Bryden Homes Pty Ltd v TasBuild Limited - [2018] TASSC 27

[2018] TASSC 27

COURT: SUPREME COURT OF TASMANIA

CITATION: Bryden Homes Pty Ltd v TasBuild Limited [2018] TASSC 27

PARTIES:  BRYDEN HOMES PTY LTD
  v
  TASBUILD LIMITED (ACN 082 066 939)

FILE NO:  1198/2016
DELIVERED ON:  11 May 2018
DELIVERED AT:  Hobart
HEARING DATES:  21 September 2016
JUDGMENT OF:  Wood J
CATCHWORDS:

Statutes – Interpretation – Acts of Parliament – Operation and effect of Acts – Interaction of Acts – Impact of s 7(1) of the Independent Contractors Act2006 (Cth) on State legislation – Whether s 7(1) applies to a worker who potentially may be an independent contractor – Whether onus on prosecution to exclude the operation of s 7(1) beyond reasonable doubt – Consideration of text and purpose – Section 7(1) enlivened by a positive finding of fact that worker is an independent contractor.

Independent Contractors Act 2006 (Cth), ss 3 and 7.
Construction Industry (Long Services) Act 1997 (Tas), ss 6 and 8.
Acts Interpretation Act1931 (Tas), s 8A.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27, applied.
Aust Dig Statutes [1129]

Industrial Law – Tasmania – Long Service Leave – Other matters – Belief that employees were independent contractors relied upon as honest and reasonable mistake of fact – Advice sought about legal status of workers – All material facts known – Mistake of law – In the circumstances the belief was unreasonable and evidentiary onus not discharged.

He Kaw Teh v The Queen (1985) 157 CLR 52; Ostrowski v Palmer [2004] HCA 30, 218 CLR 493; CMT v The Queen [2008] HCA 25, 236 CLR 440, applied.
Aust Dig Industrial Law [3403]

Industrial Law – Tasmania – Long Service Leave – Other matters – Prosecution for failure to apply to register employees – Contention that complaint made outside statutory time limit – "Continuing offences" - Obligation continues until it is observed and complaint not out of time.

Construction Industry (Long Services) Act 1997 (Tas), ss 6, 8 and 9B.
Justices Act 1959 (Tas), ss 26 and 31.
R v Barelli's Bakeries [1965] VR 615; Cox v Ketchell [1972] Tas R 33, applied.
Aust Dig Industrial Law [3403]

Magistrates – Hearing – Procedural fairness and natural justice – Finding of guilt based on reasoning not relied on by prosecution – Matters always issues for consideration – No duty to foreshadow contemplated reasoning.

F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295; Chaplin v Lane (No 2) [2015] TASSC 21, followed.
Aust Dig Magistrates [1122]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Four breaches of the Construction Industry (Long Service) Act 1997 – Limited matters raised in mitigation – First offence – Global fine of $5000 – Sentence not manifestly excessive.

Construction Industry (Long Services) Act 1997 (Tas), ss 6 and 8.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  Mr K Stanton
             Respondent:  Mr D Barclay
Solicitors:
             Applicant:  BDF Law
             Respondent:  Page Seager Lawyers

Judgment Number: [2018] TASSC 27

Number of paragraphs: 136

Serial No 27/2018
File No 1198/2016

BRYDEN HOMES PTY LTD
v TASBUILD LIMITED (ACN 082 066 939)

REASONS FOR JUDGMENT WOOD J

11 May 2018

Bryden Homes Pty Ltd ("the applicant") was prosecuted for breach of the Construction Industry (Long Service) Act 1997 ("the CILS Act"). This Act provides for the administration by TasBuild Limited of a long service scheme for persons engaged in the construction industry. In the first of four charges it was alleged Bryden Homes Pty Ltd failed to supply information in breach of s 8 of the CILS Act. The other three charges each alleged Bryden Homes Pty Ltd failed to register an employee in breach of s 6, each charge relating to an different employee, said to have occurred on or about 26 May 2014 and continuing.
Bryden Homes Pty Ltd pleaded not guilty to the charges. After hearing evidence, and considerable argument, regarding the proper construction of the governing legislation and the implications of the evidence, Magistrate Mollard found the four charges proved. He gave oral reasons and after hearing a plea in mitigation, his Honour imposed a penalty of $5000 on the complaint.
Bryden Homes Pty Ltd appeals conviction and sentence. There are 10 grounds of review concerning conviction and one concerning sentence. There is an application for leave to add three additional grounds. The application is opposed on the basis that the proposed grounds lack merit. TasBuild makes an application to amend the charges, in response to one of the proposed new grounds.
The grounds of appeal raise three main contentions. First, that the operation of the CILS Act is limited by a Commonwealth Act, the Independent Contractors Act 2006 (Cth) ("the IC Act"). In particular, it is contended that the IC Act limits the operation of the State legislation to employment relationships, and excludes it from applying to arrangements with independent contractors. Second, according to the evidence, it was not open to the learned magistrate to be satisfied beyond reasonable doubt that the three workers named in the charges were independent contractors, rather than employees. Third, that the learned magistrate could not have been satisfied that TasBuild had negatived an honest and reasonable mistaken belief on the part of the applicant that the workers were independent contractors. It is convenient to deal with some of the grounds together, and to commence with grounds 4 and 5, which are concerned with the interaction of the IC Act and the CILS Act. Before doing so, it is useful to consider the scheme under the CILS Act and the key provisions of the IC Act.

The scheme under the CILS Act

As mentioned, the CILS Act provides for the administration of a new long service leave scheme for persons engaged in the construction industry. The CILS Act provides that the scheme be established under a Trust Deed. The Trust Deed establishes a fund for the provision of long service leave entitlements to employees in the construction industry in Tasmania. TasBuild has been declared by the Minister under the CILS Act to be the company that is to administer the scheme. An employer engaged in any construction industry covered by the scheme, and who is the employer of an employee covered by the scheme, must register with TasBuild: s 5. An employer engaged in the construction industry must make any payment that TasBuild determines is necessary to fulfil its obligations under the scheme, pursuant to s 5(1)(b). A breach of this provision carries a maximum penalty of 100 penalty units. An employee means a person engaged in the construction industry: s 3. There is an obligation under s 6 for an employer engaged in any construction industry covered by the new scheme to apply to TasBuild for registration of each employee: s 6. An offence contrary to this section carries a maximum penalty of 100 penalty units. Employers are obliged to supply information that TasBuild requires in relation to the scheme: s 8(1)(a), and must provide TasBuild with access to records of an employee's employment when requested to do so: s 8(2)(b). Breach of s 8 carries a penalty of 10 penalty units.

Key provisions of the IC Act

The IC Act relates to independent contractors. It is said that the effect of it is to exclude the State legislation from operating with respect to independent contractors. The key provisions are as follows. Section 7(1), insofar as it is relevant, provides:
"7 Exclusion of certain State and Territory laws
(1) Subject to subsection (2), the rights, entitlements, obligations and liabilities of a party to a services contract are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:
(a)take or deem a party to a services contract to be an employer or employee, or otherwise treat a party to a services contract as if the party were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for a party to the contract to be so taken, deemed or treated);
(b)confer or impose rights, entitlements, obligations or liabilities on a party to a services contract in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on a party to a services contract."
Section 5(1) provides:
"5     Services contract
General meaning
(1)     A services contract is a contract for services:
(a)to which an independent contractor is a party; and
(b)that relates to the performance of work by the independent contractor; and
(c)that has the requisite constitutional connection specified in subsection (2).
Note:    Conditions or collateral arrangements relating to a services contract may be taken to be part of the services contract: see subsection (4)."
It should be noted that none of the arguments on appeal, or in the court below, touched on the issue of a "constitutional connection" and it was not addressed as an issue in the evidence. I turn to address the arguments pressed on appeal.

