BVB v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BVB v Workers Compensation Nominal Insurer (iCare) & Ors [2025] NSWPIC 299
APPLICANT:	BVB
RESPONDENT:	Workers Compensation Nominal Insurer (iCare) BUC
MEMBER:	Fiona Seaton
DATE OF DECISION:	26 June 2025
CATCHWORDS:	Workplace Injury Management And Workers Compensation Act 1998; claim made for weekly benefits; credit; whether applicant a worker; failure to give notice of injury/make claim; whether applicant sustained a psychological injury; section 344 costs application; Held – applicant was a worker and sustained a psychological injury; no adverse credit finding; any failure to give notice/make claim not a bar to recovery; application for costs indemnity under section 344(1)(c) declined; first respondent to pay applicant weekly benefits.
DETERMINATIONS MADE:	1. At the time of her injury on 14 January 2023 the applicant was a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in the employ of the second respondent. 2. Any failure by the applicant to give notice of her claim or to make a claim within the times prescribed in ss 254 and 261 of the 1998 Act is not a bar to recovery of compensation. 3. The applicant sustained a psychological injury as a result of the incident on 14 January 2023 pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (1987 Act). 4. A finding is made that the second respondent did not hold a valid New South Wales workers compensation policy at the time of the injury. 5. The applicant’s pre-injury average weekly earnings rate is calculated at $1,800. 6. The first respondent is to pay the applicant weekly benefits compensation as follows; (a) 10 October 2023 to 9 January 2024 at 95% of $1,800 or $1,710 pursuant to s 36(1) of the 1987 Act as indexed, and (b) 10 January 2024 to date and continuing at 80% of $1,800 or $1,440 pursuant to s 37(1) of the 1987 Act as indexed. 7. The publishable decision is to be de-identified in accordance with r 132 of the Personal Injury Commission Rules 2021, including de-identification of all parties, entities or individuals named in the proceedings.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms BVB alleges she was employed by the second respondent as a night manager and receptionist on 14 January 2023.
On that date a man entered the premises where she was working and behaved in an erratic and threatening manner. After securing the safety of other people on the premises the applicant was chased and threatened by the intruder until he was subdued by police.
A claim was made by the applicant on 23 October 2023 for weekly benefits compensation for the period from 10 October 2023 to date and continuing as a result of a psychological injury arising from the events of 14 January 2023.
The first respondent, the Workers Compensation Nominal Insurer (iCare), issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 8 January 2024 disputing the applicant made a claim within the legislative timeframes, that she was a worker or deemed worker, or that she sustained an injury. The dispute was maintained following internal reviews on 1 March 2024, 27 March 2024,
29 April 2024 and 18 September 2024.
The second respondent disputes the applicant was a worker or deemed worker and that the claim was brought within legislative timeframes.
An Application to Resolve a Dispute (ARD) was lodged in the Personal Injury Commission (Commission) on 29 January 2025 naming the Workers Compensation Nominal Insurer (iCare) and three related corporations as respondents.
At a preliminary conference held in the Commission on 12 March 2024 the ARD was amended to name only the first and second respondents in these proceedings.
The dispute was listed for conciliation conference/arbitration hearing on 2 May 2025.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether the applicant was a worker pursuant to s 4 of the 1998 Act or a deemed worker pursuant to cl 2 Schedule 1 of the 1998 Act at the time of injury on
14 January 2023;
(b)    whether the applicant failed to give notice of injury and/or make a claim within the times prescribed in ss 254 and 261 of the 1998 Act;
(c) whether the applicant suffered a psychological injury on 14 January 2023 pursuant to ss 4 and 9A and/or s 4(b) of the Workers Compensation Act 1987 (1987 Act);
(d)    the extent and quantification of the applicant’s entitlement to weekly compensation, if any, from 10 October 2023 to date and continuing pursuant to ss 36 and 37 of the 1987 Act, and
(e)    the correct calculation of the applicant’s pre-injury average weekly earnings (PIAWE).

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 2 May 2025 in Sydney. Mr William Carney appeared for the applicant instructed by Mr Kato Simpson, legal representative. Mr Lachlan Robison appeared for the first respondent instructed by Ms Joanna Turnbull, legal representative. Mr David Baran appeared for the second respondent instructed by Ms Madeleine Andrews and Mr Michael Fetter who joined by audio visual link. Ms Barnsley was also present by audio visual link.
During conciliation the second respondent made an application that the proceedings be dismissed in accordance with s 54 of the Personal Injury Commission Act 2020 (PIC Act) and r 77 of the Personal Injury Commission Rules 2021 (Rules).
The second respondent provided detailed written submissions in support of its application which form part of the record and will not be set out here. Oral submissions were also made by the second respondent for which a transcript is available.
The second respondent in essence submits that on 16 April 2025 the applicant served a further statement signed on 15 April 2025 in response to the second respondent’s application to lodge additional documents of 7 April 2025.
The applicant advised she intended to file an application to lodge additional documents with the statement and a sealed copy would be served in due course. That application was not filed in the Commission and the statement of 15 April 2025 is not in evidence.
In the applicant’s further statement of 15 April 2025 the second respondent submits she asserts for the very first time in the history of the proceedings that in fact her employer was BTC and so the claim against the second respondent was effectively abandoned.
BTC is the director, secretary and sole shareholder of the second respondent.
As the second respondent correctly states no claim has been duly made against BTC.
The applicant’s submission is that the claim is made against the second respondent and no claim is brought against BTC personally.
My preliminary view was that the proceedings ought not be dismissed on the basis that they are frivolous or vexatious or otherwise misconceived or lacking in substance under s 54 of the PIC Act as the claim against the second respondent remains on foot and no application was made to amend the pleadings.
The application to dismiss the proceedings was not successful and brief written reasons follow.
The Commission’s power to dismiss or strike out proceedings is restricted to the circumstances in s 54 of the PIC Act. To dismiss proceedings the Commission must be satisfied the proceedings have been abandoned, or the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or in accordance with s 54(c) for any other ground of dismissal specified in the Rules.
In r 77 the only ground specified for workers compensation proceedings is that the applicant has failed to prosecute the proceedings with due despatch.
The second respondent submitted these proceedings must be dismissed on three bases; the applicant had abandoned the proceedings, the proceedings are frivolous or vexatious, entirely misconceived and lack substance, and the applicant has failed to conduct the proceedings with due despatch.
The applicant submits she has consistently said in her statements that all the conversations she had which led to the formation of the employment were with BTC. The statement she makes on 15 April 2025 that “I was employed by BTC solely” is consistent with her earlier evidence. The applicant is not and never has pursued BTC and she has always pursued the corporations which own and operate these establishments. I accept that submission.
I am not satisfied the applicant has abandoned the proceedings as she attended the preliminary conference and the arbitration hearing at which she made herself available to give evidence.
I am also not satisfied the proceedings are frivolous, vexatious or otherwise misconceived or lacking in substance. The applicant has made a claim for compensation and provided documentary evidence. There is a real issue to be determined, that is whether she was a worker and whether she is entitled to compensation as a result of an injury.
The proceedings clearly have a material purpose or point[1] which is to pursue entitlements under the workers compensation legislation. The applicant’s claim is not ‘so obviously untenable it cannot possibly succeed’ or ‘so manifestly faulty that it does not admit of argument’, as Roche DP discussed in Spears v Department of Ageing, Disability & Homecare of NSW.[2]
[1] Reddy v Australian Automotive Group Pty Ltd [2008] NSWWCCPD 71 at [54].
[2] [2010] NSWWCCPD 35 at [8].
While there has been delay in having the applicant’s claim heard before the Commission, apparently caused in part at least by factors outside of her control, I am not satisfied the applicant has failed to prosecute her claim with due despatch.
The history of earlier applications lodged in the Commission is referred to in the second respondent’s submissions with five applications lodged between 30 April 2024 and these proceedings which were lodged on 29 January 2025.
This is not a case where the applicant discontinued earlier proceedings and brought these proceedings seeking the same relief based on the same evidence. The searches included with the ARD and the first respondent’s reply make clear identifying the correct employer was not straightforward, unassisted by the lack of documentation.
In the circumstances I formed the view the applicant had not abandoned the proceedings, the proceedings are not frivolous, vexatious, entirely misconceived or lacking in substance, and the applicant had not failed to conduct the proceedings with due despatch.
The second respondent next made an application seeking to adjourn the proceedings and to appeal from this ruling to the President.
I exercised the discretion to refuse leave to adjourn the proceedings as no proper basis for an adjournment was in my view disclosed.
Applications for adjournment are assessed in the context of the Commission’s objectives in s 3 and the guiding principle in s 42 of the PIC Act to resolve disputes justly, quickly, cost effectively and with as little formality as possible.
The case was set down for a full day hearing in the Commission on 2 May 2025. Given the public interest in using Commission’s resources efficiently, a request for an adjournment on the day of the proceedings should only be granted in exceptional circumstances.
There were no exceptional circumstances apparent.
The request for an adjournment was based on an unsuccessful application to have the proceedings dismissed, in turn based on a further statement of the applicant that included “I was employed by BTC solely.”
In my view this statement was consistent with the applicant’s statements already in evidence so that refusing leave to adjourn the proceedings would not result in a denial of justice to the second respondent, produce a lack of procedural fairness or cause prejudice to it.[3]
[3] Moombalene Local Aboriginal Land Council v Dailey [1998] NSWCC22; (1998) NSWCCR 469.
There was no implication that by not exercising the discretion to grant an adjournment the second respondent would not be afforded an opportunity to present its case, and that submission was not made by the second respondent.
Factors weighing against the exercise of the discretion to grant an adjournment include the history of proceedings regarding the applicant’s claim and the effect of further delay that would result, particularly on the applicant.
Sufficient grounds must be made out in order to grant an adjournment. In my view there was an absence of sufficient grounds for an adjournment in this case. On balance and weighing the interests of all parties and the Commission’s objectives the adjournment application was refused.
In conciliation the applicant’s application to admit late documents dated 17 March 2025 and the second respondent’s application to admit late documents dated 7 April 2025 were admitted into evidence. Leave was granted to the respondents to cross examine the applicant. Agreement was unable to be reached on the correct calculation of the applicant’s PIAWE.
A finding was made that the second respondent did not hold a valid New South Wales workers compensation policy at the time of the injury.
Due to the time taken in conciliation, on interlocutory matters and Ms BVB’s oral evidence, the matter was unable to be concluded on 2 May 2025. The applicant made oral submissions on that day and a timetable was entered by which the respondents were to make their submissions and the applicant was to make her submissions in reply, after which the matter would be determined. Those submissions have since been provided.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    first respondent’s Reply and attached documents;
(c)    second respondent’s Reply with attached documents and surveillance footage dated 6 to 10 December 2024;
(d)    second respondent’s Application to Lodge Additional Documents with attached documents, excluding letter from Tisher Liner FC Law to P K Simpson & Co. dated 18 February 2025 (ALAD 1);
(e)    applicant’s Application to Lodge Additional Documents with attached documents dated 17 March 2025 (ALAD 2);
(f)    second respondent’s Application to Lodge Additional Documents dated
7 April 2025 with attached documents and surveillance footage dated 22 and
25 March 2025 (ALAD 3), and
(g)    printout of what purports to be the applicant’s Facebook profile.

Oral evidence

Leave was granted to cross-examine the applicant and a transcript is available.

Applicant’s evidence

The applicant relies on five signed statements and a statement taken by Constable Winkler of the NSW Police signed on 14 February 2023. These are referred to in chronological order.

