an intention to appeal, which it is submitted is not a feature of the instant matter.
Leave was granted in McGettigan for a combination of reasons, most of which have no application to the present case. The fact that the Arbitrator’s decision had been made towards the end of the year was a factor in the decision, however, the facts in McGettigan are quite different to the facts in the instant matter. Mr McGettigan’s solicitor alleged that she had been given incorrect information from a member of the Commission’s registry, upon which she relied, concerning the applicable time limit in matters that spanned the Christmas/New Year period. Those factors, combined with the fact that Mr McGettigan had at least an arguable case that the Arbitrator had erred, were sufficient to justify an extension of time being granted in that matter.
Whilst the Commission would ordinarily have regard to the difficulties faced by practitioners when the appeal period spans the Christmas holidays, that is not an automatic passport to an extension of time and does not of itself satisfy the exceptional circumstances test.
The evidence in this matter indicates that Mr Mulcahy was under no misapprehension as to the appeal period. As Mr Halligan, who appeared for Mr Bond, submitted at the appeal hearing that, having sought an oral hearing, it might reasonably have been expected that some evidence or explanation for the delay might have been forthcoming from Bennett Constructions, but it was not.
Mr Halligan opposed the application on the basis that the vacation period intersecting the appeal period did not amount to exceptional circumstances. Moreover, the Commission has been left with no proper explanation as to why the appeal was not filed within time, particularly in circumstances where it is accepted that Mr Mulcahy was aware of the Arbitrator’s determination before the time limit expired.
In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66], Campbell JA, Tobias JA and Handley AJA agreeing, considered the expression exceptional circumstances:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b)     Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c)     Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d)     In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e)     Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
Although I accept that the window of opportunity open to Mr Mulcahy to lodge the appeal after the Arbitrator’s determination came to his notice was short, I cannot be satisfied that exceptional circumstances exist when no explanation has been offered either in the written submissions, or on the hearing of the appeal, for the failure to lodge the appeal when he had the opportunity to do so. Given the urgency of the matter, no reasons have been advanced as to why Mr Mulcahy did not expedite the obtaining of instructions from his client. It appears that he merely allowed the time to expire.
I also reject the submission that an extension of time was envisaged by reason of the Arbitrator’s direction to the parties to prepare “Short Minutes of Order” by 31 January 2014. Those orders were directed to the quantification of the worker’s entitlement to compensation, the Arbitrator having determined the relevant liability issues. I reject the submission that in approaching final orders in this way the Arbitrator envisaged an extension of time to appeal his determination on the liability issues. The granting of such an extension of time is a matter for a Presidential member, not an Arbitrator.
Even if the reasons for the appeal being lodged out of time do not establish exceptional circumstances, the test to be applied is a composite one and it may still be possible to satisfy the test in Pt 16, r 2(12) of the 2011 Rules if Bennett Constructions otherwise establishes that to lose the right to appeal would create a demonstrable and substantial injustice. In Gallo v Dawson [1990] HCA 30; 93 ALR 479, McHugh J held that, among other things, the prospects of the appellant succeeding in the appeal, is a factor to take into account in order to determine whether the strict application of time limits will work an injustice.
In Bryce v Department of Corrective Services [2009] NSWCA 188, Allsop P considered Pt 16, r 2(11) of the Workers Compensation Commission Rules 2006 which is in the same terms as Pt 16 r 2(12) of the current rules. His honour held at [10] (Beasley JA (as her honour then was) and Giles JA agreeing):
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction…”
Whether or not there will be a demonstrable or substantial injustice if the time to appeal is not extended, in the present matter, requires a consideration of the merits of the appeal.

ISSUES ON APPEAL

The proposed issues on appeal are whether the Arbitrator erred:
(a) in finding that Mr Bond sustained injury in employment which was connected with the state of New South Wales, and
(b) by failing to give proper and sufficient reasons.
In its written submissions, Bennett Constructions submitted that it was not a principal within the terms of s 20 of the 1987 Act and accordingly was not liable to pay workers compensation benefits to Mr Bond. That ground of appeal was abandoned at the hearing.