Grounds 4 and 5: The interaction of the CILS and the IC Acts

In relation to the single charge contrary to s 6 of the CILS Act, one of the issues at the hearing was whether the IC Act limits the operation of that provision to employees. In relation to the three charges asserting a breach of s 8(1)(a) of the CILS Act, there was no dispute that a request for information had been made on 23 September 2014, and that the applicant had not supplied the information by the time the complaint was heard. Again, the issues here included whether the IC Act limits the effect of s 8 so that it does not apply in respect of information sought about independent contractors. It was maintained that the workers, the subject of the request for information, were independent contractors. The learned magistrate held that that s 7 of the IC Act did not affect the operation of ss 6 and 8 of the CILS Act.
His Honour referred to the CILS Act and accepted the proposition that it was meant to apply to all employees, as broadly defined. His Honour accepted that all employees "must be registered so as to enable the complainant to be able to assess, inter alia, whether the particular worker is an employee or a contractor."
His Honour went on to consider s 7 of the IC Act:
"Now, section 7 – the rights, entitlements, obligations and liabilities of a party to a services contract are not affected by law of a state to the extent that the law would, (a) take or deem a party to a services contract to be an employer or employee for the purposes of a law that relates to one or more workplace relations matters. (b) for our purposes, I don't think adds anything to the discussion.
The sections of the construction industry long service leave Act, 1997, and rules with which we're concerned are, in a sense, partly procedural in that they are there to create a system by which information must be provided so as to enable a judgement to be made about whether – to borrow words from section 7 – a party is, or has been an employee or employer, or whether they are parties to a services contract to which section 7 may apply."
Further:
"Insofar as the complainant has taken or deemed the defendant to be an employer of the workers which, arguably, at this point, it has not, it was for the purpose of allowing it to assess and not to, quote:
'Take or deem a party to be an employee or employer, or otherwise treat a party as if they were'." [His Honour was there referring to the language of s 7 of the IC Act.]
Grounds 4 and 5 of the notice to review assert error in his Honour's reasons and conclusions, and have implications for all four charges.
Grounds 4 and 5 of the review are as follows:
"4Failing to hold that s 7(1) of the Independent contractors Act 2006 (Cth) had the effect that the obligations and liabilities of the Applicant were not affected by ss 3, 6 and 8 of the Construction Industry (Long Service) Act 1997 (Tas) and the New Scheme.
5Holding that s 7(2) [sic, s 7(1)] of the Independent Contractors Act 2006 (Cth) was not relevant because:
(i)the provisions of the Construction Industry (Long Service) Act 1997 (Tas) were procedural to enable a judgment to be made about whether there is or has been an employer or employee or parties to a services contract;
(ii)insofar as the complainant has deemed the Applicant to be an employer that was for the purposes of allowing it to assess the treatment of a party to a contract as if it was an employer or employee."
On review, it was argued by the applicant that the approach of the learned magistrate was erroneous. The main arguments were as follows:
"aAssuming that the obligations to provide information and register employees are procedural and have the purpose of enabling a judgment to be made about whether a party is in an employment relationship or not [which is not a relevant inquiry under the CILS Act or the new scheme although the information might enable other judgments to be made about matters relevant to the operation of the scheme], those provisions provide a means for a party to a services contract to be taken, deemed or otherwise treated as if they were an employer or employee [s 7(1)(a) of the IC Act] or provide a means for rights, entitlements, obligations or liabilities to be conferred or imposed on a party to a services contract [s 7(1)(b) of the IC Act].
bSection 7 does not address whether or not the respondent takes or deems the applicant to be an employer or employee. The relevant inquiry is whether the effect of ss6 and 8 of the CILS Act take, deem or treat a party to a services contract as an employer or employee."
The reference to "means" is to part of the definition in s 7(1). It was submitted that the effect of the IC Act is to exclude a party to a services contract from the operation of both ss 6 and 8, effectively limiting their operation to parties to an employment relationship. It was argued that the definition of "employee" in s 3 of the CILS Act and the "Rules", which I will return to discuss, inevitably include workers who are independent contractors. Therefore, the CILS Act takes, deems or otherwise treats the parties to a services contract as if they were an employer or employee. Further, the CILS Act affects the liabilities of such a party, including the liability to pay a fine for failure to comply with any such obligations. The obligations under ss 6 and 8 and liabilities to pay a fine are imposed on parties to a services contract. Section 7(1)(a) of the IC Act would operate so that the CILS Act does not affect the obligations of a party to a services contract, including the obligation to provide information and to apply to register. Section 7(1)(b) of the IC Act would have application to those obligations and liabilities as well.
The contentions moved to a different point which is that the IC Act would have application where as a matter of fact the parties were parties to a services contract. It was argued that noting that the effect of s 7(1) of the IC Act was to exclude from the CILS Act, parties to services contracts, consideration was given to whether the workers in question were independent contractors. This factual question is fully dealt with in relation to grounds 1, 2 and 3.
TasBuild's argument is that s 7(1) of the IC Act is only engaged if the evidence exposes that the relationship is that of principal and independent contractor. Then the question would arise whether the State law nevertheless deems the contract to be an employment contract. If so, the effect of s 7(1) would be that the State law has no effect. In short, s 7(1) of the IC Act applies if there is evidence that establishes the circumstances contemplated by that section. Here, s 7(1) is not engaged because of a lack of evidence that the workers were independent contractors.
The argument squarely raises the question of whether s 7(1) is engaged if the State Act applies to a worker who potentially may be an independent contractor. The applicant argued further to this issue that there was an onus on the prosecution to prove that s 7(1) of the IC Act did not apply, as the obligations in the CILS Act only come into play if the effect of the IC Act is excluded. This means that the prosecution must establish beyond reasonable doubt that the workers are not independent contractors.
The submissions raise a question of statutory interpretation, requiring consideration of the effect of the CILS Act and the meaning of s 7(1) of the IC Act. First, it is useful to consider the ambit of the CILS Act, and the provisions in question. Section 6 provides in part:
"6   Registration of employees
(1)   An employer engaged in any construction industry covered by the new scheme must apply to the company for registration of each employee of the employer.
Penalty:  Fine not exceeding 100 penalty units.
(2)   The company is to register a person if, in its opinion, the person is eligible for registration.
...".
Section 8(1) is in terms that:
"8    Records, returns and information
(1) An employer or a person liable to pay a levy under section 7 is to —
(a)   supply the company with any records or information the company requires in relation to the new scheme; and
(b)   make any returns the company requires in relation to the new scheme."
The definition of "employee" in the CILS Act is very wide and, as mentioned earlier, is simply:
"employee means a person engaged in the construction industry".
The definition of "employer" is:
"employer includes a person who is self-employed".
By cl 5 of the Trust Deed, the Rules are to be construed as part of the Deed. Trustees may make rules regarding the administration of the "new scheme". The Rules define "employee" as:
"… a person who is, or has been, employed in Relevant Employment and includes any person engaged whether:
(i)under a contract of service;
(ii)under a contract that is wholly or principally for the labour of the person;
(iii)under a contract, whether or not a contract of employment, by any labour hire agency or group training scheme."
"Employer" is defined in the Rules as "in relation to any Relevant Employment in which an employee is or has been engaged, means his or her employer in that employment". Again, there is a nexus with an employee, drawing in the broad meaning of employee, which ignores the distinction with independent contractors.
"Relevant Employment" is also defined in the Rules and means:
"… employment on a permanent or casual basis of an employee by an Employer for the purposes of the carrying out by the employer of any Work in the Construction Industry on the site of the Work or, if he is not employed on the site of the Work, is employed by that employer in making, preparing, storing, or transporting goods or material for use in that Work, but does not include:
(i)employment of an employee by an employer who is not engaged in the Construction Industry in the maintenance of plant and equipment notwithstanding the nature of the work done by the person is similar to Work in the Construction Industry;
(ii)a period of employment of less than one full day's duration."
"'Work' means work carried out in the Construction Industry."
The effect of the CILS Act and the Rules is that a person engaged in the construction industry under a contract that is wholly or principally for the labour of the person is an employee.
In relation to s 6 of the CILS Act, the sphere of its operation is wide. In essence, an employer engaged in any construction industry covered by the "new scheme" must apply to TasBuild for registration of each employee of the employer. The term "employee" would invoke the expansive term in the CILS Act. Clearly, "employee" in the Act covers employees in the traditional common law sense, and also independent contractors, parties to a services contract, within s 7(1) of the IC Act.

Section 8(1) of the CILS Act also has application in circumstances where it may not concern a party to a services contract. An employer may face an obligation to provide information, yet not be a party to a services contract.
I cannot see how either section of the CILS Act, viewed in a vacuum, takes or deems a party to a services contract to be an employer or employee, or falls within s 7(1)(a). Quite simply, the section will apply in circumstances where there is no party to a services contract. The applicant relies on the words in s 7(1)(a) and (b) in parentheses, that the information sought provides a "means" for a party to the contract to be taken, deemed or treated as if it were an employer or employee, or a "means" for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on a party to a services contract. However, again it depends on the particular case and whether the information sought relates to a party to a services contract.
Whether there is a party to a services contract depends on the particular circumstances. It will depend on the terms of the contract. There may be no collision at all between the effect of s 7(1)(a) or (b) of the IC Act and ss 6 or 8 of the CILS Act.
As for the applicant's argument that s 7(1) of the IC Act applies where there is potentiality for a particular party to be a party to a services contract, that is an argument about the meaning of s 7(1) of the IC Act. The task of statutory construction must begin with a consideration of the text itself, the words of s 7(1); the language employed is the surest guide to legislative intention: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47]. As stated in the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ, in the same paragraph, footnotes omitted:
"The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy".
See also CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2, 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. There is a statutory requirement to prefer a construction that would promote the purpose or object of the legislation in question: s 8A of the Acts Interpretation Act 1931 (Tas).
Beginning with the words of the section, it can be seen that the focus of the section is "a party to a services contract". The section, in its opening words, refers to "the rights, entitlements, obligations and liabilities of a party to a services contract are not affected ...". The words clearly convey that "a party to a services contract" is essential to the application of s 7(1). Nothing in the section suggests otherwise. The words are to be contrasted with language that would suggest potentiality. If the evidence discloses that a party to a services contract is affected by the CILS Act, then s 7(1) would be invoked. The limb in s 7(1)(a) which extends the section to a State law that "provide a means for a party to the contract to be so taken, deemed or treated", or s 7(1)(b) which extends the section to a State law that "provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on a party to a services contract" do not assist the applicant. They are also anchored to the essential existence of "a party to a services contract".
Having regard to the purpose of the IC Act, it seems improbable that it was intended to undermine the efficacy of State laws that would extend to individuals or organisations who may or may not be a party to a services contract. It would transpire that included in such a class would be some who were not in fact parties to a services contract, yet they would be excluded from benefits provided by State legislation. The consequence of the applicant's argument would be significant. It would deprive State legislative provisions of their effect which relate to the rights, entitlements, obligations and liabilities of a worker in a case where the worker may only potentially be a party to a services contract. Here it would deprive the CILS Act of much of its beneficial purpose and its effectiveness in instances where it was, as yet, unclear whether the worker was a party to a services contract. Other State legislation would similarly be affected. This interpretation does not, in any way, advance the purpose of the IC Act. It is beyond its scope, described in the long title as "An Act relating to independent contractors, and for related purposes." It is beyond its objects described in s 3 of the IC Act:
"Objects of this Act
(1) The principal objects of this Act are:
(a)to protect the freedom of independent contractors to enter into services contracts; and
(b)to recognise independent contracting as a legitimate form of work arrangement that is primarily commercial; and
(c)to prevent interference with the terms of genuine independent contracting arrangements.

