Broadsword Builders P/L v Q-Comp

Link copied
Case Copied 20 min read

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Broadsword Builders P/L v Q-COMP [2010] QMC 18

PARTIES:

BROADSWORD BUILDERS PTY LTD

(appellant)

v

Q-COMP

(respondent)

FILE NO/S:

MAG34603/10(3)

DIVISION:

Industrial Magistrates Court

PROCEEDING:

Appeal against decision of Q-COMP

ORIGINATING COURT:

Industrial Magistrates Court at Brisbane

DELIVERED ON:

12 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2010

MAGISTRATE:

Lee G

ORDER:

Q-COMP’s decision dated 8 January 2010 is confirmed. This means the appeal is unsuccessful.

CATCHWORDS:

INDUSTRIAL LAW – WORKERS COMPENSATION – APPEAL AGAINST ADMINISTRATIVE DECISION – Q-COMP – Calculation of premiums – meaning of “worker” – independent contractors – whether satisfy the three elements of “results test” in s 2(a) Part 1 Schedule 2 of the Workers Compensation and Rehabilitation Act 2003 to fall outside definition of deemed worker

Workers Compensation and Rehabilitation Act 2003 (Qld), s 11, s 48, s 50, Schedule 2 Part 1 (s 2)

Workers Compensation and Rehabilitation Regulation 2003 (Qld), r 113

Brett Holt Plumbing Pty Ltd v Q-COMP [2005] QIC 13; 178 QGIG 255 cited

Cachia v Haines (1994) 179 CLR 403; [1994] HCA 14 cited

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 considered

Reliable Couriers Pty Ltd v Q-COMP [2005] 180 QGIG 255 applied

SPE Pty Ltd v Q-COMP and Fuller (C/2010/19) 10 August 2010 applied

Sterling Estates Development Corp Pty Ltd v Malouf [2003] NSWCA 278 considered

COUNSEL:

S Crawford (director) for appellant

P O’Neill for respondent

SOLICITORS:

Appellant appeared on own behalf

Respondent appeared on own behalf

  1. Broadsword Building Pty Ltd (Broadsword), a company in the business of housing construction, appeals pursuant to section 550 of the Workers Compensation and Rehabilitation Act 2003 (“the Act”)[1] from a decision of Q-COMP dated 8 January 2010[2] which confirmed WorkCover’s earlier decision[3] to conclude that three certain entities were workers with the consequence that amounts paid to them as wages are to be taken into account in determining Broadsword’s premium.

    [1] In Division 1 (Appeals to Industrial Magistrate or Industrial Commission) of Part 3 (Appeals);

    [2] Exhibit 3;

    [3] Exhibit 1 – WorkCover’s reasons for decision dated 11 November 2009;

  2. The matter came to light when WorkCover conducted an audit of Broadsword’s policy in October to November 2009 for the 2007/08 years. As a policy holder, Broadsword was obliged to file an annual return for all workers employed (section 50). It was discovered that Broadsword’s return for the 2007/08 year did not include payments made to the three entities concerned.      

  3. In confirming WorkCover’s decision, Q-COMP found that entities Owen Conohan, Dave’s Excavator (David van Rooyen) and Ben’s Bobcat (Ben Gilmore) were workers within the meaning of section 11(2) of the Act

  4. This appeal is not an appeal in the strict sense. It is a hearing de novo to be conducted as a full trial where both parties call evidence in support of their cases and witnesses are subject to cross examination: see for example Labaj v. WorkCover Queensland [2003] QIC 155; 174 QGIG 370 (17…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Broadsword Builders P/L v Q-Comp and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2010] QMC 18
Decision Date

CaseChat Overview and Summary

Broadsword Builders P/L appealed a decision of Q-Comp concerning the calculation of workers' compensation premiums. Broadsword contested the classification of certain workers as employees rather than independent contractors. The appeal was heard by the Industrial Court, which had to determine whether the workers satisfied the "results test" in section 2(a) Part 1 Schedule 2 of the Workers Compensation and Rehabilitation Act 2003. This test determines if an individual falls outside the definition of a deemed worker. The court had to assess whether Broadsword had proven that the workers were genuinely independent contractors and not employees for the purposes of workers' compensation.