EVIDENCE

Brian Bond

Mr Bond is 62 years of age. He states that he knew of Dean Burke, a principal of Burke Bricklaying, as he had completed some work for him “a couple of years ago”.
About 5 weeks prior to 27 July 2012, as Mr Bond’s previous long term employment had come to an end, he contacted Mr Burke, to ask whether he had any available work. In his statement of 15 October 2012, Mr Bond states that Mr Burke replied “[c]an you give me three (3) or four (4) days [?] I have a job starting in Murwillumbah”. Although expressed as a question, this was clearly an offer of work by Mr Burke to Mr Bond.
Mr Burke contacted Mr Bond several days later and asked whether he was available for work in Queensland for a single day on 5 July 2012, to which he apparently agreed. He worked on 5 July 2012 in Calamvale and then in Murwillumbah from 6 July 2012 to 1 August 2012. Mr Bond received his injury on 27 July 2012, when and embankment gave way causing him to fall into a trench.
Mr Bond was not required to attend the office of Burke Bricklaying on a daily basis, he said it was normal practice that he would be contacted and informed where he was to work and he would drive himself to the site.
Mr Bond said at [20] of his statement:
“At the time that I commenced working with Dean I was of the belief that I would be provided with ongoing work. I actually like working for Dean and with other bricklayers.”
The arrangement between Mr Burke and Mr Bond was that Mr Bond was paid an hourly rate of $32. Mr Bond was to send an invoice for his work each Wednesday to be paid the following day. Mr Bond’s normal practice was to fax an invoice to the office of D&D Burke Bricklaying which is located in Logan Road, Eagleby, Queensland.
The Application filed by Mr Bond contains, among other things, tax invoices for work done. The first invoice, dated 18 July 2012, is in respect of work carried out between 5 July and 18 July 2012 for various hours of work calculated at $32 per hour. With the exception of the work carried on 5 July 2012 which is described as “Calamvale 8 hours” the balance of the invoice pertains to work undertaken at Murwillumbah.
The second invoice, dated 25 July 2012, refers to the period from 19 July to 25 July 2012 in respect of work undertaken at Murwillumbah.
A third invoice, dated 1 August 2012, in respect of work undertaken between 26 July and 1 August 2012 pertains to the work undertaken at Murwillumbah.

After completing the work at Murwillumbah on 1 August 2012 Mr Bond rang Mr Burke that afternoon to enquire about further work. He said he was told “there was nothing until the end of the week and to call him on Sunday night”. It is not known if Mr Bond called Mr Burke again, but it is agreed that Mr Bond has not worked since 1 August 2012.

Dean Burke

Mr Burke provided a signed statement of evidence dated 12 October 2012.
Mr Burke stated that he is a partner in the firm of DA Burke & DE Burke, which trades as D&D Burke Bricklaying. His partner being his wife Dorothy. He confirmed that the registered office of D&D Burke Bricklaying is located at 302 Logan Street, Eagleby, Queensland. The registered business is insured under the Workers Compensation and Rehabilitation Act 2003 (Qld).
Mr Burke stated that Mr Bond commenced employment with D&D Burke Bricklaying on 5 July 2012. He said that “his first work was located in Queensland”. He employed Mr Bond on a casual basis “not under any contract of employment”.
Mr Bond’s hours of work and duties were dependant on the work that Mr Burke scheduled for him. He confirmed that Mr Bond was to be paid upon submission of invoices for work completed.
Mr Burke stated that D&D Burke Bricklaying entered into a sub-contract agreement with Bennett Constructions (NSW) Pty Ltd to carry out work on a project at the Mount St Patrick College, namely a multi-purpose hall located in Queen Street, Murwillumbah, New South Wales. The contract was to supply and install block work and associated works. The sub-contract was to commence on 1 June 2012 and was due to be completed by 1 October 2012.
Mr Burke said at [15]:
“I recall that at the time (July 2012) I was quite busy with work and Brian contacted me looking for work. I knew Brian as he had worked for me previously, a couple of years [sic] and I also know [sic] his previous employer, Mick Manoge of T & M Bricklaying.”
Mr Burke stated that his business rarely operated in New South Wales adding (at [20]) “I believe that I have only completed three (3) jobs in the past ten (10) years with two (2) of those being this year”.
Mr Burke confirmed Mr Bond completed fourteen days of work at the site in Murwillumbah prior to his accident on 27 July 2012.
At [25] of his statement Mr Burke said:
“Brian contacted me during the evening of 1 August 2012 to inquire about work for the following day. I had to inform Brian that it was a bit quite [sic] at the moment and I did not have any work for him and that he would just need to wait until things picked up again. There were six (6) employees in total that were in the same position. I did not have the intention of terminating Brian[.] [W]hen jobs picked up again I would have offered him work where available.”
Mr Burke confirmed that he has not offered Mr Bond any further work since 1 August 2012.