Applicant’s statement to NSW Police dated 14 February 2023

The applicant was the Human Resources Manager at BXC and had held the position for the previous two days.
On Saturday 14 January 2023 she was rostered on to work from 4.00pm to 4.00am.
At about 6.30pm a male of Islander appearance wearing no shirt, a pair of sunglasses and cap and with a 1% tattoo on his right abdomen entered the brothel and sat in intro room C.
The applicant noticed his behaviour was odd as he was continuously pacing around the room.
She let two of her girls into the intro room to greet the male and offer their services. Due to his behaviour she stopped other girls going in. The applicant went into the room and spoke with the male who said he wanted all the girls and she stated that only two girls were available.
The applicant told the girls to take him to the room next to her office as she suspected he may be unpredictable. About five minutes later the girls came to her and stated the male needed to be escorted out and she got two male clients who she knew to help her to ask the male to leave.
They all left the building and the males continued to escort him down the street and the applicant remained at the location.
About 15 minutes later she was in the foyer of the location and saw that the male had returned to the building. She saw and heard him kicking the front door through a two way mirror next to the door.
The applicant also saw through the window a girl that works at the premises approach the door. She was concerned that she would be outside with the male so she opened the door and let her in.
The male attempted to follow the girl in and the applicant and a receptionist tried to stop him using their hands and screaming “Stop! No! You are not allowed in.”
The male pushed past her into the building and ran to the girls dressing room. The applicant followed him and instructed all the staff to lock themselves in the gym. The male began to grunt loudly and approached the applicant. She turned in the opposite direction to get away from him and he continued to run after her. This lasted a few minutes.
His chasing her caused the applicant to fear for her physical safety and that of her staff. She told him she would arrange for him to have a free service and also offered him a cigarette in an attempt to calm him down.
Shortly after that the police arrived at the location. She directed them to where the male was located. The police approached him and spoke to him for a short time. The applicant began to record the incident on her mobile phone. The male and the police began to have an altercation. More police arrived and subdued the male.
Following the incident the applicant provided Constable Winkler with the footage she had taken with her mobile phone.

Applicant’s statement signed 14 December 2023

A signed statement of the applicant was obtained by Lee Kelly Commercial Investigations for the first respondent on 14 December 2023.
The applicant was then 37 years of age, married with three children. She obtained a hairdressing qualification in 2005 and studied towards a Bachelor of Arts, International Studies at the University of Wollongong between 2014 and 2016. She was employed as a bar assistant in Port Kembla between 2008 and 2009 and again in 2011.
The applicant named her employer as a corporation not the subject of these proceedings who at that time she understood to be the owner and operator of BXC. She had been employed by two other corporations related to the second respondent from
27 December 2019.
She started in the role of Human Resources Manager with the second respondent at BXC on 12 January 2023. She ceased employment with a corporation related to the second respondent on 10 October 2023 when she was terminated following a false allegation made by a co-worker which she vehemently denies.
There was no direct line supervisor and the applicant reported directly to BTC. As he resided in Melbourne he had very little involvement in the day-to-day operation of the business.
Her duties included ensuring the overall operation of the business such as interviewing and employing staff, performing all duties of cash up, running the bookings and taking time slots and managing extensions, she ordered linen and performed rubbish removal and even assisted in redesigning the second respondent’s premises. She did not receive any training.
Her hours with the second respondent were from 7.00pm to 7.00am on Thursday, Friday and Saturday and there were no designated breaks. She received a flat hourly rate of $50. There were typically 30 to 40 people present on each shift with five to seven reception staff.
On 14 January 2023 the applicant arrived for work at approximately 6.00pm. There were three people on reception and 27 other workers in the building.

At approximately 6.30pm a male arrived at the premises. He was not wearing a shirt and he had a tattoo that the applicant knew meant he was a member of an outlaw motorcycle gang. He was escorted into a room where the applicant observed his behaviour as being quite odd as he was continually pacing around the room and did not seem to be relaxed. He was greeted by two workers. The applicant did not allow any other workers in with him due to his odd behaviour.
The applicant chose to go into the room herself to speak with him. He was agitated and said he wanted to see all the girls. She advised him that only two workers were available at that time.
The two workers took the male into another room located next to the office where the applicant was as she suspected he would likely become unpredictable. The applicant returned to her office.
Approximately five minutes later the two workers came to see the applicant and advised her the male needed to be escorted out of the premises as he was incoherent and mumbling and he jumped around as he aggressively threw a dog chain when he was asked to make payment.
The applicant asked two male clients who she knew to assist her in escorting the male from the building, which they agreed to do. They escorted him away from the building, walking him down the street and she remained in the building.
Everything settled down and then 15 minutes later the applicant was in the foyer and she saw the same erratic male had returned to the building. She saw and heard him kicking the front door as he attempted to regain entry and she watched him through a two way mirror located next to the front door area.
A female worker was arriving at the premises and the applicant was concerned she was outside with the erratic male. She opened the front door to allow her inside when the male attempted to follow her inside.
He pushed past and entered the building and ran to the workers’ dressing room. The applicant followed behind him and instructed all the workers to lock themselves in the gym located within the building so the male could not get to them.
The male came after the applicant. He was wild and began to grunt loudly as he approached her menacingly. The applicant turned and ran in the opposite direction and he chased after her. This lasted for a few minutes but the applicant does not know exactly how long he chased her. She was in fear for her physical safety and she was highly concerned for the safety of all the staff members as well.
The applicant attempted to calm him down but was unsuccessful. Shortly afterwards the NSW Police arrived at the building. More officers arrived and one attending officer had a broken jaw. The male was arrested and taken into custody following an altercation with the police.
While she was speaking with the police the applicant broke down emotionally, so much so that the police asked the attending paramedics to look her over.
The applicant was still crying when her employer contacted her by telephone following the incident. He told her to close the doors to the building. He later followed up by sending her text messages advising her she was a hero and adding that if she went home or to the hospital it would be a big deal. His main concern was the front door had been propped open by the police and if it was not closed the motor would burn out.
CCTV footage was taken of the incident but the applicant does not have access to it. Her employer knew what was happening at the site because of the CCTV coverage. He later shared still images of the incident with the applicant advising her to show them to the other workers to demonstrate that she could handle incidents such as this and that they did not require security at the site.
There had previously been a security guard assigned to the site between 7.00pm and 7.00am however a month before the incident the hours were cut in half by the applicant’s employer to save money. The guard was reduced to working from 12.00am to 7.00am.
The applicant provided a formal statement to Senior Constable Peter Hibbert of Leichhardt Police Station on 9 February 2023 and provides a copy of that statement for reference.
I note the date appearing on the front page of Senior Constable Peter Hibbert’s notebook is
9 February 2022. The statement commencing on page 111 is signed by the applicant on
14 January 2023 and is witnessed by Constable Winkler on that date.
Following the incident the applicant continued to perform her assigned work duties however as time progressed she began to experience horrible dreams which disrupted her sleep and she had feelings of anxiety which she later learned was the result of having developed post-traumatic stress disorder as a result of the traumatic incident.
On 10 October 2023 the applicant’s employer sent her a text terminating her employment owing to “the events of last week” as they cannot have fellow receptionists being threatened.
The applicant had sent a text message to a new, young trainee receptionist asking why she had suggested the applicant had stolen alcohol from the business. A co-worker told the applicant the situation was intended to make her resign from her employment.
She first consulted her general practitioner Dr Murali Nagaraj in August 2023 and spoke about what she had been experiencing. She was prescribed Setraline, Popranol and Endone.
There were no issues in the applicant’s life outside work which caused or contributed to her current injuries. She has been staying with her mother as she becomes overwhelmed and scared and does not like to be alone when her husband is away for work.
She has been unable to return to any form of work since her employment was terminated.

Applicant’s statement dated 27 May 2024

In her statement of 27 May 2024 the applicant describes her relationship with the second respondent as follows;
(a)    tools were supplied including computers, phones, girls, condoms to sell ladies, free alcohol for clients with a booking, and rooms to rent;
(b)    the applicant only worked for BTC’s parlours and was never allowed to work anywhere else. They were often told it was a conflict of interest if they did and they would be terminated;
(c)    there was no other director or owner input from 2019 to date;
(d)    the applicant had no level of control at all, every decision including paying the taxi drivers’ commissions for every new client had to be approved by BTC before payment was made, and the same for their wages paid at the end of every shift. All these decisions were up to BTC, the owner and her boss;
(e)    the applicant always worked set days and hours every week, for example 7.00am to 7.00pm (day shift) or 7.00pm to 7.00am (night shift) with no meal breaks as they were to eat as they saw fit while working. There were no designated meal rooms and they were instructed to take the portable phone to the bathroom to answer;
(f)    she was always paid $31.25 per hour, day or night, when working at the two other parlours which always equalled $375 a shift flat;
(g)    the contract and terms of work were applied verbally and in text messages;
(h)    the applicant never wrote a tax invoice and never completed a BAS Statement as she was an employee of BTC;
(i)    she did not sublet or employ any others as she was an employee. She has never supplied BTC with a quote or invoice for works to be carried out as she was a receptionist, manager and salesperson;
(j)    she never supplied any equipment and all she did was turn up and complete the same duties every week at the same time for the same pay;
(k)    her uniform was to be in all black and full makeup;
(l)    the applicant was directed at all times by BTC while at work through the phone system and the internal internet called IChat. Between the hours of 6.00am to 7.00am she was required to balance job sheets and count the float. That was then sent via IChat to BTC and the float and the Reserve which was the balance of the safe and the job sheet;
(m)     BTC could log into the camera and watch as well as having microphones to hear and see exactly what was being said and to make sure she was upselling and making the most amount possible as a sales provider. The cameras and microphones were on 24/7 to hear and see exactly what she was saying and doing with clients and working girls;
(n)    the applicant was providing a service that BTC had assisted her in learning which was how to sell and upsell sex. She had no skill prior to that on how to sell such a product;
(o)    she was employed on 27 December 2019 and trained by a senior staff member BRH on night shift and BTE. On day shift while training
BTC would call and IChat coach her on how to do things in that parlour such as upsell and how to get girls to bring clients back. He had the ability to do that with the assistance of the microphone and cameras;
(p)    the applicant never signed a contract that stated she was a subcontractor as she was his employee and trained to do exactly as BTC wished his business to run. She was trained in every aspect and in turn creating an employee/employer relationship, and
(q)    SIRA work status tools indicated she was an employee and she was a deemed employee. Status for tax purposes has no direct relationship to a person’s status as a worker for workers insurance purposes, and a person may be able to claim workers compensation for injuries sustained whilst at work.