(2) The Act achieves these objects, principally, by providing for the rights, entitlements, obligations and liabilities of parties to services contracts to be governed by the terms of those contracts, subject to:
(a)the rules of common law and equity as applying in relation to those contracts; and
(b)the laws of the Commonwealth as applying in relation to those contracts; and

(c)the laws of the States and Territories as applying in relation to those contracts, other (in general) than any such laws that confer or impose rights, entitlements, obligations or liabilities of a kind more commonly associated with employment relationships."

The consequences are a telling consideration against an argument that runs contrary to the ordinary and natural meaning of the text. I do not consider that any further consideration need be given to the argument. It is rejected.
I return to the grounds of review. Ground 4 is not made out. The learned magistrate was correct to hold that s 7(1) of the IC Act did not apply, and that the applicant's liabilities under the CILS Act were unaffected by the IC Act. I arrive at that conclusion for different reasons than the learned magistrate. My reasoning path is with reference to the evidence and that s 7(1) in this particular case was not enlivened. My reasons will be seen in the context of grounds 1, 2 and 3. The learned magistrate took a different approach which meant that s 7 of the IC Act could never apply to ss 6 and 8, as they are outside its reach, concerned with assessment and enabling a judgment about whether there is an employer and employee relationship or parties to a services contract. This reasoning path is at odds with the interpretation of s 7(1) that I have adopted and seems at odds with the additional aspects of s 7(1)(a) and (b) in parentheses drawing in legislation which provides a "means" for a party to a services contract to be treated as an employer or employee, or a means for rights, entitlements, obligations or liabilities in relation to workplace relations to be imposed on a party to a services contract. It is noted that long service leave is a workplace relations matter. I find error in the reasoning, but the conclusion that s 7(1) of the IC Act is not engaged in this case is correct. Accordingly, ground 5 discloses error, but will not result in the upholding of the motion to review because the conclusion was correct.
An argument that underpins the applicant's contentions in relation to these grounds of review, and also other grounds, is that the prosecution has the onus of disproving the application of s 7 of the IC Act, beyond reasonable doubt, once a suggestion that one of the persons falling within ss 6 or 8 of the CILS Act is a party to a services contract is raised. This argument was not developed, was not supported by authority, and I did not have the benefit of submissions to the contrary. I have reached a view that this argument should not be taken as correct. The way in which s 7(1) of the IC Act operates to preclude the application of State legislation is, again, a matter of statutory interpretation. It is a matter that concerns the reach of the Commonwealth Act and its impact on State legislation. If s 7(1) is to operate as contended for by the applicant, then that should be apparent from the terms and purpose of the IC Act. However, there is no indication in the IC Act that it is intended to operate in that way. Rather, as I have said, the trigger for its operation is the existence of a party to a services contract. Otherwise, there is no collision with the CILS Act. Section 7(1) is enlivened by a finding of fact that there is a party to a services contract. In a prosecution, if after hearing the evidence regarding a charge under the CILS Act, a judicial officer made a finding that an employee was "a party to a services contract", then s 7(1) would have application. The prosecution would not need to disprove s 7(1) beyond reasonable doubt but, equally, the defendant would not have an onus of proof. If evidence is advanced, and such a finding was made, the consequence would be that the CILS Act would have no effect, and there would be no jurisdiction to find the charges proved. This underlying argument is also rejected.
Grounds 4 and 5 fail.
It is convenient to now deal with grounds 1, 2 and 3 which are concerned with findings of fact made by the learned magistrate with respect to the application of s 7(1) of the IC Act.

Grounds 1, 2 and 3: "employees" or independent contractors

Grounds 1, 2 and 3 all attack the finding of the learned magistrate that s 7(1) of the IC Act did not apply, and that the workers named in the charges were employees, and not independent contractors. The grounds assert error in the following terms:
"1Finding that the evidence adduced by the respondent proved the complaint beyond reasonable doubt.
2Finding beyond reasonable doubt that Shayne Bayes, Jack Russell and Wayne Temple respectively were employees of the applicant.
3Failing to hold that the applicant and Shayne Bayes, Jack Russell and Wayne Temple respectively were parties to services contracts within the meaning of s 7(1) of the Independent Contractors Act 2006 (Cth)."
The learned magistrate's reasoning on this point commences with an interpretation of the CILS Act and s 7(1) of the IC Act set out above at [10] and [11]. His Honour noted that if he was wrong in his construction of s 7, and that it did not apply, he needed to consider TasBuild's submissions that the workers are employees anyway. His Honour accepted that was correct. His Honour then turned to the evidence regarding this point and gave reasons for rejecting the evidence of Mr Dennis Hall, a director of Bryden Homes Pty Ltd, which had been relied upon by the applicant to show that the workers were in fact independent contractors:
"Now, the evidence. The evidence of Mr Hall was not persuasive. First, he did not adequately confront the facts of, and inferences to be drawn from, the fact the workers' names and contact details were listed for customers use on the company's website. The point favours that they were employees at least then, and count 1 relates to required information from 2004 for the creation of the website.
Second, his evidence about the arrangements for the workers to ring to ask if the company had work for them and that he would then offer it would, if true, be clumsy, inefficient and unreliable, and I do not believe it.
Third, his evidence that he did not keep a record of hours worked is to be doubted. The workers had never quoted for the work. Nothing was in writing. The invoices were for labour, which is significant in itself, but makes a situation where, if he is to be believed, his company was, in effect, at their mercy.
Third, his evidence about his dealings with the workers was vague and lacking detail. His memory was poor and he failed to give an account which examined the details of facts which would give insight into the status of each worker from time to time.
Fourth, his evidence about contacts with the ATO and HIA lacked particularity and the relevant witnesses weren't called. This relates to the defendant's evidentiary onus re the mistake of fact defence.
Fifth, on his evidence it would be very difficult for him to establish a price with the company's customers because he would never know what the workers were going to charge, how long they would take if their work was not at his direction."
The learned magistrate accepted as correct par 29 and following of TasBuild's written closing submissions. Those submissions were that, according to the indicia set out in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 by Mason J at 24 and Wilson and Dawson JJ at 35-37, the workers were employees because:
"33The gravamen of the evidence is that the workers provided their own tools (which is standard industry practice noting that as referred to in evidence workers are paid a tool allowance) but that large tools are provided by the Defendant. Further the defendants invoice the Defendant for hours worked and rarely invoice for any materials used by them in the course of their work. They work available hours at the place directed by the Defendant. It may be inferred that they do what work they are told to do. The capacity to control the manner of work must be limited, however it is submitted that the time, place and what work is done is determined by the Defendant. As such the ability to exercise control over the workers is significant notwithstanding that the need to exercise actual control is not great.
34It has been said that the essence of a contract of service (employment) is the supply of work and skill of a man."
His Honour then went on to set out his conclusions, and the matters he was satisfied of beyond reasonable doubt:
"About the prosecution evidence, little is required to be said. It is substantially unchallenged. It is correct that prosecution evidence that the workers were employed went unchallenged – see paragraph 51. The evidence in the affidavits can only be described as comprehensive and it stands substantially unshaken, though I note the errors conceded by Mr Atkins. I do not intend to wade through all the requirements of the matters for formal proof. I conclude that every essential element has been proved beyond reasonable doubt and (a) there was no reasonable mistake and, (b) any mistake was one of law.
The defendant breached section 8 on or about the 21^st of August 2014 and since. It failed to register employees, all three of the workers, on or about the 26^th of May 2014 and since.
Complaint is proved."
There were forms in evidence relating to each worker described as "Subcontractor Details Forms". The contents of the Forms were considered in the written submissions, and said to be indicative of the status of the workers as employees, not independent contractors. Evidently, his Honour accepted these submissions as correct as well.
It is apparent from ground 2 of the notice of review that it is assumed that the learned magistrate was required to find beyond reasonable doubt that the workers in question were employees, as distinct from independent contractors. However, this is not an element of the offences said to have been committed. The offences are contrary to ss 6 and 8 of the CILS Act, these offence provisions are set out above at [19] and [20].
As I have determined, s 7 of the IC Act does not require the status of workers as independent contractors to be disproved beyond reasonable doubt. The section operates if the positive state of affairs exists that there is "a party to a services contract". The grounds of review assert an error of fact and can only succeed if error is shown. The question, in light of the conclusions I have reached with respect to grounds 4 and 5, is whether the learned magistrate ought to have found, given the evidence before him, that all three workers were independent contractors? The submissions for the applicant were laid on the shaky foundation that TasBuild had an onus to negative beyond reasonable doubt the existence of a services contract in order for the obligations and liabilities under the CILS Act to be engaged. Attention was drawn to deficiencies in the evidence as to the workers being employees:
·     The terms of the contract between the applicant and the workers were insufficiently defined by the evidence to enable a determination about whether the contract was a services contract.
·     The evidence of other factors as to the relationship between the applicant and the workers was incomplete and equivocal.
·     Even allowing for the rejection of Mr Hall's evidence, the prosecution evidence does not justify the conclusion that the workers were employees.
·     It was submitted for the applicant that those matters do not exclude the workers being independent contractors.
Further, it was submitted that consideration of all the indicia set out in Stevens v Brodribb, indicate that the learned magistrate should have entertained a doubt about the status of the workers as employees. It was not open to his Honour to be satisfied beyond reasonable doubt that they were employees, and not independent contractors.
As I have said the submissions address the wrong question. The correct question is whether the only reasonable finding open on the evidence was that the workers were independent contractors.
There are a number of indicia to consider in determining whether the relationship between the applicant and each of the three workers was one of employer and employee, or one of principal and independent contractor: Stevens v Brodribb, per Mason J at 24. The degree of control that the applicant exercised over the worker, moreover the right to exercise it, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee are all criteria that bear on the question.
The evidence relied upon by TasBuild was evidence of Mr Hall. It is apparent from the reasons of the learned magistrate that the evidence of Mr Hall was regarded as unpersuasive, his evidence that the three workers rang to ask if the company had work was not believed, and his evidence that he did not keep a record of their hours work was doubted. In other respects, Mr Hall's evidence-in-chief in relation to Mr Wayne Temple was to the following effect:
·     Mr Temple bills him at the end of the month.
·     The company uses Mr Temple the majority of the time.
·     Mr Temple has been working with the company in excess of 10 years.
·     The company provides Mr Hall with the large tools like jackhammers.
·     Mr Temple provides his own hand tools – small tools like a carpenter would use.
·     The work he did varied from digging to carpentry, to setting up slabs, handyman type person.
·     He works for others on the weekends – he has his own machine and excavator and truck.
Mr Hall gave evidence in cross-examination that Mr Temple does not provide his own materials, his invoices charge for labour only. The Subcontractor Details Form for Mr Temple was filled out by Mr Hall's wife based on what she thought the working relationship was.
In having regard to the indicia, some of the answers set out in Mr Temple's Subcontrator Details Form are less informative than others. The answers may merely reflect Mrs Hall's expectation about, or perception of, aspects of the relationship on matters that do not arise, and do not actually reflect the nature of the relationship, or Mr Temple's perception. An example applying to all three workers is the question about whether the worker is responsible for repairing any defects with the work if a customer is unhappy. Also, the fact that the applicant did not pay superannuation contributions or workers compensation insurance for any of the three workers may be based on an erroneous belief about the obligation to do so. I do not find these factors to be particularly helpful.