The court examined whether Broadsword could establish that the workers met all three elements of the "results test": the worker must be under a contract for services, not under a contract of service, and have a profit-making motive. The court considered the evidence provided by Broadsword and the submissions made by Q-Comp. The court concluded that Broadsword had not provided sufficient evidence to satisfy the "results test." Therefore, the workers should be classified as employees for the purposes of workers' compensation. The court also rejected Broadsword's request for indemnity costs, finding that the appeal lacked merit and that Broadsword had not demonstrated any extraordinary circumstances warranting such an award.

The court confirmed the decision of Q-Comp dated 8 January 2010, upholding the classification of the workers as employees. The court granted the parties liberty to apply for costs on five business days' notice if they could not resolve the question of costs between themselves. This means that Broadsword's appeal was unsuccessful, and the decision of Q-Comp stood. Broadsword was not entitled to indemnity costs, and the parties were given the opportunity to seek costs if they could not agree on the matter themselves.

Orders

Orders of the court

Q-COMP’s decision dated 8 January 2010 is confirmed. This means the appeal is unsuccessful.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Broadsword’s appeal is therefore unsuccessful. Conclusion Pursuant to the section 558(1)(a) of the Act I confirm the decision of Q-COMP dated 8 January 2010. I note Broadsword seeks indemnity costs in its supplementary submissions on two grounds presumably on the basis that it succeeds in the appeal[27]. The first ground is that counsel for Q-COMP was aware of the SPE decision prior to the commencement of this appeal. The submission was that Broadsword should have been informed of it so that it could either properly prepare for the hearing or desist with the hearing and pursue other avenues. The second ground is that the only issue before previous decision makers was section 2(a)(i) only and section 2(a)(iii) became an issue in this appeal. [27] Paragraphs 53 to 56 supplementary submissions for Broadsword dated 16 August 2010; In my view, both points lack substance. As to the first point, the result in SPE was unknown until after the hearing of this appeal. Therefore, Q-COMP was in no better position as to what the outcome of that case would be. As to the second ground, this is a hearing de novo and Broadsword beared the onus of proof. Broadsword agitated this appeal and it is incumbent on it to prepare its case and seek appropriate advice. In this jurisdiction the question of costs is governed by Part 8 (Costs) of the Workers Compensation and Rehabilitation Regulations 2003 (Reprint 4 with effect from 1 July 2010) (the regulations). Section 113(1) generally provides that the costs of a proceeding before an Industrial Magistrate are in the discretion of the magistrate. Section 113(2)(a)(i) then provides that if costs are awarded, costs for counsel or solicitors fees are as per schedule 3[28] scale E of the Uniform Civil Procedure Rules 1999 (UCPR)[29]. If the matter is thought to be complex and the magistrate considers the remuneration for such counsel or solicitor is inadequate, then an amount up to 1.5 times that scale can be awarded: section 113(a)(ii). I do not think that applies in this case. [28] “Scale of costs – Magistrates Courts”; [29] See select “Acts, SL as in force”; then select “S”; found under Supreme Court of Queensland Act 1991; The first point to note is that the regulations apply to counsel or solicitor fees and not to anyone else including self represented litigants. Costs are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the regulations speak of costs. This is consistent with the approach taken by the majority of the High Court in Cachia v. Hanes (1994) 179 CLR 403; [1994] HCA 14. In any event, Broadsword was not successful in its appeal. On that basis also, in the absence of some extraordinary circumstance, it would not ordinarily be entitled to a costs award even if legally represented. However, Q-COMP succeeded in resisting the appeal and it incurred legal costs. I will grant the parties liberty to apply on 5 business days notice in the event the parties cannot resolve the question of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.