Alan Clarke

Mr Clarke is employed as a site supervisor by Bennett Constructions (NSW) Pty Ltd. He was the site supervisor at the Murwillumbah construction site. He confirmed that his employer engaged D&D Burke Bricklaying by sub-contract to complete work at the site. He recalls Mr Bond as a bricklayer on the site working “as an employee of D&D Burke Bricklaying”.

Darryl Piper

Mr Piper provided a signed statement of evidence dated 15 October 2012. He is the director of Bennett Constructions (NSW) Pty Ltd.
Mr Piper stated (at [8]–[9]) that:
“Bennett Constructions (NSW) Pty Ltd was employed by [sic] to undertake the construction of a Multi-Purpose Hall at the Mount St Patrick College, Murwillumbah, NSW located on the Queensland Road, Murwillumbah NSW. This was agreed to by contract with the Catholic Parish of the Sacred Heart, Murwillumbah...[i]n accordance with this contract I engaged Burke Bricklaying located at 302 Logan Street, Eagleby, Qld to undertake and supply and install block work and associated works. Burke Bricklaying is owned and operated by Dean and Dorothy Burke.”

ARBITRATOR’S REASONS

Based on the evidence as outlined above, which has not been challenged, the Arbitrator was satisfied ([27]) that Mr Bond “was employed by a company who entered into a contract with the principal to carry out work on the Mount St Patrick College, Murwillumbah”. By that, I infer that the Arbitrator was satisfied that Mr Bond was employed by Burke Bricklaying in respect of the contract that that company had entered into with the principal Bennett Constructions.

The Arbitrator said (at [29]):
“The evidence also satisfies me that [Mr Bond] was retained by the employer for the purposes of completing that particular project. I have extracted various expressions by both [Mr Bond] and Mr Burke that a future working relationship was envisaged, but there was no contract entered into between the employer and [Mr Bond] beyond the term of [Mr Bond’s] bricklaying duties on this particular project, in respect of which a subcontract existed between the principal and the employer.”
Referring to Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 (Martin) the Arbitrator stated that s 9AA provides for a series of cascading tests. He said (at [32]) “[t]hat is to say, if the first of the four tests under subsection (3) of s 9AA is satisfied there is no need to examine the following tests and so on”.
The Arbitrator excluded the proviso in s 9AA(6) as applying in the circumstances of this case citing Commissioner Herron in Tamboritha Consultant Pty Ltd v Knight [2008] WADC 78 (Tamboritha) at [73].
Applying the principles in Martin to the facts before him, the Arbitrator said (at [35] of the Reasons):
“…it can be seen that on the evidence, [Mr Bond] lived in New South Wales and appeared to have been employed as a bricklayer for many years. The contract he was carrying out at Murwillumbah was for a fixed period and the circumstances under which [Mr Bond] came to be working for the employer arose out of a casual arrangement [Mr Bond] appears to have had. In that regard I note that at some earlier indeterminate stage [Mr Bond] did some work for the employer but that he had not [sic] for some two years. According to the evidence he was hired on the basis of completing a job in Murwillumbah, although he got the separate contract in Brisbane offered to him as well. It was whilst performing the contract at Murwillumbah that he was injured and I am satisfied that the evidence raises a prima facie case that the applicant usually worked in the state of New South Wales and that this period of employment with the employer was not part of an ongoing arrangement for permanent employment, and therefore could not be described as ‘temporary arrangement’ within s.9AA(6). There has been no evidence to rebuff that prima facie case.”
The Arbitrator rejected a submission that it was open to him to accept that the employment with Burke Bricklaying was of a casual nature and because such employment had been obtained previously that he could infer an ongoing relationship between Mr Bond and Burke Bricklaying.
The Arbitrator concluded that having been satisfied that Mr Bond “usually worked” within New South Wales it was unnecessary for him to consider the “usually based” in test. He noted, however, that the “usually based” test would also result in a finding that New South Wales was the relevant state.