In relation to Mr Jack Russell, Mr Hall's evidence, with the exception of those aspects of his evidence not believed or doubted by the learned magistrate, is as follows:
·     Mr Russell similarly invoiced the applicant for labour, but would also on occasion bill for materials;
·     The applicant commenced "contracting" with Mr Russell 10 years ago.
·     Mr Hall would use Mr Russell on average three months a year.
·     When asked about the last five years, Mr Hall gave evidence he would use Mr Russell four or five months of the year on average, and then said, "sometimes he wouldn't – he'd work maybe two months maybe, on average".
·     The rest of the time, Mr Russell "does jobs for other people and goes on holiday".
·     "[Mr Russell] just bills me whenever he feels like it".
·     They would agree beforehand what Mr Russell's rate was for a particular project.
·     Mr Russell has a full set of tools and Mr Hall does not provide Mr Russell with any tools.
·     Mr Russell recently changed to a partnership and since then there has been no change in the terms of engagement with Mr Russell.
Mr Russell's Subcontractor Details Form was substantially similar to that of Mr Temple, noting that Mrs Hall completed Mr Temple's form and indicated Mr Temple was "self-employed", whereas Mr Russell indicated that his "employer" was "Bryden Homes". I do not regard his reference to "employer" as significant.
Mr Hall's evidence-in-chief regarding Mr Shayne Bayes included the following:
·     Mr Bayes began work with the applicant as an apprentice.
·     He worked with Mr Hall for a couple of years after that.
·     About 6 years after Mr Bayes started, he approached Mr Hall and said he would like to be self-employed, but would still be available to do work if anything came up.
·     His hourly rate went up "which included all the entitlements he was getting as an employee".
·     Mr Bayes had not worked for Mr Hall in 12 months.
·     The previous year, Mr Bayes worked for Mr Hall for 10 months of the year.
·     They would agree to a rate, but Mr Hall was not sure about the details of it.
·     Mr Hall would receive invoices from Mr Bayes between every two and six weeks.
·     Mr Hall paid "entitlements" up to when Mr Bayes became self-employed.
·     Mr Hall did not provide him with tools.
Mr Bayes indicated in his Subcontractor Details Form that he was paid an hourly rate, that he did not determine his own hours of work, that he could not pay another person to work instead of him, and that the applicant made superannuation contributions for him. Mr Hall gave evidence in cross-examination that the answer about superannuation was incorrect. It was clear from the Form that Mr Bayes had worked for the applicant for extended periods. In response to the question regarding whether Mr Bayes was free to accept other work during the period of his contract, Mr Bayes ticked both the yes and no box. He ticked both boxes for the question whether he was responsible for repairing defects with the work if a customer/client was unhappy was unclear, noting on the form "This has never happened".
The matters set out at par 33 from TasBuild's submissions at [42] above, adopted by the learned magistrate are not said to be erroneous findings. These are findings that weigh in favour of an employment relationship. They suggest control over the work to be performed, and the hours. The provision of tools or large items of equipment by the applicant in the case of Mr Temple and Mr Bayes suggest that they are employees. The evidence suggests an expectation that Mr Temple and Mr Bayes are available to work Mondays to Fridays, and therefore indicates an obligation to work. The picture is less clear in this regard in relation to Mr Russell. For all workers, remuneration was for labour and hours worked, and rarely for materials. The finding of the learned magistrate that "they work available hours at the place directed by the Defendant and that it may be inferred that they do the work they are told to do" applies to the three workers. The fact that they work alongside employees of the business, in a like matter to them, also suggests they are employees. Other indicia such as that the workers invoiced the applicant for work done, that in the case of Mr Temple, he has had substantial time off under his own accident/sick leave policy, that income tax is not deducted, and that, at least, Mr Temple and Mr Russell could pay another person to work instead of them, are indicia which suggest a principal–independent contractor relationship. Whether either of them had in fact ever delegated his work to another person may have been informative, but was not apparent on the evidence.
The finding that Mr Bayes was an employee was strongly supported by the evidence. The picture is not particularly clear in relation to Mr Temple and Mr Russell, but I find that it was reasonably open on the evidence for the learned magistrate to have found that they were also employees and not independent contractors. It is worth noting that in a case where the evidence is unclear, the evidence presented is unpersuasive, or there is a paucity of evidence and, as a result, no finding can be made that the worker in question is an independent contractor, s 7(1) of the IC Act would not be engaged. Certainly, the learned magistrate was not obliged to find on the evidence before him that the workers were independent contractors. Indicia suggesting an employment relationship can be gleaned from the Subcontractor Detail Forms in each case. The evidence of Mr Hall suggested to the contrary in some respects, but his evidence was found by the learned magistrate to be unpersuasive, and that view is not said to be erroneous. These three grounds of appeal fail.

Proposed ground of review: offence not known to the law

The applicant seeks the Court's leave to add a new ground of review in terms that:
"The offence with which the applicant has been charged is not known to the law".
The offence referred to is contrary to s 6 of the CILS Act and concerns charges 2, 3 and 4. Charge 2 provides:
"Count 2 Fail to register an Employee in breach of section 6 of the Construction Industry Long Service Act 1997
Date of alleged offence On or about 26 May 2014 and continuing
ParticularsBryden Homes Pty Ltd, an employer which carries out work within the construction industry as defined by the Construction Industry Long Service Act 1997, has failed to register Mr Shayne Bayes, an employee of Bryden Homes Pty Ltd and continues to fail to register Mr Bayes with TasBuild Ltd in breach of section 6 of the Construction Industry Long Service Act 1997."
Charges 3 and 4 are in precisely the same terms, except for the name of the employee in question, Jack Russell (charge 3) and Wayne Temple (charge 4).
As stated, the section of the Act alleged to have been contravened is s 6. The relevant part of s 6 is:
"(1) An employer engaged in any construction industry covered by the new scheme must apply to the company for registration of each employee of the employer."
The applicant accepts that it did not apply to register the three workers named in the complaint, but argues that the charges were flawed for the following reason. The complaint does not allege a failure to make an application, it alleges a failure to register the workers and that is not an offence known to the law. More specifically, it is not an offence under s 6 of the CILS Act. Registration is an act that only TasBuild can carry out, not the applicant. The applicant could not be guilty of a failure to register, only a failure to apply for registration. Accordingly, counts 2, 3 and 4 allege an offence not known to the law.
TasBuild submits that while there is force in the submission that the particulars are incorrect, the issue was not raised at the hearing before the learned magistrate, and if it had been raised it would have been cured by simple amendment. TasBuild would have made an application to amend the charges, and would have been permitted to do so. If it is the case that at the hearing, the justice of the case would have dictated that the amendment be allowed by the learned magistrate, then that amendment should now be able to be made. Otherwise, a tactical decision can be made at a hearing not to make a no case to answer submission with a view to raising it on appeal, with the advantage of preventing the prosecution from obtaining an amendment.
It was submitted that at the hearing the learned magistrate would have made the amendment. TasBuild submitted that the applicant could not be prejudiced or embarrassed by the amendment.
The applicant made a number of submissions, in reply, that the amendment sought by TasBuild ought not be made:
·     The offence was not a continuing offence and the complaint was filed one day inside the time limit of 6 months provided for in the Justices Act 1959, s 26.
·     The amendment creates a new offence, it is quite different and not the same "pith and substance" as the present charge: Olver v Dix [1999] TASSC 1.
·     It would be unjust to allow an amendment to the complaint, given the nature of the amendment and that, effectively, a new offence would be created outside the expiry of the statutory time period for the bringing of a prosecution: Olver v Dix at [22].
Before considering the question of amendment to the charges, I need to consider the implications of the way the particulars have been drafted. It is not every defect in a charge that warrants amendment. Generally speaking, objections may not be taken to a complaint in respect of defects in substance or in form. It is only in the exceptional case that falls within s 31(2) of the Justices Act that would enable a complaint to be dismissed if not amended, and in the less exceptional category of cases set out in subs (3) may amendments be made. Section 31 provides, in part, as follows:
"31     Irregularities and amendments
(1)   An objection shall not be taken or allowed to a complaint in respect of—
(a)   an alleged defect therein, in substance or in form; or
(b)   a variance between it and the evidence in support thereof.
(2)   Notwithstanding the provisions of subsection (1) , where —
(a)   a complaint fails to disclose an offence or matter of complaint; or
(b)   the defendant appears to have been prejudiced by any defect or variance referred to in that subsection —
the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.
(3)   If it appears to the justices that the complaint —
(a)   fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b)   ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect —
the justices may amend the complaint upon such terms as may be just."
In my view the complaint does not "fail to disclose an offence" within the meaning of the Justices Act, s 31(2)(a) or (3)(a). It is apparent from the charges that the section contravened is a breach of s 6(1), even though the subsection is not referred to. Breach of subs (1) is the only offence created by s 6. Admittedly, the particulars do not identify correctly that the obligation is to apply to TasBuild for registration. However, the particulars are to be read with the section said to have been contravened. Noting that an application is the only step that an employer is required to take under s 6, the nature of the applicant's breach is clear enough. The language is a reference to the obligation of an employer under s 6(1) expressed in loose terms, but it is unambiguous. The particulars could not be read in any other sensible way. The charges disclose an offence.
A charge may be amended in circumstances where it is "otherwise defective". Here, the drafting is less than ideal, but I do not regard the complaint as defective in a material way, assuming it qualifies as defective. There is no assertion of prejudice arising from the wording. It has not been suggested that at the hearing the applicant was misled about the allegation being an obligation to apply to register and a breach in that respect.
It is not a case where the magistrate ought necessarily have amended the particulars as a matter of justice under s 31(3)(b). However, it would be ideal if the particulars correctly identified the breach as a failure to "apply", although no consequences would follow if the order is not made. I will hear from the parties, and consider making an order amending the charges to add the words "to apply" before "to register" appearing in charges 2, 3 and 4.
The arguments in opposition to the application to amend the complaint, that the offence is not a continuing offence, do not arise in relation to this ground, given my conclusion that the complaint is not defective in a way that requires amendment, and does not fail to disclose an offence. This proposed ground of review lacks merit and accordingly, the application to amend the notice to review will not be granted.