Applicant’s statement dated 8 November 2024

In her statement of 8 November 2024 the applicant describes her employment history, the injury on 14 January 2023, her employment with the second respondent commencing on
12 January 2023, the delay in making a compensation claim and her current symptoms and conditions.
She received a flat hourly rate of remuneration being $50 per hour for each hour worked. At two other parlours she was paid in cash with pay approved on a job sheet by BTC at 7.00am. All the pay was always listed on BYC job sheets.
With the second respondent she picked up her weekly pay every Monday morning. It was formalised at BYC and recorded on their job sheets and delivered to her at the second respondent’s premises.
There were typically 30 to 40 female workers present each shift and five to seven reception staff, and most workers worked under false names.
The applicant describes the incident on 14 January 2023 consistent with her earlier statement, adding however that she injured her hip and lower back when attempting to stop the male from barging through the front door. The assailant had a big metal dog leash which he was swinging and she was afraid he would strike her with it.
Further details about the applicant’s termination are also included in this statement.
BTC’s text message to the applicant states;
“Hi BVB we regret to inform that owing to the events last week it best you do not return to BVD. We just cannot have fellow receptionists being threatened to the point where we have engaged full time…”[4]
[4] ARD page 9.
The applicant sent a text to a new young training receptionist asking her why she suggested the applicant stole alcohol. Another member of staff told her that was how BTC would get her to quit. She was not being performance managed or subject to any disciplinary proceedings at the time of her current injuries.
She was awarded a recognition payment from the police of $1,500 for holding off the violent bikie and protecting the 35 girls by locking them all in the basement.
The applicant provides additional information about the commencement of her employment with the second respondent.
BTC had been trying to buy BXCs for a long time. He entrusted the applicant to get the brothel up and running by hiring ladies and running the business during its busiest time which was at nights. She was motivated and not drug affected and so he entrusted her in getting the business up and running. She was very good at it and the ‘girls’ trusted and respected her.
He flew the applicant to Melbourne and she did a walk through of his brothels down there and helped set those facilities up as well. She was hiring ladies from Sydney for the Melbourne venues.
Before and after that time the applicant continued to be a night manager and her position did not change. She changed from BVD to BXCs. BTC told her about BXCs in about 2021 when he was attempting to buy it which he eventually did in December 2023.
She was in constant conversations over the phone with him and he discussed pay increases and putting her on the books when the company got better. He wanted to make BXCs the “biggest short stay boutique hotel” in Australia.
The applicant had a work phone and was taking calls continuously.
Her pay went from $80 an hour to $120 an hour when she moved to BXCs on
12 January 2023.
With respect to the delay in making a compensation claim the applicant states she spoke to BTC many times after the incident about her psychological health and that she thought she needed to see a doctor or psychologist about it. She told him about making a workers compensation claim. BTC would say she was being “ridiculous” and to “get over it”. He blamed her personal life, however she was not having any issues apart from suffering post-traumatic stress disorder from the incident.
The applicant continued to tell BTC she needed a psychologist and treatment and he would abuse her and talk to her about other aspects of the business, saying there were too many credit card payments and “too much cash out payments” on the schedule and made her feel worthless and stressed about her job, as if the reason for her issues was that she was not doing a good job.
She first visited the general practitioner in about August 2023. She was becoming more and more anxious, she had lost weight and her psychological state was not good.
The applicant spoke to her husband and mother the night the incident happened and continued to talk to them about her declining psychological health from that time on. They both saw visible changes in her physical and psychological health. She went from 80kg to 58kg from the date of the incident by the end of the year. She was in constant fight or flight mode.
The applicant was not sure what was wrong with her and fell into a depression.
She attempted to complete a workers compensation claim form and give it to BTC who denied ever receiving it.
At the time he was involved in a murder trial and threatened her by telling her that she would have to talk to BVC about the work injury issue. This scared her and added to the delay in making a claim. She was petrified of BTC and his associates.
It finally got to the point where she was overwhelmed and she contacted solicitors. The first solicitor was a friend who as a result of intimidation said he would not take her claim any further.
The applicant had never made a compensation claim before and was not aware of the process.
The applicant’s current symptoms and conditions include; flashbacks, nightmares, extreme nervousness in the dark, she feels she is a shell of her former self, she has low self-esteem, her whole life has changed for the worse after the incident, she becomes teary and cries a lot now, men with similar appearance scare her, it was always dark and there is always that feeling another assault could happen, she finds it hard to concentrate or focus, she suffers from extreme anxiety and sometimes cannot leave the house due to extreme fear, her personal relationships with family and friends have suffered due to her psychological state, her sleep is disturbed due to recurring dreams and she takes sleeping tablets so she can sleep longer than a few hours, her mother has moved in with her to help look after the house and her child, she rarely socialises and she has been unable to return to work since August 2023. She is scared to open the door, living in constant fear.
The applicant has received medical treatment from Dr Nagaraj, general practitioner, BSF, clinical counsellor at Better Talk, and a post-traumatic stress disorder physician.
The medications first prescribed to the applicant on 3 October 2023 are Sertraline, Propanol and Endone.

Applicant’s statement dated 28 January 2025

In her statement of 28 January 2025 the applicant states she had many discussions with BTC about her role managing BXCs.
She commenced maternity leave on 17 March 2021 and returned to work on 18 June 2021. BTC paid her $5,000 whilst on maternity leave and to make sure she would return to work to manage BXCs.
While she was on maternity leave the applicant spoke to BTC daily about the new girls, hiring of new girls, looking after the new girls, running of the businesses, fees charged, competitors, how they would BTC the businesses and the best way of doing that.
A big part of the business was making sure the girls were happy and managed in the correct way and that is what BTC found her very good at.
Every single week from March 2021 to starting work at BXCs in January 2023 they would speak about this promotion and managing BXCs. The reason it went on for so long was because BTC wanted to make sure the other staff at BXCs did not get annoyed by a new night manager.
In that time the applicant learned every part of the business he wanted her to learn under his and his strict training only. All this was happening while the applicant was employed at BVD two nights per week; Sunday 7.00pm to 7.00am and Tuesday 7.00pm to 7.00am. She was also doing a lot of work on the phone looking after the hiring and allocation of ladies.
On 17 June 2021 BTC called her and asked her to start training at BXCs as a receptionist and she was then told not to attend. She returned to work the next day after finding a babysitter. She commenced at BYC that week and the following week returned to her usual shifts at BVD.
On 3 September 2021 BTC paid for her flights and accommodation in Melbourne for two days. The purpose of the trip was to discuss her new night manager position at BXCs. She was driven to all the brothels by BTC himself. They discussed managing the businesses and how they were run. The applicant met the manager of BXCs named BWC who interviewed her briefly in a café the morning she was to leave back to Sydney.
The applicant was groomed into this position with such hope that it would be safe and profitable and with so much excitement and zest for the business. Little did she know that going to work that day she would never return home the same. Her whole life changed and she did not understand how until being diagnosed with post-traumatic stress disorder.
The applicant commenced work at BXCs on 5 January 2023.
Throughout maternity leave the applicant was in control of a work phone and took calls and directed new girls to brothels. She continued to handle phone calls and direct new girls for all brothels in Sydney and Melbourne.
BTC’s emphasis for her was that she was a female and worked with the girls very well and was able to keep them at the establishments because of good management.
She never had an ABN and never submitted a tax invoice to the second respondent. She was paid a set hourly rate by BTC. Her wages are recorded on every job sheet on every night she worked. She has never held her own insurance and considered herself an employee.

Applicant’s statement dated 17 March 2025

In her statement of 17 March 2025 the applicant addresses the surveillance footage taken between 6 and 10 December 2024.
The person filmed in that surveillance footage is not the applicant. She does not know the person in the surveillance footage. She does not and never has lived at those addresses and to the best of her knowledge does not know anyone who lives at those addresses.
She was not living in Victoria at the time of the footage.
The applicant does not own a Toyota Hilux, the number plates are not registered to her and to the best of her knowledge she does not know who owns it.

Cross examination of the applicant

The applicant was cross examined by the respondents. As the transcript is available reference will only be made to the applicant’s evidence in cross examination where it appears relevant.

Statement of BUH dated 13 March 2024

BUH was at that time 39 years of age, and he was employed as a truck driver and as security with 4Site Security.
He worked at BXCs as security as directed by his employer 4Site Security from 2018 to currently. His shifts generally went from 7.00pm to 7.00am and he worked up to seven days a week.
He met the applicant while working as security. She worked five to seven days a week and did the night shifts. He saw her working regularly as he also did the night shifts. This was over a few years while he worked at BXCs.
BUH knew the applicant as the supervisor/general manager of BXCs. He did not know her exact position. He saw that she was in charge of running the venue. He witnessed her delegate clients, delegating other employees, handling payments and generally running the venue. She would often be behind reception while working.
In conversation with the applicant she also told him she managed the Lewisham brothel run by the same business owner BTC.
It was common knowledge that all employees were paid cash in hand at BXCs.
There is no doubt in his mind that the applicant was an employee at BXCs during about 2019 and onwards up to January 2023 and beyond.

Statement of BVE dated 24 May 2024

BVE worked for BTC’s parlours (BYC, BVD and BXCs) under the alias BUJ between 15 August 2020 and 21 February 2023.
She met the applicant in late 2020 when she was pregnant with her youngest daughter and they formed a friendship through work.
BVE saw the applicant working every Sunday and Tuesday at BVD and very occasionally she would pick up additional shifts at BYC.
It appeared to BVE that BTC would ask the applicant to help more than other receptionists and the applicant would always comply as she valued her position at the parlours and always worked her hardest.
In late 2022 BVE moved over to BVD to only work on the applicant’s shifts. She can confirm the applicant was an employee of BTC. She had a roster and got paid.
BVE has seen her collect her pay in the mornings upon shift completion at BVD.
To BVE’s knowledge all receptionists were employed by BTC and only ladies were subcontracted, even though the ladies did not have to hand over an ABN or sign a subcontractor agreement.
The applicant had even received maternity leave while she was off with her youngest daughter. She more than often had to deal with work related issues outside of her rostered shift times as well.
BVE worked with the applicant at BXCs where she was assaulted and suffered the work incident with a client. The applicant confided in her about her issues after the work incident. BVE was the first to know and heard how it has negatively impacted her since.
The applicant’s duties included but were not limited to greeting clients, booking ladies with clients, answering phones, booking ladies on jobs outside of the parlour, recording the jobs, talking to and overseeing maintenance jobs, looking after the ladies on shift, liaising with other employees (receptionists), handling and taking payments, and communicating with BTC.

Statement of BWE dated 3 May 2024

BWE was at that time 37 years of age. She worked full time for BTC’s companies BUF and BVD from February 2016 until October 2023.
The applicant was hired as an evening receptionist for BVD on 27 December 2019.
BWE witnessed the applicant managing BVD and she was heavily involved in the running of the business as receptionist, managing the clientele and managing employees as well as recruitment of employees and BTC.
The applicant was also made to be available on call 24 hours, seven days a week to cover any staff shortages and discuss business activities with BTC.
The applicant was paid cash in hand at a rate of $30 per hour and her pay was expensed at the end of each 12 hour shift of $360 (7.00pm to 7.00am).
BWE also affirms the applicant was appointed by BTC to manage BXCs as head receptionist in January 2023 but shortly returned to BVD as she was assaulted by a customer.