SUBMISSIONS

Bennett Constructions

Bennett Constructions submit that Mr Bond was employed by D&D Bricklaying as a casual bricklayer, such employment being dependent on work being available for D&D Bricklaying.
Bennett Constructions submit that Mr Bond’s injury on 27 July 2012 occurred in employment that was connected with the State of Queensland not New South Wales.
A mathematical calculation as to the days worked in New South Wales and those worked in Queensland is not determinative of where the worker usually worked. Reference must also be made to the worker’s work history and the intention of the worker and the employer (s 9AA(6)) of the 1987 Act.
Mr Bond had worked for D&D Bricklaying prior to 5 July 2012 and it is submitted “it was the intention of the parties that [Mr Bond] would from time to time, could again, be casually employed by D&D Burke Bricklaying to perform work in the State of Queensland where D&D Burke Bricklaying operated its business”. Mr Bond’s own evidence (at [44] above) is evidence of a continuing working relationship, because it was Mr Bond’s belief that he would be provided with ongoing work. Mr De Greenlaw submitted (at T12.33) that that evidence supports a finding of an ongoing relationship of “permanent employment” on a “casual basis.”
Mr De Greenlaw submitted (at T13.33) that the telling evidence to confirm such a relationship is the evidence of Mr Burke, reproduced at [58] of this decision, where he said he “did not have the intention of terminating Brian[.] [W]hen jobs picked up again I would have offered him work where available”. The reference to “not terminating” it is submitted is consistent with continuing employment. Mr De Greenlaw said (at T15.21);
“...if there had been a separate period of employment restricted to Murwillumbah, there wouldn’t have been a reference to not terminating [Mr Bond] because his employment would already have been terminated.”
Mr De Greenlaw submitted (at T20.4) that the Arbitrator’s error was his failure to have sufficient regard to Mr Burke’s evidence about not “terminating” Mr Bond. He also submitted (at T20.32) that the Arbitrator erred by failing to have regard to the intentions of the parties which was a critical issue.
The work performed at Murwillumbah was not part of a single contract, but part of an ongoing arrangement for Mr Bond to perform casual bricklaying work for D&D Burke Bricklaying.
Bennett Constructions submitted “on the balance of probabilities any further work to be performed by Brian Bond (in the absence of injury) was work to be performed in the State of Queensland as the evidence of Dean Burke a partner in the business known as D&D Bricklaying states as follows:
‘20. In actual fact our business rarely works in NSW. I believe I only completed 3 jobs in the past 10 years with 2 of those being in this year’.”
Mr De Greenlaw submitted that if satisfied that the Arbitrator did not err in his findings on the “usually works test” then that is the end of the matter and no further enquiry is to be made. However, if the appeal succeeds on that point then I would be satisfied that the work performed by Mr Bond in New South Wales was work performed pursuant to a “temporary arrangement” and that future work would be performed in the state of Queensland. On that basis the proviso in s 9AA(6) would apply to the Murwillumbah work and a finding would be substituted that the worker was usually employed in the state of Queensland.
At the hearing of the appeal Bennett Constructions conceded that the Arbitrator was correct to find that Mr Bond was not an existing recipient of compensation as at 1 October 2012, and therefore if the appeal was not upheld the appropriate order was to remit the matter back to the same Arbitrator to determine the workers entitlement to weekly benefits.