Proposed new ground: complaint out of time

At the hearing of the motion to review, counsel for the applicant sought to add another ground of review:
"The complaint was not made within the six months' required by s26 of the Justices Act".
It had been assumed for the purpose of the earlier proposed new ground of review, that the complaint had been filed within six months of the date of the alleged offence by just one day. An argument advanced on this ground, on an alternative basis, was that charges 2, 3 and 4 were not made within time, the six month period under the Justices Act, s 26. Attention was focussed on the effect of s 9B(2) of the CILS Act. This subsection provides:
"(2) A failure to register an employee in accordance with section 6 is taken to have occurred at the time at which the company becomes, or ought reasonably to have become, aware that the failure has occurred."
Mr Christopher Atkins, Chief Executive Officer of TasBuild, swore an affidavit, tendered before the learned magistrate, which provided that on or about 26 May 2014, he formed the view that the particular individuals, the subject of the charges, were employees for the purposes of the CILS Act. This date was within 6 months of the making of the complaint, the complaint having been made on 25 November 2014. However, it was argued that other evidence before the learned magistrate at the hearing disclosed that TasBuild ought reasonably to have become aware that the failure had occurred before 26 May 2014, and therefore six months had expired. It was argued that that had significance because the offence under s 6(1) is not a continuing offence. Therefore, charges 2, 3 and 4 were out of time.
The argument relies on the date when knowledge is attributed to TasBuild, rather than TasBuild's actual knowledge. The applicant submits that the evidence discloses that TasBuild ought to have become aware of the failure before 26 May 2014. In particular, there was reliance on an affidavit of Mr Atkins that referred to a letter dated 26 May 2014 sent to the applicant, and a request to complete enclosed employee registration forms relating to the employees in question. The letter stated: "Based on the historical information we have on file and the information obtained during the above meeting I believe that the three persons employed by your company namely Shane Bayes, Wayne Temple and Jack Russell are employees for the purposes of the above Act and Rules." The date of that meeting was 1 May 2014. It was submitted that as at 1 May 2014 (at the latest) TasBuild had all the information it required to know that these people had not been registered and that they were employees. The date of 1 May 2014 falls outside 6 months of the date of the complaint. It was argued that constructive knowledge existed even before then. The applicant also relied on an affidavit of Darren Harpham, a field officer for TasBuild, which provided:
"Following my discussions with Messrs Bayes, Russel and Temple, in early March 2013, I met with Dennis Hall, one of the directors of the Defendant, to discuss the employees, including Messrs Bayes, Russel and Temple, which the Defendant had not applied to the Complainant to register."
It was contended that even though this point about jurisdiction was not raised at the hearing, the onus is on the prosecution to establish that the complaint is within time and a time limit cannot be waived: R v Cooling [1990] 1 Qd R 376 at 378.
TasBuild submitted that the offence involving a failure to register is a continuing offence, the obligation to register particular workers having not been complied with, and so the time limit of six months had not expired: R vBarelli's Bakeries [1965] VR 615; R v Industrial Court Ex Parte Circle Realty Pty Ltd [1980] VR 459 at 462. Further, it was argued that the evidence relied upon by the applicant merely showed the time when TasBuild formed the view that the applicant should register the workers. That is not the same as the time at which the company becomes aware of a failure to register an employee, for the purposes of s 9B. The affidavit of Mr Atkins shows that the reference to a date when TasBuild had not registered the workers was 13 June 2014 when he wrote to Mr Hall. It was submitted that the knowledge of Mr Harpham, as a field officer, cannot be attributed to TasBuild as part of its corporate knowledge. By contrast, Mr Atkins, as the Chief Executive Officer, of TasBuild can be assumed to be the mind of the company. It was submitted that, noting Mr Atkins' affidavit, referred to above, 26 May was the time when TasBuild formed the view that the applicant should register the workers, and 13 June was the date that TasBuild was aware that the applicant had not registered the employees. Presumably this was the day that TasBuild's records were checked and it was found that no application had been made to register. It was contended that 13 June 2014 was the relevant time for the purposes of s 9B.
It was submitted for the applicant, in reply, that s 9B involves knowledge or constructive knowledge as to the fact that the workers had not been registered, and that the workers were employees. At least TasBuild ought reasonably to have been aware that the applicant had not applied to register the three workers as at March 2013. There was reliance on Mr Harpham's description in his affidavit of the three workers in question as "employees", and that it should be inferred that he had that knowledge in March 2013. It was argued that as a field officer he was a person of sufficient status for his knowledge to be that of TasBuild. In any event, the affidavit of Mr Atkins demonstrated constructive knowledge of the matters in s 9B as at 1 May 2014.
The argument presented by the applicant hinges on the offence not being a continuing offence, and this ground of appeal is resolved by a determination of this contention. However, I wish to say something about the detailed submissions made regarding the evidence, and whether it demonstrates constructive knowledge of the matters in s 9B before 26 May 2014. This issue was not raised at the hearing. Mr Atkins was not cross-examined about his assertion that he acquired knowledge of the relevant matters on 26 May. Matters of evidence bearing on constructive knowledge and agency were not explored. This is a new issue raised for the first time on appeal. While a defendant's position is not binding, the onus on the prosecution to prove a complaint is not outside a time limit is enlivened once the point is raised. In R v Cooling, Thomas J (Ambrose J concurring) stated at 378-379 that once a statutory limitation point is raised "it is the duty of the court to give effect to it". The matter has to come to the Court's attention, see R vCooling at 378. In cases where the point is raised but the evidence is unclear or contentious, a hearing would extend to those matters of evidence. Procedural fairness would require that each party have the opportunity to challenge evidence for the opposing party, and present evidence and make submissions. As a point on which the prosecution has an onus of proof, once raised, the evidence may be more extensive than that involved in establishing the elements of an offence. It follows that TasBuild need not be confined to evidence at the hearing as to the elements of the charges. If the issue had been raised by the applicant at the hearing, TasBuild would have had the opportunity to address this discreet point and produce evidence with respect to it.