Statement of BTC dated 24 September 2024

BTC’s statement of 24 September 2024 is made in response to the applicant’s claim against BUE in previous proceedings.
BTC confirms he is the sole director of the second respondent which trades as BXC.
The applicant was a self-employed agent and was engaged as an independent contractor by BVD between 27 December 2019 and 11 January 2023 and 10 February 2023 to
10 October 2023 as a receptionist. At BVD she only worked Tuesday and Sunday nights from 7.00pm to 7.00am.
The applicant worked as an independent contractor at BXC between 12 January 2023 and 9 February 2023 on Thursday, Friday and Saturday nights from 6.00pm to 6.00am.
Her engagement at BVD was terminated on 10 October 2023 after she threatened a fellow receptionist.
The applicant’s time at BVD and BXC was working as a receptionist. Her role was to complete reception tasks of answering the front desk phone, arranging and recording bookings and taking payment from clients. She was never engaged as a “Human Resources Manager” at either BVD or BXC as such job title did not and has never existed.
At both BVD and BXC the applicant worked in a team of approximately two to three other receptionists who were also engaged as independent contractors.
She was never an employee of BVD or BXC. There has never been;
(a)    an employment contract or agreement;
(b)    a resume or application for employment submitted;
(c)    any performance appraisals or staff meetings, or
(d)    any pay slips or group certificates issued to the applicant.
She does not appear on their time sheets, wages records, financial statements or superannuation register. For all intents and purposes she has never existed as an employee of any entity of the company group which includes the second respondent.
The applicant was always responsible for her own taxation, superannuation, work cover personal insurance and workers compensation.
BTC was not informed by the applicant or anyone else that she had been physically injured in any way during the incident on 14 January 2023 or that she was suffering from any mental health injuries as a result.
There are conflicted and contradictory claims as to what happened during the ‘incident’ in the applicant’s documents and how she sustained her alleged physical injuries and/or alleged mental health injuries.
An example is in her formal statement to the police on 9 February 2023 the applicant’s account of the incident states she said “Stop! No! you are not allowed in” and tried to stop the male by using her hand. On 5 October 2023 she tells her doctor she was “tied and beaten by a stranger” at the workplace in January 2023.
When BTC spoke with the applicant on the day of the ‘incident’ after the police had left she was calm and composed and did not mention or complain about sustaining any injury because of the ‘incident’.
She never mentioned to him that she was experiencing any mental health injuries between the ‘incident’ and 10 October 2023 and this was never reported to him by the other staff member she worked with.
BTC did not hear or see any signs or symptoms of any physical or mental health injury during the time between the ‘incident’ up until 10 October 2023 and he understands no medical attention was sought until 12 October 2023 almost 10 months later and unsurprisingly two days after she was sacked.
He never received a workers compensation claim form from the applicant and knew nothing about her claims until she made an application in the Commission. This application was sent to the BXC workplace on 30 April 2024.
BTC emphatically and totally denies the applicant’s claims that he has in any way threatened her.
Since 10 October 2023 and quite recently BTC was contacted by BXD and reliably told the applicant has contacted them making enquiries about available reception work at their brothel and requesting a job as a receptionist with an immediate start. There was no mention of any physical or mental health injury which would impact her ability to work during this conversation.

Claim Form dated 18 December 2023

The applicant’s claim form dated 18 December 2023 includes;
(a)    the applicant was HR manager of BXC, brothel night manager, overseeing business at the time of the injury;
(b)    she was violently threatened and accosted by an unruly patron, she locked everyone in the gym as he chased her until police arrived when they tasered him;
(c)    she hurt her hip running away from him but she was diagnosed with post-traumatic stress disorder, she is scared to open her door, she wakes up to bad dreams every night of him killing her;
(d)    he chased her around the whole downstairs area with a dog collar;
(e)    she was not allowed to stop work on 14 January 2023;
(f)    she reported the injury/condition to the owner BTC;
(g)    the organisation paying her wages when she was injured was BXC and the employer contact is BTC;
(h)    she had no other employment and only worked for BTC;
(i)    the applicant worked full time starting with this employer on 27 December 2019;
(j)    her standard hours were 36 plus each week at $50 per hour and her usual earnings were $1,800 to $2,100;
(k)    Dr Nagaraj is her nominated treating doctor;
(l)    she cannot work, and
(m)     she gave this claim form to her employer in August by post, he first received it on 20 August 2023 and the worker’s certificate was received on 27 August 2023.

Victims Services NSW Government 17 April 2024

The applicant received a Category D recognition payment of $1,500 as a primary victim of an act of violence in acknowledgement of the distress and trauma she experienced as a result of the act of violence.
While the evidence did not indicate that there was a physical assault the assessor found that the actions of the offender caused her to perceive or apprehend immediate and unlawful violence in the nature of an assault.
The assessor was satisfied the evidence establishes the applicant sustained psychological harm as a result including a diagnosis of post-traumatic stress disorder.

Text messages between the applicant and “BTC Boss”

The reference to “BTC Boss” shown on a series of text messages between him and the applicant is assumed to be a reference to BTC which is not disputed.
I agree with the second respondent these are difficult to makes sense of as they are screenshots which have been cut or chopped. Where relevant these are referred to in the discussion below.
In general they appear to show close and regular contact between the applicant and BTC including regarding her work at BXC.

Text messages 10 January 2023 to 6 February 2023

The text messages of 10 January 2023, 16 January 2023 and 6 February 2023 do not show who they are from however the messages are to “BVB’s new phone” and it is assumed the applicant is the other party to the messages.
The messages on 10 January 2023 refer to the other person working on Tuesday night at 7.00pm. She asks the applicant to ask BTC if she can just work every Tuesday from 7.00pm to 3.00am with the applicant until she leaves.
On 16 January 2023 the applicant asks if the other person wants Thursday or Saturday night, it is up to her, she replies that she can do Thursday 7.00pm to 12.00am and Saturday a long shift and the applicant provides the address of BXC.
On 6 February 2023 the applicant says she just left BXC and she is back at BVD tomorrow night.

BVD Email regarding COVID-19 Vaccinations 20 September 2021

An email from email address [email protected] to the applicant is dated 20 September 2021.
It is addressed to Dear Sir/Madam, Re BVB and reads;
“This letter serves to confirm that BVB has not been able to work in accordance with a NSW Statewide Covid lockdown since 26 June 2021.
However I understand that we shall be allowed to re-open on 18 October 2021 for employees and clients who are double vaccinated.
BVB will be double vaccinated prior to this date so she will be ready and allowed to resume work.
Kind regards,
BTC”

Talent Release Deed 15 July 2022

A Talent Release Deed is for a project titled “Recruitment of Staff” for client BYC, the person appearing is the applicant and the production date is 15 July 2022.
The Deed between Visual Domain Australia Pty Ltd and the applicant includes that she agrees and acknowledges she will not be paid for the appearance and she agrees she provides the appearance voluntarily without expectation of any monetary or other compensation.
The Deed is unsigned and undated.

Redacted NSW Police Report Notice of Decision dated 29 November 2023

General Event Details include that a report of the incident on 14 January 2023 was created at 20:19 hours.
The victim organisation is BXC Brothel, the victim in this matter is the applicant described as a human resources manager within the premises, as well as two police victims.
The incident is described in detail, including that the accused was tasered, he struck a constable in the left side of his face with a closed fist causing immediate pain, a laceration and bleeding to his cheek, further police were called and after several minutes of violent confrontation he was eventually handcuffed and placed under arrest. Two other police were injured and paramedics were called.
The accused was taken to hospital and on discharge conveyed to Newtown Police Station and he was before the courts.

Medical evidence

Dr Assad Saboor, independent psychiatrist

Dr Saboor provides the only medico legal report in evidence dated 21 August 2024.
Dr Saboor in summary says the applicant presented with symptoms of major depressive illness and post-traumatic stress disorder in the context of being subjected to assault in an incident at work in which she felt threatened and was chased by a man carrying a metal dog lead chain. She was threatened and the man was trying to sexually assault her. This has resulted in the development of a psychological injury.
The applicant’s employment was the substantial contributing factor for the development of the psychological injury.
Dr Saboor’s opinion is that the applicant is totally incapacitated for any type of employment including her pre-injury duties or any other duties. She is currently unfit to work. It is likely that she will be fit in the near foreseeable future.
Regarding treatment Dr Saboor opines she needs to see a psychologist on a regular basis and a psychiatrist on a monthly basis. Her antidepressant medication needs to be further increased and her treatment to be optimised. The doctor recommends that she should be treated with a higher dose of her medication for at least another 12 months or longer if required.
The prognosis is uncertain as the applicant has not had adequate treatment so far. It is not an aggravation of a pre-existing condition. It is uncertain when the aggravation will cease as she has not been stabilised and treated quickly.
An assessment of whole person impairment could not be carried out as the applicant’s condition has not been stabilised.
Dr Saboor recommends she should be referred to a psychiatrist, her medication needs to be further increased and she should have this treatment for another 12 months before the determination of permanent impairment can be made.

Dr Murali Nagaraj, treating general practitioner

Dr Nagaraj referred the applicant to Ms Natali Lazaroski, psychologist, at the Shellharbour Clinic on 5 October 2023.
The referral includes;
“BVB presents with a history of assault – was tied and beaten up by a stranger at her workplace in January. She has PTSD symptoms. I would appreciate your urgent review and advice.”[5]
[5] ARD page 88.
On 19 October 2023 Dr Nagaraj provides a Medical Certificate that states;
“This is to confirm that BVB was seen on 25 August 2023 when she reported being assaulted by a stranger at work in January 2023. She presents with symptoms consistent with a diagnosis of post traumatic stress disorder (PTSD). She has been referred for psychological intervention and has been started on an antidepressant/anti-anxiety medication too.”[6]
[6] ARD page 89.
Clinical records include on 25 August 2023;
“reported a man broke into her workplace in January, was beaten with dog lead etc
This man is in jail
Mood has been anxious, feels everything she does is not right.
Doesn’t want to leave home, feels exhausted, nightmares.”[7]
[7] ARD page 98.
Dr Nagaraj prescribed Sertraline and Temazepam for insomnia.
Dr Madhu Nagaraj saw the applicant on 3 October 2023 and records;
“incident at work, has video, assault – se eprevius notes, shown me the video
Feeling amnxious can;pt sleep, wakes up crying, some flash back
Cries for no reason, meds feels not helped her
Temaze once at night
Some days forget to take sertraline
No sel;f harm tought, no TOHO
Can’;t work
Did t go through work cover, wanto go through it now”[8]
[8] ARD page 99.
The applicant was prescribed Deralin, Sertraline and Endone for her back pain.
On 5 October 2023 Dr Murali Nagaraj records;
“-walked in upset and crying
-noted previous consult with Madhu and the one with me-workplace assault by a stranger-wasteid to wall,physically assaulted-showed videos of the man being pacified by 4-5 police officers etc”[9]
[9] ARD page 99.
Dr Nagaraj issued a NSW certificate of capacity, prescribed Endone and referred the applicant to Ms Lazaroski.
On 14 October 2023 a record is made that the applicant attended a trauma clinic in BZB the day before, and she had hypnosis which brought up a lot of trauma.

Certificates of Capacity

Dr Nagaraj certified the applicant as having no current work capacity between 25 August 2023 and 7 May 2024 due to post-traumatic stress disorder with date of injury
[10] ARD page 127.
14 January 2023. She was first seen at the practice on 25 August 2023. The injury is related to work as the applicant was “allegedly assaulted by a stranger at work. As tied and beaten.”[10]
Dr Nagaraj also provides certificates of capacity dated 7 February 2025 and 10 March 2025 that certify the applicant as having no current capacity for any work as a result of post-traumatic stress disorder between 7 February 2025 and 7 April 2025.

Ms Natali Lazaroski, treating psychologist

Ms Lazaroski’s clinical records include that on 17 January 2024 the applicant was advised the clinic was not able to facilitate workers compensation claims but she could definitely pay as a private patient.
On 5 July 2024 Ms Lazaroski thanks Dr Nagaraj for his referral of the applicant who commenced psychological treatment on 28 June 2024 to address difficulties with post-traumatic stress disorder.
The applicant presented with symptoms consistent with post-traumatic stress disorder following a traumatic event at her workplace where she was chased and attacked by a patron.
She started experiencing anxiety and panic attacks at the thought of going to work some time after a traumatic event which resulted in taking time off. Her employer who minimised and dismissed her concerns later fired her under false claims.
Currently she was experiencing nightmares, flashbacks, hyper-vigilance, feeling unsafe, preoccupation with the traumatic event and avoidance of leaving the home alone.
They had discussed commencing Eye Movement Desensitisation and Reprocessing (EMDR) therapy and had a second appointment in preparation.
The record of a session on 5 July 2024 includes the trauma history of the applicant being attacked by a male with a dog lead at her workplace, leading to significant fear and anxiety, she was afraid for her life and that she would be raped or killed. This event has led to ongoing symptoms of post-traumatic stress disorder.
The applicant attended EMDR therapy sessions on 12 July 2024 and 6 August 2024.