Mr Bond

Mr Halligan submitted that no error of law has been demonstrated. The Arbitrator, citing Commissioner Herron’s reasoning in Tamboritha found that the work Mr Bond did for Burke Bricklaying constituted a separate period of employment.
Mr Burke initially engaged Mr Bond for three or four days on a temporary arrangement. Mr Bond completed the work he was engaged to do on 30 July 2013, at which point he sought further work, but was denied the opportunity because Mr Burke simply says there was no work available.
The facts point to an itinerant arrangement between Mr Burke and Mr Bond. Nothing in the nature of permanency or regular employment could be made out on any of the facts.
The Arbitrator dealt with the facts comprehensively and nothing has been advanced by Bennett Constructions to suggest that those factual matters were in any way misunderstood or misconstrued by the Arbitrator.

DISCUSSION AND FINDINGS

Legislation and General Principles

The relevant statutory provision is s 9AA of the 1987 Act, which is in the following terms:

“9AA Liability for compensation

(1)     Compensation under this Act is only payable in respect of employment that is connected with this State.
(2)     The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(3)     A worker’s employment is connected with:
(a) the State in which the worker usually works in that employment, or
(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or
(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

(4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(5) If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if:
(a) the worker is in this State when the injury happens, and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(6)     In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
(7)     Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.
(8)     In this section:

‘ship’
means any kind of vessel used in navigation by water, however propelled or moved, and includes:
(a) a barge, lighter, or other floating vessel, and
(b) an air-cushion vehicle, or other similar craft,

used wholly or primarily in navigation by water.

‘State’
includes Territory and, in a geographical sense, a State’s or Territory’s relevant adjacent area as described in Schedule 1.”