The submissions I have heard assume that, for the purposes of this review, the parties are confined to the evidence at hearing, even though this point about the statutory limitation period was first raised on appeal, and that the parties had no notice of it at hearing. It would seem that this cannot be correct, and that in such a case where the issue is raised for the first time on appeal and the evidence on this point is unclear, contentious and yet unchallenged at the hearing, the court should either remit the matter for hearing on that point or perhaps, depending on the extent of the controversy, provide the parties an opportunity to present new evidence on appeal: Justices Act, s 110(2). In the circumstances of this case, that course is not necessary because the point could only yield results if the offence is not a continuing offence, and that is not my determination. I turn to my reasons for rejecting that interpretation.
The principles with respect to characterising a "continuing offence" are well settled. In Cox v Ketchell [1972] Tas R 33 leading authorities are usefully considered. The case involved an offence of failing to comply with a relevant Wages Board determination contrary to the Wages Board Act, 1920. Neasey J referred to Reg v Industrial Appeals Court, ex p Barelli's Bakeries Pty Ltd (above), and a question of whether an offence of failing to pay wages was a continuing offence. At 620 O'Bryan and Gillard JJ in a joint judgment stated:
"A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid, or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied. The question whether an offence is of a continuing or continuous nature generally arises in the case of statutory offences and the question is solved by ascertaining what is the precise nature of the offence."
Their Honours went on to note that the mere fact that a time is fixed by the determination for the doing of the act does not necessarily mean that the obligation created by the determination or the statute is spent at the expiration of that time: at 621. In that case, their Honours noted that the section which created the obligation fixed no time for the performance of the obligation to pay. Their Honours found it impossible to infer from the combined operation of the statute and the determination that the statutory obligation became spent if the payment was not made at the time fixed by the determination. Smith J in Barelli's Bakeries expressed agreement with the conclusions of O'Bryan and Gillard JJ, and noted at 623, "that the distinction is between on the one hand, an offence which, once committed, is complete and concluded, and exists only in the past, and, on the other hand, an offence constituted by a continuing breach of a duty to take action to put an end to a forbidden state of affairs, in this case that wages which have become payable under a determination are unpaid …".
Whenever the offence is a continuing offence in the sense of a continuing failure to perform an obligation, a limitation period will begin to run only from the time when the obligation is performed: R v Industrial Appeals Court; Ex Parte Circle Realty Pty Ltd (above) at 462.
The offence created by s 6(1) is an omission to comply with an obligation. The provision does not require any act or mens rea. It does not fix any time for compliance with the obligation that is created. Section 9B fulfils an important purpose. Without it, the question of when the failure occurred would be very difficult to determine. The section creates a fiction such that a failure to comply with an obligation is to be treated as having occurred and referable to a time, and therefore, a date. The time is when knowledge of TasBuild, actual or constructive, of certain matters occurs. This fixes a notional time when the failure occurs. The fixing of a notional time does not mean that the obligation is spent at the expiration of that occurrence. Indeed, expiration of the occurrence is an odd notion, given that the reference point is the acquiring of actual or constructive knowledge, which by its very nature is a subsisting state of affairs.
I note too that the applicant's construction that the obligation is spent after the occurrence would be at odds with the purpose of the legislation. The purpose is to create an obligation and promote compliance with it by the sanction of prosecution and the imposition of a penalty in the event of non-compliance. The purpose of the legislation is to ensure that all those persons entitled to the benefit of the long service scheme have contributions made for them. The lapsing of the obligation would be at odds with the purpose. The argument for the applicant that no purpose is served by having the offence of failing to apply for registration continue after Tasbuild becomes aware of circumstances justifying registration is rejected. It overlooks the scenario that TasBuild ought to have been aware but in fact, did not become aware at all and therefore did not register the worker.
As I have said, s 9B is necessary as, without it, there could be no clarity about when the failure occurred. A third consideration is that the scheme requires clarity. For example, s 6(3) provides that "if an employer fails to apply for registration of an employee, the company may register the employee".
It is clear from a consideration of the section, and the statutory scheme, that the true characterisation of the offence is that it imposes an obligation which continues until it is observed, rather than specifying a time for the doing of the act. To adopt the language of Neasey J in Cox v Ketchell at 37, I find it impossible to infer that the failure to comply with the provision is spent if the application to register is not made at the time of the failure, determined with reference to s 9B. Rather, the obligation to register, or more correctly to apply for registration, subsists from day to day until the application is made and the obligation fulfilled. Accordingly, the limitation period of six months does not commence to run as at 26 May 2014 or earlier. The argument that the complaint was out of time is not supported, and the proposed ground of review would fail if the notice to review was amended to add this ground.

Grounds 6(a), 7 and 8: defence of honest and reasonable mistake of fact

Grounds 6 and 7 relate to the defence of honest and reasonable mistake of fact. Ground 6 is in the following terms:
"6 Holding that the mistake of the Applicant that Shayne Bayes, Jack Russell and Wayne Temple were not employees:
(a)was a mistake of law and not a mistake of fact;
(b)was not honestly and reasonably held when that was not disputed by the Respondent."
The way in which ground 6(b) was argued raises an issue of procedural fairness and is dealt with below at [104] and following.
Ground 7 as amended, is:
"Holding that the applicant had failed to discharge its evidentiary onus in respect of the defence of honest and reasonable mistake of fact".
Ground 8 raises similar issues:
"8 Failing to find that there was a reasonable doubt about whether the Defendant was acting under an honest and reasonable mistake of fact that Shayne Bayes, Jack Russell and Wayne Temple were not employees."
It was argued that a mistaken belief held by the applicant that the workers were independent contractors and not employees was not reasonable and was a mistake of law not fact.
His Honour's reasons for decision referred to this defence, stating:
"The claimed defence of mistake of fact relies, in my opinion, on a mistake of law and, in any case, the defendant does not appear to have discharged its evidentiary onus. It is rather strange that it would rely upon information provided by the ATO. All relevant facts were known to it and its position is a considered position in all respects."
Later, his Honour stated:
"Fourth, his [Mr Hall's] evidence about contacts with the ATO and HIA lacked particularity and the relevant witnesses weren't called. This relates to the defendant's evidentiary onus re the mistake of fact defence …
… I conclude that every essential element has been proved beyond reasonable doubt and (a) there was no reasonable mistake and, (b) any mistake was one of law."
Mr Hall gave evidence before the learned magistrate relevant to this issue, and his mistaken view of the status of the workers is attributed to the applicant and relied upon as its honest and reasonable mistaken belief. During his evidence, Mr Hall referred to the three workers as "not employees" and "self-employed". It is unclear from his evidence when he formed this view about the three workers in question, but it can be inferred that he was led to this view by information he was provided from reliable sources, and that this mistaken view was the reason for the failure of the applicant to apply to register the workers and provide information as requested by TasBuild. His evidence lacked detail on relevant matters, and did not provide a coherent narrative of events. Doing the best I can, the following pertinent matters can be gleaned from his account:
·     Mr Hall relied upon a TasBuild Employer Information Sheet which posed a number of questions. The two questions and answers relied upon for the purpose of the defence are as follows:
"Q       Do I have to contribute for a labour only subcontractor?
AFor the purposes of this legislation and the Australian Taxation Office the labour-only worker is deemed to be an employee.
QHow do I work out who is a worker and who is a subcontractor?
AThere are several avenues to seek advice. We advise employers to contact their employer organisations or accountant. The Australian Taxation Office has an excellent question and answer tool to help you, it is called the Building & Construction Industry Employee/Contractor Decision Tool and you can find it online at:
asked include such things as: Is the worker free for a number of clients or just for you? Do they supply materials to do the work? Do you pay their superannuation, redundancy payments, sick leave payments etc? Does the worker work their own hours or hours determined by you? Can the worker employee [sic] someone else to do the work? Does the worker take on a financial risk with the work? Is the worker paid per job or per week/fortnight? Does the worker quote for the work? They are examples only and a number of different criteria will be used to determine the workers [sic] capacity. Contact TasBuild for any further assistance in this area."
·     The question and answer tool from the Australian Tax Office referred to, was then used, and it showed that the three workers were "employees – self-employed".
·     Mr Hall also relied upon a "Member Alert" document distributed by the Housing Industry Association that referred to whether long service leave payments need to be paid, and difficulties in determining who was eligible. In part it said, "In the most basic terms if you're not required to pay superannuation you're not required to pay LSL."
·     Mr Hall sought advice from the Tax Office. He explained that he was ringing up because of TasBuild, and that Tasbuild's definition was that "if they deemed not to have to pay superannuation, I wouldn't have to pay long service leave." Mr Hall asked whether the workers were employees and whether he was responsible for superannuation. Mr Hall gave evidence that he answered a lot of questions about the "employment arrangements" of the three workers. He was advised by the ATO that the workers were employees. It seems he meant not employees. The ATO also advised that the applicant was not responsible for superannuation.
·     Mr Hall also relied upon two emails. The first email was from Mr Atkins, CEO of TasBuild, dated 23 January 2014, which provided :
"Thanks for the information Denis.
The information reflects our position re this matter.
Obviously, the real test in this instance is the need or otherwise to make a superannuation payment. This can only be assessed where al the relevant facts are now and the relevant law is applied."
·     Mr Hall understood the reference to "reflecting his position" was as to the significance of superannuation payments.
·     The second email was from Mr Hall to Mr Atkins, dated 30 January 2014, and stated, "Now I am totally confused as we have already established with the ATO I am not required to pay Super to the men in question."
In submissions on appeal, the applicant also drew attention to evidence before the learned magistrate that it had been making payments to TasBuild since approximately 2002, and it had 6 registered employees.
The arguments for the applicant and TasBuild presupposed that the "defence" of honest and reasonable mistake of fact was available. Whether it is available, and the offence is one of "strict liability", or whether the defence is not available, and the offence is one of "absolute liability", is a question of statutory construction: He Kaw Teh v The Queen (1985) 157 CLR 523, per Dawson J at 590. In relation to statutory offences that do not involve a mental element such as knowledge or intention, there is a presumption that honest and reasonable mistake is to be available as a ground of exculpation: He Kaw Teh v The Queen per Dawson J at 590. The presumption is liable to be displaced and the question is whether Parliament intended that the offence created by that provision should be an absolute offence: He Kaw Teh v The Queen per Gibbs CJ at 528-9. Relevant to determining this question are matters which include whether the words of the section creating the offence contain a clear indication of Parliament's intention, the subject-matter with which the statute deals, whether the acts are truly criminal or regulatory breaches, and whether absolute liability would assist in the enforcement of the regulations: He Kaw Teh v The Queen per Gibbs CJ at 529-30, Dawson J at 594- 5; Browning v Barrett [1987] Tas R 122 at 142.
The words of ss 6 and 8 of the CILS Act do not point to a mental element such as intent or recklessness. Indeed, the terms of s 9B and its fixing of the offence by reference to the knowledge or constructive knowledge of TasBuild, and not the employer, is arguably informative. The offences are regulatory in nature and do not involve serious penal consequences. Arguably, it is not consistent with the purpose of the legislation to have a defence of honest and reasonable mistake of fact available for offences contrary to ss 6 and 8. It may be thought that Parliament would have anticipated that imposition of absolute liability could not lead to injustice or a need to ameliorate the application of that obligation. It is at least arguable that an interpretation of absolute liability would be consistent with the purpose of the Act. To elaborate on that latter point, it does not promote the purpose of the Act for businesses to be pre-empting the determination to be made by TasBuild. The legislative scheme is that TasBuild is to undertake the process of determining an obligation for payments to be made by businesses in the construction industry.
It may also be arguable that a belief that workers are independent contractors is not a belief about a matter which, if true, would render the conduct innocent. Stating the law more precisely: a person will not be guilty if he or she acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his or her act innocent: He Kaw Teh v The Queen, per Gibbs CJ at 533; CTM v The Queen [2008] HCA 25, 236 CLR 440 at [8]. In the case of an offence defined by statute, it means that, if the belief were true, the conduct of the defendant would be "outside the operation of the enactment": Proudman v Dayman (1941) 67 CLR 536 at 541. The common law is concerned with mistakes regarding the elements of the offence: Ostrowski v Palmer [2004] HCA 30, 218 CLR 493 at [10]. As I have said, the status of the workers as employees, as opposed to independent contractors, is not an element of the two offences in question. The net has been cast deliberately wide to include independent contractors. Any mistaken belief was not about the elements of the offences. Arguably, the only "defence" available is to press the application of the IC Act, s 7 (in which case the CILS Act would have no effect, and a successful prosecution could not result), not the application of a defence of honest and reasonable mistake of fact.
However, neither of these arguments has been raised at the hearing or on review, and rather than inviting submissions on these points, I shall assume for the purpose of considering the arguments that have been raised, that the defence is available, and would apply to an honest and reasonable belief that the workers were independent contractors.
As explained in He Kaw Teh v The Queen, the evidentiary onus of raising the ground of exculpation is on the defendant, but, once that occurs the prosecution carries the ultimate legal onus of displacing the ground. The evidentiary onus involves a subjective element of a kind that is ordinarily peculiarly within the knowledge of the defendant and, an objective element of reasonable belief which must be capable of being measured against the evidence by a tribunal of fact: CTM v The Queen at [8].
Mistakes of law are not a ground of exculpation; ignorance of the law is no excuse: CTM v The Queen at [7]. A question arises whether a mistake as to the status of a worker is one of fact or law, or mixed fact and law. A mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law: Thomas v The King (1937) 59 CLR 279 at 306; Walden v Hensler (1987) 163 CLR 561 at 591-592. It may, however, depend upon the nature of the mistake. If there is no mistake about a primary fact and the question of opinion is as to opinion about the law, then that would not ordinarily constitute a mistake of fact: Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751. A belief or assumption that the acts in question are lawful, either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse: Von Lieven v Stewart (1990) 21 NSWLR 52 at 66-67 (both cases cited in Ostrowksi v Palmer (above) at footnote 951 at [13]).
A belief that the workers were independent contractors is an opinion about the legal characterisation of a worker, based on certain facts. There is no suggestion that any of those facts were mistaken. I consider that the honest and reasonable belief is not available in these circumstances. Once all the facts are known, a mistake as to whether those facts amount to a contract of service or a services contract is a question of law.
It has not been suggested that all the material facts were not known by the applicant. As submitted on behalf of TasBuild, "Mr Hall was the holder of the facts. He asked for an opinion as to the law: on what I have told you are the workers employees or contractors. He is told the conclusion of law on which he relies. He does not rely on facts from the ATO or HIA." The evidentiary onus has not been discharged. The mistake was not a mistaken belief in the existence of some fact or facts, as opposed to the application of the law.