Other evidence

Applicant’s Commonwealth Bank statements dated 10 February 2021 and 24 February 2021

A Commonwealth Bank statement for an account in the joint names of the applicant and her husband shows a cash deposit made on 10 February apparently in 2021 of $2,000 and a reference to “BTC”.
A second cash deposit shown on 24 February apparently in 2021 is of $3,000 with the reference “BTC.”

Applicant’s ANZ Bank statements 16 November 2023

On 6 October an entry shows “BTC” and the deposit of the amount of $10,425.

Employee tax details undated

A screenshot of an Australian Taxation Office form titled “Employee tax details”, to be given to an employer so they can make contributions to the person’s chosen superannuation fund, shows the employer as a company associated with the second respondent, the employment type as part time, and includes the personal details of the applicant.

Virgin Australia Travel Reminder Text

A screenshot of a Virgin Australia Travel Reminder is for a flight on 7 November from Sydney to Melbourne however there is no year or passenger details shown.

ASIC search second respondent 17 October 2024

The second respondent was registered in Victoria on 24 March 2021. The registered address from 28 April 2022 is care of Goldman & Associates in Victoria.
From 30 June 2021 BTC is the Director, Secretary and owner of the total of 120 shares in the company.

Letter of claim dated 17 October 2024

A claim was made to the second respondent care of Goldman & Associates in Victoria on
17 October 2024 for weekly benefits from 14 January 2023 to date and continuing at the rate of $1,800 per week, and medical or related expenses with accounts to be forwarded in due course.
The report of Dr Saboor dated 21 August 2024, the Work Injury Claim Form dated
18 December 2023 and the applicant’s statements of 5 December 2023, 17 April 2024 and 27 May 2024 were served.

Section 78 Notice dated 6 November 2024

The first respondent issued a s 78 notice on 6 November 2024 denying liability for the claim, referred to in the Background above.

Email Goldman & Associates 19 November 2024

By way of an email addressed to PK Simpson, Goldman & Associates advised on
28 October 2024 that they were no longer the accountant for a company related to the second respondent and they forwarded correspondence to BTC.

Email Tisher Liner FC Law 19 November 2024

On 19 November 2024 Ms Madeleine Andrews of Tisher Liner FC Law advised PK Simpson by way of email that they have instructions to accept service for notice of legal documents on behalf of their clients including the second respondent.
They requested the Application be provided to them immediately and that they be immediately listed as the legal representatives in the Commission Portal, with confirmation to be provided to them in writing.

Wages schedule 14 November 2024

The applicant’s wages schedule shows a net wage loss for the period 15 January 2023 to
14 November 2024 of $293,889.16, calculated at $50 per hour remuneration increasing to $80 per hour to $120 per hour when the applicant moved to BXC on 12 January 2023, and at 12 hours per day over three days per week or 36 hours and 12 hours a day over six days per week at $50 per hour, with an increase calculated using the Australian Bureau of Statistics.

List of payments to 22 February 2024

Medical treatment expenses for treatment mainly received from Dr Nagaraj and Dr M.Y.T. Pty Ltd between 17 November 2023 and 22 February 2024 have been paid by the first respondent.

First respondent’s evidence

The first respondent relies on the statement of BTC of 24 September 2024 referred to above, as well as the s 78 notice of 8 January 2024 and notices following internal reviews dated 1 March 2024, 28 March 2024, 29 April 2024 and 18 September 2024.

Lee Kelly Commercial investigations report dated 18 December 2023

Lee Kelly Commercial Investigations provides a report on 18 December 2023 that includes a signed statement of the applicant, her NSW Driver Licence, the redacted NSW Police Report, documents provided by the applicant and information provided by BTC.
Emails from BTC and [email protected] to the first respondent of 26 October 2023,
2 and 3 November 2023 state that the applicant was never an employee of any of their companies, she was a self-employed agent who offered receptionist duties once a week on a Tuesday night, she took care of her own taxation, superannuation and work cover matters, and it is clear there is no employer/employee relationship.
There will certainly be no payslips, payroll number or bank statement which shows regular employer payments or any contract of employment.
With regard to the incident of 14 January 2023 the matter was quickly resolved, the applicant showed no signs of any concerns and in fact was able to continue to complete her shift as per normal, in fact she never complained about it, nor to the best of their understanding did she seek any medical attention.
Some 10 months later they were amazed that she submitted a claim for post-traumatic stress disorder which they believe is totally fictitious and false.
After it came to their attention the applicant was extorting a client with a demand for money, drug dealing and then subsequently threatening a fellow colleague with a totally unprovoked and vicious tirade of abuse they asked that she should not return.
More details of this extortion, drug dealing and or subsequent behaviour can be provided.
Faced with no work the applicant and another receptionist who was also terminated conspired to lodge simultaneous work cover claims to extract money.
The email of 2 November 2023 includes;
“At this point I can inform that both Ms BVB (claim number 2023200908) and (redacted) have both conspired to submit simultaneous and fraudulent claims.
You might think it is coincidental, but we beg to differ.”[11]
[11] First Respondent Reply page 35.
An unsigned letter dated 3 November 2023 to the first respondent includes the above and in addition refers to the applicant extorting a client with a demand for money, (as per the evidence) drug dealing, in that she clearly provided the drugs and wanted payment for it, and then finally the vicious tirade of threatening abuse of a fellow receptionist, we asked that she should never return to the business.
This also includes the following additional information;
“Ms BVB then submitted an invoice via sms for money she felt she was owed fro her services. Not wanting to engage with this person any further the business paid the amount by cheque (as per evidence) and she left.”[12]
[12] First Respondent Reply page 44.
The other receptionist who was also terminated at the same time and who also conspired to lodge a simultaneous work cover claim to extract money from icare is named as BWE.

Lee Kelly Commercial investigations report dated 16 February 2024

This supplemental factual investigation report also named the insured as BUE.
BTC was contacted to request he participate in an interview and he responded that his legal advisors had instructed him not to participate further, adding that the applicant was never a registered employee of the insured as she wanted to be able to maintain social security benefits whilst performing contracting duties for the insured.
The applicant was contacted and asked to provide further evidence of her employment with the insured. She provided information of an ATO lodgement of payment for part time employment with BYB, and a corresponding ANZ Bank statement date 6 October 2023 confirming payment received by her totalling $10,425 from the same entity. A search found this entity formerly operated under the trading name of BVD Brothel.
An Equifax company search of 9 November 2023 shows BUE had business names of BSD, BZC, BTD and BUF.
The current director and secretary was BTC and the registered office was care of Goldman & Associates in Victoria.
The Equifax personal name extract of BTC of the same date shows he currently held 29 roles and four shareholdings, including as director and secretary of the second respondent.

Medical information

Dr Nagaraj’s referral of the applicant to Ms Lazaroski dated 5 October 2023 discussed above with the reference to the applicant being tied and beaten up in January, is relied on by the first respondent
Dr Nagaraj’s answers to the first respondent’s questionnaire dated 18 November 2023 is relied on. Dr Nagaraj states the applicant reported that she worked as a manager at BXC’s agency and while at work she was tied up and beaten by a stranger.
The doctor diagnoses post-traumatic stress disorder and soft tissue injury attributable to work as the assault happened at work. He agrees the employment was a substantial contributing factor in the development of her injury. It is the main causative factor in his opinion.
Dr Nagaraj states the applicant currently has no capacity for any kind of work, she has been referred to a psychologist and started on a medication, and timeframes for suitable or pre-injury work are uncertain currently.
The applicant has had several consultations since 25 August 2023 and prior to this she has mostly been seen for some general health issues over the last three years.
Going forward Dr Nagaraj says he may refer her to a psychiatrist if needed.
The clinical records of Albion Park Medical Centre where Dr Nagaraj practices are discussed above.

Second respondent’s evidence

The second respondent relies on the statutory declaration of BRG, and the statements of BTC and BZD.

Statutory declaration of BRG dated 23 October 2024

BRG is the manageress of the second respondent which trades under the name BXC.
She has been employed there for six years and is totally responsible for the running of the business which operates 24 hours a day, seven days per week. She is responsible for everything which occurs there and is fully aware of the incident on 14 January 2023.
BRG confirms that the applicant worked at BXC between 12 January 2023 and
9 February 2024 as a temporary night receptionist on Thursday, Friday and Saturday nights from 6.00pm to 6.00am. She remembers the period as she trained the applicant herself and was effectively her boss.
BRG can categorically state that the applicant was never an employee of BXC. She was responsible for the employee’s calculation of hours worked and the applicant never appeared on any time sheets or wage journals.
In fact there was no paperwork of any sort which would indicate anything other than the applicant was a self-employed agent engaged as an independent contractor, the same as many of the other receptionists.
By this she was responsible for payment of her own taxation, superannuation and work cover insurance.
BRG is familiar with the incident on 14 January 2023, she has seen the video and she spoke to the applicant directly afterwards. The applicant indicated to her that she was fine and had even been cleared by the paramedics to continue working. She made no mention of sustaining any injury to BRG, the police, paramedics or other staff members.
BRG was not surprised that an ultrasound of the applicant’s right lower back and right hip showed “no abnormality in the region of interest.”
BRG also notes many different inconsistent versions of the applicant’s alleged injuries “as there seems to have been a significant departure from the original version of the event.”[13]
[13] ALAD 3 page 5.
BRG is also aware the applicant has been looking for reception work having contacted BXD earlier this year.