In his submissions Mr De Greenlaw made much of the fact that Mr Burke made reference to not “terminating” Mr Bond at the conclusion of the work in Murwillumbah (see [74] above). This, he submitted, was consistent with an ongoing employment relationship of a casual nature. This submission is fundamentally flawed. The very essence of an employment relationship “on a casual basis” is that it has no fixed term. Work is usually provided on an “as needs” basis. That is essentially what happened in the present matter. Mr Burke offered Mr Bond work as and when he needed him. The work included one day in Queensland and 14 days in Murwillumbah. There was never any agreement to extend the contract beyond the completion of the Murwillumbah job. That is clear from the fact that Mr Bond rang Mr Burke on 1 August 2012 to enquire about work the following day. There was no work for Mr Bond and six other workers. Therefore the question of terminating Mr Bond did not arise. The contract had merely concluded. This is confirmed by Mr Burke’s statement that if work “picked up again” he would offer it to Mr Bond.
Mr De Greenlaw relied on Mr Bond’s evidence of his belief that he would be provided with ongoing work by Burke Bricklaying in order to establish an ongoing employment contract. The complaint is that, among other things, the Arbitrator failed to have sufficient regard to the intention of the parties which was a critical issue.
The intentions of the parties to a contract is to be objectively ascertained (Lend Lease (Millers Point) Pty Ltd v Barangaroo Delivery Authority [2013] NSWSC 1848 (Lend Lease)). The objective facts which the Arbitrator took into account are consistent with Mr Bond being offered short term employment contracts from time to time if and when the workload of Burke Bricklaying permitted. The work Mr Bond did in Murwillumbah was on the basis that the work would be available for the duration of the contract in Murwillumbah.
The Arbitrator acknowledged that Mr Bond had performed one day’s work in Queensland prior to the Murwillumbah contract. However, he correctly found that that evidence was insufficient to rebut a prima facie case that Mr Bond usually worked in the state of New South Wales.
Having regard to the intention of the contracting parties, objectively ascertained, a reasonable person would have understood them to mean that, as the Arbitrator found, Mr Bond had entered into an arrangement with Burke Bricklaying on a casual basis, namely, for as long as work was available. On that basis, the state in which Mr Bond usually worked in that employment was clearly New South Wales.
The fact that there was no work immediately available to Mr Bond following the completion of the Murwillumbah work, lends weight to the Arbitrator’s conclusion that the relationship between Mr Bond and Burke Bricklaying was not one of a continuing contract. It supports the conclusion that the parties intended that work would be offered and undertaken by Mr Bond if, and when, the need arose. Each offer of work would, if accepted by Mr Bond, create a new contract.
The Arbitrator accepted that a future working relationship was envisaged between Mr Bond and Burke Bricklaying, but concluded that no contract had been entered into beyond the term of Mr Bond’s bricklaying duties at the particular project in Murwillumbah. As that work was undertaken in New South Wales it supports the Arbitrator’s finding that the employment was connected with the state of New South Wales. The absence of any evidence as to arrangements for ongoing work, when it would occur, where it would occur and how much of it there would be, all militates against a finding of an ongoing contract.
Even though Mr Bond believed he would be provided with ongoing work, the terms of the contract are not to be determined upon subjective beliefs or intentions. The legal rights and obligations of contracting parties turn upon what their words and conduct would be reasonably understood to convey (Lend Lease). For the reasons given, it was open to the Arbitrator to find that no contract had been entered into beyond the project in Murwillumbah. Mr Bond’s subjective belief that he would be provided with ongoing work was not relevant and did not establish a contract beyond 1 August 2012.
It follows that, whether or not any further work undertaken by Mr Bond for Burke Bricklaying was likely to be in Queensland or New South Wales is irrelevant because he was not employed under an ongoing contract of employment. If there was an ongoing employment relationship, the intentions of the parties as to where the work was to be carried out may have become relevant in terms of applying the proviso in s 9AA(6). However, that issue falls away because Arbitrator’s conclusion that the contract between Mr Bond and Burke Bricklaying was only for the duration of the project at Murwillumbah was clearly correct.
The complaint in respect of the adequacy of the Arbitrator’s reasons is confined to a submission that the Arbitrator failed to give adequate reasons to explain his findings given Mr Bond’s evidence that it was his belief that he would be provided with ongoing work and Mr Burke’s evidence to the effect that it was not his intention to “terminate’ Mr Bond at the conclusion of the Murwillumbah work.
The Arbitrator’s reasons on the critical point in issue are stated at [35] his decision, (reproduced at [67] above). They were that Mr Bond lived in New South Wales, his contract was to work on a fixed project at the school at Murwillumbah in New South Wales, and the injury arose out of a casual agreement relating to the work at Murwillumbah. Although Mr Bond previously did one day’s work in Queensland, the evidence established that Mr Bond’s employment was connected with New South Wales because in respect of that employment, he usually worked in New South Wales. Thus the Arbitrator clearly stated the basis for his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247), and complied with his obligation to give reasons.

In reaching his conclusion the Arbitrator made reference (at [20] of the Reasons) to Mr Burke’s subjective belief concerning ongoing work. The Arbitrator did not refer specifically to Mr Burke’s reference to not terminating Mr Bond at the completion of the Murwillumbah work. However, this was not an issue argued at arbitration and it is not an error for an Arbitrator not to deal with an issue never argued (Brambles Industries Limited v Bell[2010] NSWCA 162 at [22] and [30]).
If I am wrong and the Arbitrator reasons are insufficient to explain his conclusions on the essential issue before him, it would make no difference to the outcome of the appeal for the reasons given at [89]–[91].
For these reasons there are no prospects of the appeal succeeding. It follows that the appellant has not demonstrated that to lose the right to appeal would result in demonstrable and substantial injustice. Given the prospects of success on appeal and Bennett Constructions’ failure to demonstrate exceptional circumstances, the application to extend time is refused.

DECISION

The Application to extend time to appeal is refused.
The matter is remitted to the same Arbitrator to determine Mr Bond’s entitlement to weekly benefits, if any.

COSTS

The appellant, Bennett Constructions (NSW) Pty Ltd, is to pay Mr Bond’s costs of the appeal as agreed or assessed.

Judge Keating
President

30 May 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2014] NSWWCCPD 32

19 May 2014 30 May 2014