I have not overlooked the cases referred to me by counsel for the applicant regarding error of law and error of fact in the context of whether a statutory right to appeal exists requiring "an appeal in point of law": Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354 at [24]-[25]; Tasmania vKossman [2009] TASSC 35. Those cases arise in a different context and are remote to the "defence" of mistake of fact, and remote from the courts' concern not to sanction mistakes of law as an avenue for exculpation. See the discussion in Green v Victorian Workcover Authority [1997] 1 VR 364.
Having considered the evidence, any mistake was plainly unreasonable, and for this reason also, the evidentiary onus has not been discharged. Relevant considerations include the following two matters. Mr Hall's evidence was vague and unclear about what he was told by the "Tax Office". He did not give evidence of what he told the Tax Office about the employment arrangements which led to the advice he was given. The reasonableness of the belief is incapable of being measured because of the lack of evidence about the information provided to the Tax Office as the context for the advice (see CTM v The Queen at [8]). According to the evidence, the final word on the matter was the email exchange between Mr Hall and Mr Atkins. Mr Atkins challenged Mr Hall's so-called mistaken belief, leaving Mr Hall confused. Mr Atkins made it clear that whether or not the workers are independent contractors depends on the detail of the facts and the application of the law.
If Mr Hall believed that the three workers were self-employed and not employees, it was a mistake about the law, and his ignorance about the law is no excuse. Regardless of whether it was a mistake of fact or law, or a mixed question, it was not a belief reasonably held. If I am wrong, and the evidentiary onus has been discharged, the prosecution has proved that any mistaken belief held on this issue was not a reasonable belief. Grounds 6(a), 7 and 8 have not been made out. Before leaving this aspect of the evidence and the question of honest and reasonable mistake of fact, I note that the enquiries made by the applicant, and the existence of a mistake, may potentially be relevant to sentence as a matter in mitigation.

Ground 6(b) and proposed new ground: procedural unfairness

Ground 6(b) provides:
"Holding the mistake of the Applicant that Shayne Bayes, Jack Russell and Wayne Temple were not employees:
(b)was not honestly and reasonably held when that was not disputed by the Respondent."
There is a proposed ground of review regarding the learned magistrate's reasons in relation to the question of an honest but mistaken belief:
"The learned magistrate failed to accord procedural fairness to the applicant by failing to provide it with the opportunity to make submissions as to whether:
athe evidentiary onus of the applicant in relation to the defence of honest and reasonable mistake had been discharged
bthe applicant's reliance on the ATO was strange
cthe evidence of Mr Hall in respect of his dealings with the HIA and ATO lacked sufficient particularity
dthere was no reasonable mistake by the applicant"
The reasons of the learned magistrate are set out above at [90] in relation to grounds 6(a), 7 and 8.
It is argued for the applicant that the only argument at the hearing was as to whether the mistake was one of fact or law, and not as to whether the mistake was reasonable. It was contended that it was therefore inappropriate for the learned magistrate to conclude that the mistake was not reasonable without allowing the applicant an opportunity to address that issue. There was also no submission made that the evidentiary onus had not been discharged, and it was contended that it was inappropriate for the learned magistrate to conclude that the onus had not been discharged without giving the applicant an opportunity to be heard. The learned magistrate's conclusions that Mr Hall's evidence about his contacts with the HIA and the ATO lacked particularity and that relevant witnesses were not called, was not challenged. Further, it was contended on review that there was nothing "strange" about seeking advice from the ATO when Mr Hall was referred there by the respondent's information sheet and investigator.
The grievance that the applicant should have been forewarned of these various conclusions and observations that were not the subject of argument is misconceived. The learned magistrate did not embark on a new, unargued basis for liability. The applicant undoubtedly bore an evidentiary onus, and it was always open to the learned magistrate, regardless of the position adopted by the respondent, to find that onus was not discharged. Whether the onus was discharged was a live issue on the trial, just as the elements of the offences were an issue on trial, unless a concession was made. TasBuild did not make a concession, and its approach of confining submissions to a singular issue, no doubt because it was considered to be fatal, cannot be regarded as a concession.
The learned magistrate's observation about the lack of particularity in Mr Hall's evidence of contact with the HIA and the ATO, has particular relevance to the question of the reasonableness of his belief. I reiterate the principle drawn from CTM at [8]: "The evidentiary onus involves a subjective element of a kind that is ordinarily peculiarly within the knowledge of the defendant and an objective element of reasonable belief which must be capable of being measured against the evidence by a tribunal of fact." There was, in this case, a paucity of evidence for his Honour to measure any belief against.
The comment that Mr Hall's seeking of advice was "rather strange" seemed to be no more than an observation that it was inexplicable, given the fixed view that Mr Hall already held on the matter of the status of the workers.
I also observe that the reasons under attack said to deny the applicant procedural fairness are superfluous to the outcome, because of the conclusion reached that the mistake was one of law, not fact.
The argument that the applicant was denied procedural fairness is contrary to principle because, as I have pointed out, it overlooks the adversarial nature of the hearing and the significance of the fact that these matters were issues for his Honour's proper consideration. Further, there was no substance in the point that the learned magistrate should, in this case, as a matter of fairness, have warned the applicant of his reasoning. In F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, Lord Diplock said at 369:
"Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties, the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
As observed by Blow CJ in Chaplin v Lane (No 2) [2015] TASSC 21, with force, in my respectful view:
"Courts of summary jurisdiction would cease to function if the rules of procedural fairness were held to require magistrates to discuss every possible line of reasoning in a case before making a decision."
There is no substance in ground 6(b) and the proposed new ground. It has not been shown that the learned magistrate failed to discharge his duty of procedural fairness.