Statement of BTC dated 12 December 2024

BTC’s statement of 12 December 2024 provides a history of the applicant being a self-employed contractor who he was told provided services to various businesses.
She was engaged on a casual basis as an independent contractor for an uncommitted period as a receptionist at BXCs between 12 January and 9 February 2023. Her engagement ended after four weeks due to her inappropriate behaviour.
The applicant chose her casual shifts on Thursday, Friday and Saturday nights from 6.00pm to 6.00am.
She returned to her engagement at BVD after her engagement at BXCs ended.
The applicant’s engagement as a contractor at BVD was ended immediately on
10 October 2023 because of her inappropriate behaviour with staff and clients.
BSF, general manager at BXC informed the applicant her engagement as a contractor ended immediately as there were claims against her for misappropriation of money at the BXC premises.
BTC informed the applicant that her casual receptionist services were no longer required at BVD on 10 October 2023.
The applicant had threatened another receptionist at BVD over the phone, was caught by other receptionists selling drugs at the premises and attempted to blackmail a client to pay her $5,000 for drugs she sold him.
She blackmailed the client by telling him if he did not pay her the $5,000 for the drugs she had sold him she would contact his wife and inform her that he was a client of BVD.
BTC annexes a series of Facebook messages apparently between the applicant and the client and his friend and a text message of a receptionist at BVD to BTC and her file note dated 22 September 2022.
BTC states that it was reported to him by other receptionists at BVD that the applicant was turning up to work under the influence of illicit substances.
A text message from a receptionist at BVD to BTC is annexed advising that “BVB running around off her face used a client to take her to get an abortion after sleeping with some other guy.”[14]
[14] ALAD 3 page 8.
BTC states that it was reported to him by other receptionists and clients at BVD that the applicant was dealing illicit substances at BVD during her shifts.
He sent the applicant a text message on 10 October 2023 advising that her services were no longer required as a result of her behaviour, and the text message is annexed.
The applicant’s role as a receptionist was to complete reception tasks of answering the front desk phone, arranging and recording bookings and taking payment from clients. She was never engaged as a “Human Resources Manager” and the job title has never existed now or then.
During casual shifts the applicant was with approximately two to three other receptionists who were also engaged as independent contractors. She never undertook managerial tasks as she was a casual and employees or BTC did this.
The applicant had no involvement in redesigning BXC and she had never assisted with or had any involvement with any businesses operated by BTC in Melbourne. She claims she assisted him with hiring ladies for BYD in Melbourne but that business did not open until 1 December 2023 after her engagement at BVD had ceased. BTC had no contact with her after that.
BTC states the applicant was a self-employed contractor referring to there never having been an employment agreement or arrangement verbal or written, and the letter from his accountant BZD confirming she was never an employee is annexed and discussed below.
The applicant clearly stated to BTC before her engagement as a contractor receptionist at BVD on 27 December 2019 that she insisted on being engaged as a self-employed contractor because she was receiving family allowance payments from Centrelink.
The applicant’s ANZ Bank statement dated 6 October 2023 shows a family allowance Centrelink payment for $184.24 and is annexed to the statement.
The applicant requested she receive her contractor fees in cash. She never received sick leave or annual leave and decided her own hours and shifts and insisted this be casual to allow her to be engaged elsewhere. She took her contractor fee herself usually at the end of each shift.
BTC states the applicant provided her services to other third parties between
27 December 2019 and 10 October 2023. She was constantly looking for other places to provide her services to.
BTC provided the applicant with a reference on about 27 December 2022 for a commercial property business in Sydney and he confirmed she was a self-employed agent at BVD. The applicant advised him she was engaged by that business for a couple of months after he provided his reference.
The applicant wore her own clothes during her shifts and was never directed as to what to wear by BXCs or BVD, or as to how she needed to present during her shifts and there were no rules as to hair, makeup and clothing.
There was no conversation between BTC and the applicant to have her put on the books at BXC or BVD as an employee.
Regarding the incident on 14 January 2023, after the incident the applicant never told or suggested to BTC, and he did not hear from anyone else engaged at BVD, that the applicant had been physically injured in any way or that she was suffering from any mental health injuries because of the incident.
BTC referred to many different stories as to what actually happened during the incident and many contradicting claims and she has never explained or suggested how she sustained her alleged physical and mental health injuries from the incident.
The applicant has claimed multiple different stories in her many accounts; she was tied and beaten, hit by a choker chain, yelled at by the man and at other times does not mention any assault.
She did not mention physical abuse or injury to the NSW Police Officer and no NSW Police Officer received a broken jaw but received bruising. The applicant was given the ‘all clear’ by paramedics to complete her shift that night which she did.
The applicant was not crying when she called BTC after the NSW Police and paramedics had left and she did not display or express any signs of distress, she was calm and composed.
No workers at BVD ever mentioned or reported to BTC that she expressed or showed signs of physical or mental health injuries and her behaviour was not described as any different after the incident.
BRG was the assistant general manager at the time of the incident and confirmed with BTC that she did not observe any signs of any physical or mental health injuries. Her statement discussed above is attached.
The applicant never told BTC she was going to make a workers compensation claim and he saw no signs or symptoms during the time proceeding the incident.
The applicant sought medical attention two days after her engagement at BVD had ended. BTC strongly considered this was because she was unhappy that her engagement at BVD had ended.
A screenshot of a Facebook message BTC says is from the applicant to BWE, another receptionist at BVD whose engagement had recently ended, stated that the applicant intended to make up a claim so she could sit at home and do nothing whilst getting paid. A Facebook message is annexed and reads “I heard you can make up some injury and you will get paid to sit at home for as long as you want. That’s what I am going to do.”
BTC never received a workers compensation claim form from the applicant and knew nothing about her claims until he was sent this application by her legal representative on
30 April 2024.
BVD do not have a copy of the CCTV footage of the incident that was provided to NSW Police. BTC is informed that the applicant holds a phone video recording of the incident taken during the incident but BTC does not have a copy.
BTC refers to the applicant’s additional untrue claims that he emphatically and totally denies that he has in any way threatened her. He has never had any allegation like this before in his life.
He has never intimidated the applicant’s solicitor as she claims, or intimidated anyone.
BTC has been contacted by other people in the brothel industry who informed him that since 10 October 2023 the applicant has contacted them making enquiries about available receptionist services at their brothels and requesting engagement as soon as possible.
He was informed that during a phone call to the BXD in April 2024 the applicant did not mention any physical or mental health injury which would impact her ability to provide services as a receptionist.
BTC has reviewed all the evidence provided by the applicant and he completely denies she was ever an employee of corporations including the second respondent.
BTC strongly disagrees with all claims made by the applicant and that she obtained any physical or mental health injuries during the incident or as a result of it.

Statement of BZD dated 14 December 2024

BZD is the bookkeeper during the period 27 December 2019 and 10 October 2023 including for the second respondent.
The applicant was not an employee and was never provided with any payslip or group certificate.
She was never listed as an employee and never appeared on any of the documentation in relation to employees, including any documentation of the second respondent.

With respect to her position, the second respondent disputes the applicant held the role of human resources manager at BXC and says no such role existed.
BTC’s evidence is that the applicant was a receptionist at BXC and never undertook managerial tasks, supported by BRG’s evidence that the applicant worked at BXC as a temporary night receptionist.
BUH’s evidence is that he knew the applicant as the supervisor/general manager of BXC although he did not know her exact position. BWE’s evidence is that the applicant was appointed to manage BXC as head receptionist in January 2023.
The applicant’s submission is that she carried out a human resources role in addition to her receptionist duties by contacting people who responded to a website to discuss working at one of the brothels, and if successful she was paid a bounty.
Regardless of her title, the evidence shows the applicant held a responsible position at BXC as she submits. This is shown for example by the role she played in the incident on 14 January 2023 (including a reference to her having an office), and by her text messages with BTC that evening.
With respect to the days of the week the applicant worked, BTC’s and BRG’s evidence accords with the applicant’s statement evidence that she worked at BXC on Thursday, Friday and Saturday nights.
Their evidence is that her shifts were from 6.00pm to 6.00am and the applicant’s statement evidence is her shifts were between 7.00pm to 7.00am.
In cross examination the applicant also says she worked Thursday, Friday, Saturday and Sunday nights from 6.00pm to 6.00am.
Text messages on 30 January 2023 indicate the applicant worked at BXC for 34 hours on Wednesday, Friday and Saturday in the previous week, and an undated text message includes “32 hours for BXCs from Thursday to Sunday morning.”[35]
[35] ARD page 245.
On balance I find the applicant worked at BXC for three 12 hour shifts each week, usually on Thursday, Friday and Saturday nights.
With respect to her hourly rate at BXC, in an undated text message apparently at or around the time she started there, BTC says that her new hourly rate at BXC had not been agreed.[36]
[36] ARD page 286.
In a text message on 4 October 2023 the applicant says she started work at BXC as night manager on $50 per hour.
The applicant says in her statement of 14 December 2023 the hourly rate was $50 per hour.
In her statement of 8 November 2024 the applicant says she was paid $50 per hour with reference to her work at the three related brothels, and that her pay went from $80 per hour to $120 per hour when she moved to BXC.
In cross examination the applicant gave evidence that she was paid $80 per hour at BXC plus bonuses.
BTC and BRG give no evidence as to the amount the applicant was paid per hour at BXC.
On balance I find the applicant was paid $50 per hour when she started at BXC on the basis of the text message of 4 October 2023 which is more contemporaneous, and noting evidence that payment at the related corporations was $30 per hour and the applicant went on to a new hourly rate when she commenced at BXC.
Having regard to the logical and probative evidence of the applicant and the second respondent, I am satisfied a contract existed whereby the applicant undertook reception work at BXC at the request of the second respondent for three 12 hour shifts per week between 12 January 2023 and 9 February 2023 and in consideration she was paid $50 per hour for that work.
Further terms and legal obligations flowing from the partly oral and partly written contract are not easily ascertainable.
Whether the applicant was working under a contract of service or as an independent contractor then requires consideration of the multifactorial factors discussed in Stevens v Brodribb.

Multifactorial test

Where it is necessary to turn to a consideration of the various indicia in the multifactorial test in Stevens v Brodribb and Vabu v Hollis, a balancing exercise is performed and all the dealings between the parties may be reviewed.[37] Although the list of indicia is not closed the balance will depend on the facts of the contract.[38]
[37] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [61].
[38] Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537.
Control in many cases remains the surest guide and should be applied in the first instance, but it is not the only relevant factor. It is the totality of the relationship between the parties which must be considered.[39]
[39] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16.
Other indicia include the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision of holidays, the deduction of income tax, the ability to delegate work by the putative employee, the employer’s right to have a particular person to do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work.[40]
[40] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at [9].
The indicia are also not of equal weight in the characterisation of the relationship, and a mechanistic checklist approach should not be taken.[41]
[41] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [34]-[35].
With that in mind, with respect to control the applicant submits it is clear BTC went to some trouble to train the applicant so she performed her duties according to his wishes.
Her evidence is that she reported directly to BTC and she had no level of control at all. Every decision including paying taxi drivers’ commissions for new clients had to be approved by BTC. It was the same for payment of their wages at the end of every shift.
In a text message on 22 January 2023 BTC asks the applicant for her hours as he was doing the pays for the week.[42]
[42] ARD page 244.
She was directed at all times by BTC through the phone system, the internal Ichat and he could log in to the camera and listen through microphones that were on all the time to see and hear exactly what the applicant was doing.
The text messages on the night of the incident support this. BTC sent 12 photos of the incident to the applicant and he “was watching and all the girls were going down the back stairs”.[43] A text message that also appears to be on that night includes the applicant saying she could start to send people home if he wished.[44]
[43] ARD page 247.
[44] ARD page p 267.
BTC’s evidence is that she chose her shifts, however this may also be consistent with the applicant being a casual employee.
The second respondent submits that as the applicant’s shifts take a variety of different days, hours, rates and appear to be the subject of numerous text messages involving ongoing negotiations, an ongoing contract is not being performed.
The evidence discloses the applicant’s shifts and rates were the subject of negotiation at the commencement of her contract to work at BXC, and while they may have varied within that period they were otherwise fixed.
The plurality in Personnel said;
“… this Court in Stevens, and indeed in Zuijs itself, emphasised that it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee.”[45]
[45] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [74].
The evidence that goes to both the right of control and the actual exercise of control weighs in favour of the applicant being a worker and not an independent contractor.
Regarding the mode of remuneration, it is uncontroversial that the applicant’s weekly cash payment was delivered to BXC on Monday mornings, ‘expensed’ on an BYC job sheet.
The evidence is that job sheets were required to be completed at the end of each shift and were approved by BTC before payment was made.
There is no evidence the applicant had an ABN and there are no documents in evidence such as job sheets or invoices that show whether tax was deducted or GST was paid. The applicant says she never supplied a quote or invoice as she was an employee.
The applicant was paid an hourly rate which may be suggestive of an employment relationship as the applicant submits. Remuneration at an hourly rate may also be consistent with an independent contractor relationship.[46] A contractor could more usually be expected to be paid a set rate for a specific outcome.
[46] Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4 at [167].
On balance the mode of remuneration tends to weigh in favour of the applicant being a worker.

Provision and maintenance of equipment

The applicant’s undisputed evidence is that tools were provided including “computers, phones, girls, condoms to sell ladies, free alcohol for clients with a booking, and rooms to rent,”[47] she had a work phone and she never supplied any equipment.
[47] ARD page 2.
An undated text message from the applicant which appears to be shortly before 23 January 2023 refers to the applicant sitting down to a computer that she got from BTC to put together a sales training handbook.[48]
[48] ARD page 227.
This evidence weighs in favour of the applicant being a worker.

The obligation to work

BTC’s evidence is that the applicant decided her own hours and shifts. This is consistent with the applicant being either a casual employee or an independent contractor.
The applicant’s evidence is that she worked set days and hours and she turned up and completed the same duties every week at the same time for the same pay.
I have found above that the applicant worked at BXC for three 12 hour shifts each week, usually on Thursday, Friday and Saturday nights, and she was paid $50 per hour.
This favours the applicant being a worker.