Ground 9: insufficient reasons

Ground 9 is that the learned magistrate failed to provide sufficient reasons for finding the complaint proved.
The principles governing the impugned adequacy of a court's reasons for a determination are well-settled and uncontentious: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, per Crawford CJ at [64]; Robinson v Chatters [2010] TASSC 66 at [74]-[77]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58] and [59]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, per Kirby P at 259; Beale v Government Insurance Office (NSW) (1987) 48 NSWLR 430 at 442. The extent of the reasons that are required depends on the nature and circumstances of the case, the way the trial was conducted, the issues raised and the arguments that were presented. A useful measure of adequacy is that the reasons need to contain enough detail for the parties to understand the reasoning which led to the conclusion, and to enable the appellate court to examine the decision and determine an appeal.
It is argued that reasons in relation to the following matters were inadequate. In setting out this summary I have disregarded argument that complains that the reasoning is wrong, and is not about the sufficiency of the reasons.
·     The learned magistrate did not address and articulate the weight to be given to the various factors identified in Stevens v Brodribb relevant to whether the workers were employees or independent contractors. Counsel drew attention to the fact that there was a contest about this issue.
·     The learned magistrate's reasons on this question were also inadequate because he dealt with the position of the workers globally, without considering the evidence about each worker separately. This lack of reasons is significant, noting that each worker was the subject of a different count.
·     The learned magistrate's reasons for rejecting the evidence of Mr Hall were inadequate.
It can be seen that this is not a broad attack on the reasons, and there is no suggestion that the conclusion by the learned magistrate is not disclosed in his reasons.
The reasons of his Honour are set out at [41] above.
His Honour referred to some of the evidence, in particular the evidence of Mr Hall that he rejected, relevant to the factors. His rejection of Mr Hall's evidence on these points significantly undermined the applicant's case that the workers were independent contractors. His Honour made specific reference to paras 29 and following of TasBuild's submissions, and explicitly stated that he accepted those submissions. These submissions refer to the decision of Stevens v Brodribb and at par 33 of the submissions refer to evidence common to all three workers which indicates an employer/employee relationship, rather than that of principal/contractor. Subsequent paragraphs summarised the contents of the Subcontractor Detail Forms for each individual worker. The submissions contain the conclusion that all three persons are employees and not subcontractors on the evidence, and this was evidently the conclusion reached by the learned magistrate. His Honour referred to the evidence of Mr Hall and in his reasons set out the evidence of Mr Hall that he rejected that was relevant to these factors. The consideration of the evidence and the highlighting of aspects of it reveal that his Honour was conscious of the relevant indicia. The weighing of the indicia can be discerned from the acknowledgement of correct principle, the acceptance of the analysis in TasBuild's submissions, the rejection of evidence pertinent to the indicia, and the reaching of a conclusion. While the precise weighting of each factor is not spelt out, it is evident that his Honour attached significance to the factors at par 33 of the submissions. No more was required in order for the reasons to be adequate.
His Honour did not deal separately with each worker, but he did not need to. He considered, and evidently attached weight to, factors that were common to each worker. This is notable in his Honour's reference to his adoption of par 33 of TasBuild's submissions, set out above at [42]. In referring to Mr Hall's evidence, his Honour was not suggesting that the evidence was common to all workers. His Honour was identifying evidence that he did not accept, and identifying difficulties with the evidence, rather than announcing findings of fact. While he did not go to the trouble of identifying whether the evidence was general and related to all of the workers or only one or two of them, it was no doubt evident from Mr Hall's evidence, and the parties would have been familiar with the evidence. I note that the approach of not recounting the evidence and presupposing an understanding of it was consistent with the style of oral reasons adopted by his Honour in this case.
It is said that the reasons for rejecting Mr Hall's evidence were inadequate. That criticism is not sustained on a consideration of the reasons. In fact, this aspect of the reasons was quite expansive. It can be gleaned from the reasons that on the question of the status of each worker, Mr Hall's evidence was vague and lacking in detail, his memory was poor, and the systems that he described did not measure up to common sense and the realities of the industry.
This ground of review is rejected.

Ground 11: failed to exclude evidence

Ground 11 asserts error by the learned magistrate by admitting or failing to exclude evidence said to be inadmissible. The ground of appeal identifies the evidence said to have been admitted in error, and sets out aspects of the affidavit of Mr Atkins involving unsupported conclusions, hearsay, and irrelevant and inadmissible opinion. The affidavit of Mr Harpham is also included in this ground as it is said to contain hearsay and a conclusion not supported by evidence.
The prosecution case against the applicant involved the calling of three witnesses, including Mr Atkins and Mr Harpham. It was agreed by counsel for the applicant (not the same counsel as on appeal) that the evidence-in-chief should proceed by the tender of affidavits that were presented in a court book. Presumably counsel had read the affidavits before agreeing to this course. She need not have agreed. There was no objection taken by her with respect to the content of the affidavits. The learned magistrate was entitled to proceed on the basis that counsel had made a considered decision to take the course she did, rather than insisting on the evidence-in-chief being led orally, and also, that counsel made an informed decision not to object to the impugned paragraphs. The obligation that counsel for the applicant seeks to cast on the learned magistrate to check line by line the admissibility of these affidavits is contrary to authority, that task was the role of counsel at the hearing.
The applicant's submissions focussed on the opinion in Mr Atkins' affidavit that the workers were employees "for the purposes of the Act". This was evidently a reference to the formulation of opinion for the purpose of s 9B of the CILS Act, and it was admissible with respect to that issue. Remembering the very wide definition of "employee" in the Act, it appears that the opinion is not about the issue of the status of the workers as employees versus independent contractors.
The applicant argues that the learned magistrate relied on the opinion for the purpose of establishing that the workers were "employed". The passage in his Honour's reasons was as follows: "About the prosecution evidence, little is required to be said. It is substantially unchallenged. It is correct that prosecution evidence that the workers were employed went unchallenged – see paragraph 51. The evidence in the affidavits can only be described as comprehensive and it stands substantially unshaken…". The affidavit of Mr Atkins traverses matters of fact regarding the nature of the work, and factors bearing on the nature of the work relationship with the applicant. The cross-examination of Mr Atkins was very limited. In my view, it cannot be inferred that his Honour's observation as to substantially unchallenged evidence was a reference to the impugned opinion.
I return to the impugned evidence in general. Counsel expressly disavowed any objection to the evidence by agreeing to the course taken, and by the conduct of the defence, waived any objection that might have been taken to the reception of the evidence. Usually in such circumstances, counsel on appeal is bound by the conduct of counsel at trial, and is precluded from taking a point about the inadmissibility of the evidence: Steinhauser v Davis (1994) 3 Tas R 258 at [20]; R v Birks (1990) 19 NSWLR 677 at 683-684; Crampton v The Queen [2000] HCA 60, 206 CLR 161 per Gleeson CJ at [14]-[19]. I cannot see any valid reason in this instance to make an exception. It is not a case where the conduct of counsel has resulted in a miscarriage of justice.
The ground fails.

Ground 13: the sentence was manifestly excessive

Ground 13 is the only ground with respect to sentence and it asserts that the sentence was manifestly excessive.
The sentence imposed was a global penalty on the complaint of $5,000. The maximum penalty for a contravention of s 6(1) of the CILS Act was 100 penalty units, which at the material time was a ceiling of $14,000, and for s 8, 10 units, then a ceiling of $1,400.
The sentencing submissions for TasBuild drew attention to the purpose of the Act to provide a portable long service leave scheme, and the reliance on employers' contribution to make payments to workers who accumulate the relevant period of long service leave. It was pointed out that the applicant would be the first to be fined for offences under the CILS Act.
Counsel for the applicant provided a document to the court which set out the financial circumstances of the applicant, which is not now available, but it seems that it provided that the applicant's profit in the previous tax year was in the order of $200,000. Counsel for the applicant said nothing else in mitigation. Presumably there was nothing else that could be said.
The matters referred to by the learned magistrate in imposing sentence included the following:
"I am left to wonder about the motivation of the management of the company. I am left to wonder because I have not been given any submissions by counsel for the defence that might have been made to shed light on management's thinking and I certainly didn't get any evidence that would help me in that regard during the course of the trial.
To me that's a relevant point for me to make because I can't imagine why management of a company like Bryden Homes Pty Ltd would think that it was a bright idea not to supply the information and not to register these three workers. It seems obvious to me as I have, in effect in part, ruled that it was being required to take part in an assessment process and if the assessment resulted in an adverse position to it it had certain rights which it could then pursue and certain other actions which it could pursue even though those sorts of actions; in other words, non-payment, might have resulted in some other form of prosecution. So to me it's bewildering but the point that needs to be emphasised here is that this scheme is here for the workers.
It's here to give workers in an industry where – and I am speaking relatively – employees don't remain employed by the employers for as long as employees in other industries tend to be – equivalent rights to those who, for instance like me, stick to the same job decade after decade and therefore accumulate long service leave rights from time to time. That's only fair and I am sure that fair-minded people in the community would also think that it was only fair. It requires, according to Mr Barclay's submission and I think that it's inescapable – it requires employers like Bryden Homes and its management to cooperate with what I think was called 'the new scheme'.
Now, this defendant has no previous convictions. On the other hand it's not entitled to mitigation on the plea of guilty and there's absolutely nothing before me which would suggest to me whether or not it is likely to adopt a more compliant attitude in the future. Therefore, an approach that is to some extent a deterrent approach needs to be put in place by me. Now, that leads me to the conclusion that the fine ought to be moderate. The company, according to the material that I have, can afford to pay a fine of the amount that I am contemplating."

It was submitted on appeal that the sentence was manifestly excessive as:
·     It was the applicant's first offence;
·     The applicant was registered as an employer and had registered other workers;
·     The evidence at hearing disclosed the applicant was honestly mistaken as to the requirement to apply for registration and had followed advice in determining its obligations.
I accept that these are valid considerations. However, they are not the only considerations, and the matters highlighted by the learned magistrate are also pertinent. The scheme is not self- regulating, and it was not for the applicant to determine its obligations under the Act.
It was undoubtedly a heavy sanction for a first offence and having regard to the matters in mitigation, but the question is whether the fine is so heavy that it falls outside the magistrate's wide sentencing discretion. The court had a discretion not only as to the sentencing outcome, but also as to the weight to be given to the considerations that were relevant in fixing the penalty. His Honour gave weight to the fact that nothing had been said in mitigation on the applicant's behalf about whether or not it is likely to adopt a more compliant attitude in the future. This was particularly significant noting the applicant's resistance to the new scheme, and that the breaches occurred in May and October 2014 and were continuing as at the date of the complaint in November 2014. His Honour concluded that given nothing was said as to compliance in the future, a penalty which would be to some extent a deterrent was required. His Honour was entitled to take that view. The fine was not disproportionate to the applicant's capacity to pay, and was not excessive, ' having regard to the nature of the four offences involving two substantive acts of contravention of the Act, failing to register three workers and failing to provide information to TasBuild. The fine of $5,000 was not so large an amount relative to the maximum penalties under the CILS Act that it reveals his Honour overlooked mitigatory factors, or overlooked that the case was distinguishable from other more serious and knowingly unlawful contraventions. The sentence was not plainly unjust.
None of the grounds of appeal are made out. I make an order dismissing the motion to review. The three proposed grounds of review lack merit and accordingly, the application to amend the notice to review by adding these grounds is also dismissed.