The timetable of work and provision of holidays

There is no evidence the applicant took holidays or received paid holiday leave.
BTC’s evidence is that she never received sick leave or annual leave. The applicant in cross examination refers to taking a sick day following the incident on 14 January 2023.
The available evidence is consistent with the applicant being a casual employee or an independent contractor but tends to weigh in favour of her being an independent contractor.

The deduction of income tax

It is clear on the evidence that income tax has not been deducted or paid, nor have superannuation payments been made.
The applicant’s submission is that payment of group tax is not the applicant’s responsibility, being the responsibility of the employer. BTC’s evidence is that the applicant was always responsible for her own taxation.
The second respondent’s submission is that it should be inferred that anyone else who works in the second respondent’s business is doing so as a contractor because they wish to maintain confidentiality and secrecy as to the source of their earnings, and that they would undertake what an employer would otherwise undertake such as payment of tax.
Non-payment of income tax and superannuation is a factor that supports the applicant being an independent contractor.

The right to delegate work

There is no evidence the applicant had the right to delegate work to anyone else. Her evidence is that she did not sublet or employ any others as she as an employee.
This weighs in favour of the applicant being a worker rather than an independent contractor.

The right to dictate the hours of work, place of work and the like

The evidence is that the second respondent dictated the place of work.
The hours of work are discussed above. The second respondent submits that a 12 hour shift without a break is unheard of in a contract of service and only a person running their own enterprise would forego those entitlements to ensure repeat business.
I do not accept this submission. Twelve hour shifts are common in industries such as health and law enforcement. Not being allowed to take a break is the applicant’s evidence. BTC agrees there were 12 hour shifts but provides no evidence regarding the provision of breaks to contradict that evidence.
In my view this factor weighs in favour of the applicant being a worker.

The right to suspend or dismiss the person engaged

In his statement of 12 December 2024 BTC refers to the applicant’s engagement as a contractor at BXC ending immediately as there were claims made against her for misappropriation of money at BXC.
The applicant provides no evidence in this regard.
A text message from the applicant on 7 February 2023 reads in part “I have now had to let go of my Nanny that looked after my kids. Every single aspect of my life now changed in the most unfair way….”[49] This was two days before the end of her period of work with the second respondent.
[49] ARD page 283.
It appears that while the second respondent may have had the right to dismiss the applicant on the available evidence this appears to weigh as a neutral factor.

The right to the exclusive services of the person engaged

The applicant’s evidence is that she worked solely for BTC’s parlours, she was never allowed to work in any other parlour, and they were often told if they did it was a conflict of interest and they would be terminated.
BTC’s evidence is that the applicant insisted on being casual to allow her to be engaged elsewhere or to receive social security benefits.
There is no evidence the applicant carried out other work during the time she worked at BXC. Given the applicant worked approximately 36 hours per week at BXC, cared for her children and received a carers allowance in relation to her mother, this is perhaps unsurprising.
While contested by BTC the evidence suggests the second respondent had the right to the applicant’s exclusive services, and in my view weighs more towards the applicant being a worker.

Summary of indicia

The evidence regarding the indicia of employment supports the finding that the applicant worked for the second respondent under a contract of service.
The lack of provision of holidays and payment of income tax and superannuation are factors weighing in favour of the applicant being an independent contractor.
The factors of control, provision of equipment, the obligation to work, the timetable of work, the right to delegate, the right to dictate the hours and place of work, and the right to the exclusive services of the applicant weigh in favour of the applicant being a worker.
In asking whether the applicant in working for the second respondent was performing work as an entrepreneur who owns and operates a business, or that in that work she represented her own business and not the business of the second respondent, the answer is no.
I am satisfied the applicant is a worker within the meaning of s 4 of the 1998 Act.
No submissions were advanced on the question of whether the applicant was a deemed worker pursuant to cl 2 Schedule 1 of the 1998 Act at the time of injury on 14 January 2023. Given the finding that the applicant was a worker this is not addressed.

Failure to give notice of injury and make a claim within legislative timeframes

Under s 254 of the 1998 Act no compensation is recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which they were in at the time of the injury.
There is no bar to recovery if it is found there are special circumstances, including that the failure to give notice of injury was occasioned by ignorance, mistake or other reasonable cause, or if the person against whom the proceedings are taken to have had knowledge of the injury from any source at or about the time when the injury happened.
The first respondent by its dispute notice of 8 January 2024 denies the applicant’s claim in part because she gave notice of her injury and claimed compensation for the injury on
23 October 2023, more than 10 months after her claimed injury occurred.
The second respondent submits that because the applicant is not a witness of truth its witnesses should be believed regarding no notice of injury having been given of the applicant’s claim until documents were served in 2024.
BTC’s evidence is that the applicant made no mention to him, BRG, the police, paramedics or other staff members of her injury, and he had no knowledge of the injury.
The applicant’s evidence is that when she spoke with BTC on the night of 14 January 2023 she was crying. She says she was picked up off the floor by the police who had her looked over by the paramedics, BTC had seen the film of the incident, and the applicant took her second only sick day two days after the incident.
Her evidence is that she spoke to BTC many times after the incident about her psychological health and that she thought she needed to see a doctor or psychologist.
The applicant’s evidence is that she was not aware of her injury until August 2023 when
Dr Nagaraj diagnosed her with post-traumatic stress disorder. It finally got to the point that she was overwhelmed and contacted solicitors.
The applicant was not aware of the process to make a workers compensation claim.
I accept the applicant’s submission that through ignorance she failed to give notice of her injury as soon as possible after the injury happened.
Under s 261 of the 1998 Act compensation cannot be recovered unless a claim is made within six months after the injury happened. Failure to make a claim within six months is not a bar to recovery of compensation if it is found the failure was occasioned by ignorance or mistake or other reasonable cause and the claim is made within three years after the injury happened.
The applicant dd not know what was happening to her until Dr Nagaraj told her in August 2023 that she suffered with post-traumatic stress disorder. She contacted a solicitor who was a friend who would not take her claim further.
As a claim was made to the first respondent on 23 October 2023, in accordance with s 261(6) of the 1998 Act it was made within six months of the date she first became aware that she had received an injury.
I find in any event that due to the applicant’s ignorance of the process to make a claim, her failure to give notice of her claim or make a claim within the times prescribed in ss 254 and 261 of the 1998 Act is no bar to recovery of compensation.

Did the applicant suffer a psychological injury

A worker who has received an injury shall receive compensation from their employer under s 9 of the 1987 Act.
‘Injury’ means a personal injury arising out of or in the course of employment in accordance with s 4(a) of the 1987 Act.
A psychological injury is an injury as defined in s 4 that is a psychological or psychiatric disorder under s 11A(3) of the 1987 Act.
The applicant will have suffered a psychological injury under s 4 of the 1987 Act if she has suffered a psychological or psychiatric disorder in the course of or arising out of employment and the employment has been a substantial contributing factor in accordance with s 9A of the 1987 Act.[50]
[50] Tame v New South Wales (2002) 211CLR 317, Commonwealth v Smith [2005] NSWCA 478.
The applicant bears the onus of proving on the balance of probabilities that she suffered a psychological injury in the course of her employment with the second respondent.
In Badawi[51] the Court referred to the following passage in Nunan v Cockatoo Island Docks & Engineering Co Ltd;[52] if the fact of the applicant being employed in the particular job caused or to some material extent contributed to the injury, and the injury was sustained while she was doing the job she was employed to do or something incidental to it, the applicant is prima facie entitled to compensation.
[51] Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd [2009] NSWCA 324.
[52] Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119 at 124.
Dr Saboor’s opinion is the applicant suffers with major depressive illness and post-traumatic stress disorder caused by the incident that occurred at work on 14 January 2023. The applicant’s employment was the substantial contributing factor for the development of the psychological injury.

The first respondent in its internal review notice of 18 September 2024 considers Dr Saboor’s report of 21 August 2024, referring to inconsistencies in the recorded histories regarding the incident on 14 January 2023.
The second respondent submits that that no weight should be given to Dr Saboor’s opinion and it should be disregarded in its entirety. These submissions are addressed below.
There was not a fair climate for Dr Saboor’s opinion and there was no satisfactory basis upon which the doctor relied in providing his opinion as a result of;
(a)    being provided with two applicant statements that are not with the ARD;
(b)    the police report and clinical notes of Dr Nagaraj do not refer to the referral to the psychologist consulted by the applicant;
(c)    Dr Saboor accepted the man came in carrying a metal dog chain or lead and was threatening everyone, inconsistent with what police were told, as well as that the man came in on the second occasion holding a girl by the hair;
(d)    Dr Saboor did not explore the applicant’s referral to a physiotherapist for alleged right gluteal and lower back pain as well as hip pain resulting from the ‘assault’;
(e)    despite being in possession of Dr Nagaraj’s notes Dr Saboor did not attempt to reconcile the inconsistent history of being ‘beaten with a dog lead’, or that the applicant was ‘tied up and beaten by a stranger’, two critical entries for which there is no evidence;
(f)    just prior to consulting with the applicant she had been involved in a car accident which she mentioned to her psychologist but which is not mentioned by
Dr Saboor, and
(g)    there is no mention of the applicant having had shingles, hip pain, lower back pain, blood pressure and that significant amounts taken by her of Endone and Gabapentin.
The submission is made that while it is accepted precision in terms of facts forming the basis of an opinion are not required, having regard to the extraordinary variety of different complaints before Dr Saboor and productive of emotional distress together with other traumas and significant medical conditions, there was not a fair climate for his opinion and it was based on facts that were false.
Dr Saboor arrives at his opinion in the second respondent’s submission despite the applicant making no complaint of distress to the police, she was able to work on a continuous basis until October and there was no history given to him of the circumstances surrounding the applicant ceasing work in October 2023.
The dates of two applicant’s statements shown in Dr Saboor’s report do not correspond with the dates of the applicant’s statements with the ARD and while it may be that there are typographical errors (7 May 2024 in place of 27 May 2024 for example) this can only be speculative in the absence of any further evidence. Dr Saboor makes no specific reference to these statements. The history he takes of the injury and the presenting illness appear to be summaries of what the applicant reported to him directly.
Dr Saboor refers to the psychologist the applicant has been working with and that she has been having EMDR treatment.
The metal dog lead or chain is included in the history Dr Saboor took of the injury. This was not recorded by the police on 14 February 2023 however it was noted in the applicant’s more detailed statement of 14 December 2023, again in her statement of 8 November 2024 and a dog collar is referred to in the claim form of 18 December 2024. When cross examined the applicant confirmed the intruder tried to hit her with a dog lead, a metal chain.
The man holding a girl by the hair causing the applicant to open the door is noted by
Dr Saboor. This is a more specific description than in her statement evidence that includes the applicant being concerned about this worker being outside with the erratic male.
Ms Lazaroski records on 12 July 2024 the worst part was when the perpetrator “came back to the door with the girl”.[53] This does not in my view result in an unfair climate in which
[53] ARD page 173.
Dr Saboor reaches his opinion regarding the applicant’s injury.
Dr Saboor does not explore the applicant’s referral to a physiotherapist. The doctor was provided with Dr Nagaraj’s clinical records. This appears not to be significant as to warrant exploration by Dr Saboor in assessing the applicant’s psychological condition.
An inconsistent history recorded by Dr Nagaraj of the applicant being ‘beaten with a dog lead’ and ‘tied up and beaten by a stranger’ are not recorded or relied on by Dr Saboor in forming his opinion.
Dr Saboor does not refer to the recent car accident in his report of 21 August 2024.
Ms Lazaroski records on 8 August 2024 the applicant discussed a recent car accident that had significantly impacted her and which resulted in her avoiding leaving the house over the weekend. The applicant wanted to focus on this connection to her previous trauma.
Ms Lazaroski records the applicant was emotional at times but responsive to treatment.
The applicant in cross examination described reversing into a lady’s number plate, it was not an accident, and she was yelled and screamed at which troubled her. The absence of a reference to this incident in Dr Saboor’s report does not in my view result in an unfair climate.
Dr Saboor was provided with the clinical records of Dr Nagaraj including reference to the applicant having shingles, hip pain, lower back pain, blood pressure and taking significant amounts of Endone and Gabapentin. The absence of reference to these may be understood as the result of the doctor not viewing these as significant in his assessment of the applicant’s psychological injury.
The applicant not reporting her distress to the police on 14 January 2023 is at odds with the applicant’s evidence including that they asked the paramedics to look her over. She consulted Dr Nagaraj in August 2023 when it became overwhelming. The applicant’s ability to continue working after the incident is not inconsistent with post-traumatic stress disorder.
There is no readily apparent relevance of the circumstances of the applicant leaving the employ of a corporation related to the second respondent in October 2023 to Dr Saboor’s assessment of her psychological condition as a result of the incident on 14 January 2023.
On consideration of the above I have formed the view that Dr Saboor’s opinion was formed in a fair climate[54] and there is a satisfactory basis upon which he relied in providing his opinion.
[54] , Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844.
There is other evidence that establishes that any matters that may be assumed by Dr Saboor are ‘sufficiently like’ the matters established so that his expert opinion is of value, even though they may not correspond completely or ‘with complete precision’.[55]
[55] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
In accordance with r 73 of the Rules I have concluded that Dr Saboor’s opinion is logical and probative, clearly relevant to the facts in issue and the issues in dispute, and his opinion is not based on speculation or unsubstantiated assumptions.
Dr Saboor’s reasoning has a clear path. The doctor takes a history of the injury and the presenting illness, notes the applicant’s current treatment, her denial of any past psychiatric history and examines her mental state in providing his diagnosis and opinions.
I accept Dr Saboor’s opinion.
There is a significant issue with Dr Nagaraj’s opinion.
Dr Murali Nagaraj records on 25 August 2023 that the applicant was beaten with a dog lead. On 5 October 2023 Dr Nagaraj refers the applicant to Ms Lazaroski for urgent review and advice with a history of assault “was tied up and beaten by a stranger at her workplace in January.”[56] In his answers to questions from the insurer on 18 November 2023 Dr Nagaraj states the applicant reported she was tied up and beaten.
[56] ARD page 88.
Dr Madhu Nagaraj records on 3 October 2023 “shown me the video”[57] and refers only to an incident at work and an assault. Dr Murali Nagaraj on the same day records “was tied to wall, physically assaulted-showed videos of the man being pacified by 4-5 police officers etc.”[58]
[57] ARD page 97.
[58] ARD page 97.
Lee Kelly’s report of 16 February 2024 obtained by the first respondent includes that the applicant verbally advised that she was not physically assaulted at the time of her alleged injury, but envisions that she was, which has contributed to her current condition.
When it was put to the applicant in cross examination that she was not struck or hurt in the incident she stated that it was just her recurring dreams after it. She felt like being beaten with a dog lead was going to happen. When asked if she told Dr Nagaraj she was beaten with a dog lead the applicant said maybe the wording is just wrong. She also referred to her mental state when she consulted Dr Nagaraj.
Ms Lazaroski does not refer to the applicant being tied up and beaten although that was included in Dr Nagaraj’s referral to her. Dr Saboor does not refer to the applicant being tied up and beaten. Dr Nagaraj makes the only such record.
This is inconsistent with the applicant’s evidence, Ms Lazaroski’s records and Dr Saboor’s report. Dr Nagaraj’s record that the applicant was tied up and beaten should be treated with caution for the reasons discussed by Basten JA in Mason v Demasi.[59]
[59] [2009] NSWCA 227 at 2].
I do not accept Dr Nagaraj’s Certificates of Capacity certifying the applicant as having no work capacity are of no weight due to the inclusion of this reference to her being tied up and beaten. Dr Nagaraj’s opinion in relation to work capacity is supported by the assessment provided by Dr Saboor.
The second respondent notes the reference to a witness in the claim form. I decline to draw an inference pursuant to Jones v Dunkel[60] that the unexplained failure to obtain a statement from that witness is due to that evidence not assisting the applicant. The applicant describes the use of false names in the industry and the second respondent refers to the secretive nature of the industry. Without further evidence this inference is not available in the circumstances of this case.
[60] [1959] HCA 8; (1959) 101 CLR 298.
There is no doubt the applicant’s employment was a substantial contributing factor to her injury resulting from the incident on 14 January 2023 in accordance with s 9A of the 1987 Act and I make that finding.

Capacity and entitlement to weekly benefits

As findings are made that the applicant was a worker and she has sustained a psychological injury as a result of the incident on 14 January 2023, she is entitled to the payment of weekly benefits compensation for the period from 10 October 2023 to date and continuing.
Clause 9 of Schedule 3 of the 1987 Act defines ‘no current work capacity’ as a present inability arising from an injury such that the worker is not able to return to work either in the pre-injury employment or in suitable employment.
The medical evidence before the Commission is that the applicant has no current work capacity from 10 October 2023.
On 18 November 2023 Dr Murali in his report to the first respondent states the applicant has ‘no capacity’ for any kind of work, and timeframes for suitable or pre-injury work are currently uncertain.
Certificates of Capacity issued by Dr Nagaraj certify the applicant as having no current incapacity in the period 10 October 2023 to 7 May 2024 and then from 7 February 2025 to
7 April 2025.
The second respondent submits the reference by Dr Nagaraj to the applicant being tied up and beaten is false, which has not been corrected by the applicant, and this is the narrative which forms the basis of her total incapacity.
I do not accept that submission. Dr Nagaraj refers to the assault by a stranger. He apparently viewed video of the incident. There is no doubt the incident on 14 January 2023 was terrifying. Dr Nagaraj refers to the applicant’s ongoing symptoms which became a bit worse on 13 December 2024, the applicant’s treatment with a psychologist and awaiting a psychiatrist’s review.
Ms Lazaroski does not refer to the applicant being tied up and beaten but to her being chased and attacked by a male with a dog lead. Ms Lazaroski refers to the traumatic event that occurred at the workplace and the applicant’s presentation with classic post-traumatic stress disorder symptoms which have been present for a long time and have gotten worse over time.
Dr Saboor’s opinion on 21 August 2024, also not formed on the basis of the applicant being tied up and beaten, is that she is totally incapacitated for any type of employment including her pre-injury duties or any other duties. She is currently unfit for work.
On the basis of the available evidence I find the applicant has no current work capacity from 10 October 2023 to date and continuing.
The applicant’s PIAWE are not agreed.
Under cl 2 of Schedule 3 of the 1987 Act PIAWE means the weekly average of the gross pre-injury earnings received by the applicant for work in any employment in which she was engaged at the time of the injury.
The accepted evidence is that the applicant was first engaged by the second respondent on 12 January 2023. There is no evidence the applicant was employed in any other employment at the time of the injury.
Unfortunately there is an absence of documentation regarding the hourly rate paid by the second respondent to the applicant.
The second respondent provides no evidence of the hourly rate paid to the applicant. In its Reply the second respondent includes PIAWE of $10. Given the undisputed evidence that the applicant worked for the second respondent in three 12 hour shifts per week that amount appears untenable.
The applicant provides a ‘Net Wages Schedule’ calculated on the basis of the applicant receiving payment of $120 per hour when she commenced work with the second respondent.
In its submissions the second respondent refers to the applicant’s schedule of earnings as deficient in not containing full particulars of the amounts claimed and their basis, and the PIAWE included as a fantasy not based on any evidence before the Commission. The first respondent refers to no rational decision maker looking at the evidence being able to form a reasonable view regarding PIAWE.
I do not accept the hourly rate in the applicant’s wages schedule. I find that the hourly rate paid to the applicant was $50 for three 12 hour shifts per week, or $1,800 gross per week, based on the available evidence
This accords with the applicant’s text message on 4 October 2023 to BTC that she started work at BXC on $50 per hour, and her statement evidence of 14 December 2023 and on 8 November 2024, although she says later in that statement her pay went from $80 an hour to $120 an hour when she moved to BXC. The claim form dated
18 December 2023 includes 36 plus standard hours worked per week at $50 per hour, and usual pre-tax weekly earnings of $1,800 to $2,100.
I note the applicant when cross examined said she was paid $80 per hour by the second respondent however she later agreed her usual pre-tax earnings were $1,800 to $2,100 per week.
While the applicant gives evidence that additional payments were made to her, without further evidence or evidence in support that cannot be accepted.
I find that the applicant’s PIAWE rate is $1,800.
There will be an award in favour of the applicant pursuant to ss 36 and 37 of the 1987 Act for the period 10 October 2023 to date and on a continuing basis at the PIAWE rate of $1,800.

Application for costs

Section 341 of the 1998 Act states that each party is to bear their own costs in or in relation to a claim for compensation.
The second respondent seeks an order directing the applicant’s legal practitioners to indemnify it for its legal costs due to their serious neglect, serious incompetence or serious misconduct delaying or contributing to the delay of the matter under s 344(1)(c) of the 1998 Act.
Should that order be made, the first respondent as a matter of logic seeks the same order.
I agree with the applicant’s submission that there is no requirement in the Commission to certify proceedings as having reasonable prospects of success.
I have found the applicant has established a right of action against the second respondent and a contract of service existed so that a sound basis exists in which to bring the claim.
The applicant submits that none of the discontinuances were at conciliation conference/arbitration hearings. It is unsatisfactory that five proceedings have been discontinued however I agree with this submission and the bearing this has on the costs incurred.
The four related companies have at all times been represented by the same legal practitioners which assists in confining the amount of costs incurred.
I note the absence of any documentation including on the part of the four related corporations, none of whom appear to carry workers compensation insurance policies in New South Wales, that appears to have contributed to the applicant’s difficulties in identifying the correct respondent.
The evidence in these proceedings has been found to be sufficient so that the applicant succeeds. There is no evidence of serious neglect, incompetence or misconduct in these proceedings as required by s 344(1) of the 1998 Act.
I have discussed the submissions made by the second respondent in its application for summary dismissal above and I do not repeat that discussion here.
I decline to make an order pursuant to s 344(1)(c) of the 1998 Act.

SUMMARY

At the time of her injury on 14 January 2023 the applicant was a worker within the meaning of s 4 of the 1998 Act in the employ of the second respondent.
Any failure by the applicant to give notice of her claim or to make a claim within the times prescribed in ss 254 and 261 of the 1998 Act is not a bar to recovery of compensation.
The applicant sustained a psychological injury as a result of the incident on 14 January 2023 pursuant to ss 4 and 9A of the 1987 Act.
A finding is made that the second respondent did not hold a valid New South Wales workers compensation policy at the time of the injury.
The applicant’s PIAWE rate is calculated at $1,800.
The first respondent is to pay the applicant weekly benefits compensation as follows;
(a) 10 October 2023 to 9 January 2024 at 95% of $1,800 or $1,710 pursuant to s 36(1) of the 1987 Act as indexed, and
(b) 10 January 2024 to date and continuing at 80% of $1,800 or $1,440 pursuant to s 37(1) pf the 1987 Act as indexed.
Given the sensitive nature of the information, consideration of the request made by the second respondent and weighing the matters referred to in r 132(4) of the Rules, the publishable decision is to be de-identified in accordance with r 132 of the Rules, including de-identification of all parties, entities or individuals named in the proceedings.

[2025] NSWPIC 299

26 June 2025