Cagney v D&J Building Contractors Pty Ltd - [2025] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

Cagney v D&J Building Contractors Pty Ltd [2025] QCA 116

PARTIES:

SCOTT ANTHONY CAGNEY
(applicant)
v
D&J BUILDING CONTRACTORS PTY LTD
(respondent)

FILE NO/S:

Appeal No 14321 of 2024
DC No 38 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Ipswich – [2024] QDC 162 and [2024] QDC 171 (Horneman-Wren SC DCJ)

DELIVERED ON:

27 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2025

JUDGES:

Mullins P and Flanagan and Boddice JJA

ORDERS:

1.   Leave to appeal granted.

2.   Appeal dismissed.

3.   The appellant must pay the respondent’s costs of the appeal.

CATCHWORDS:

EMPLOYMENT LAW – EMPLOYMENT RELATIONSHIP – ASCERTAINING EXISTENCE AND NATURE OF RELATIONSHIP – GENERALLY – where the applicant was a trade qualified carpenter of 40 years’ experience – where the applicant was self-employed and contracted his services to others throughout almost all of those 40 years – where the respondent company and the applicant were both subcontractors on the first building site – where the natural person who was working on behalf of the respondent at the first building site offered the applicant work on a second building site where the respondent was contracted by the owner to carry out building work – where the extent of the contractual negotiations between the parties was an exchange of a short series of text messages – where the applicant sought cash payment for his work for the respondent at the second building site – where neither party proposed any change in the usual mode the applicant undertook his carpentry work as an independent contractor – whether the applicant was an employee of the respondent

ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – GENERAL PRINCIPLES – where the applicant was a carpenter of about 40 years’ experience – where the applicant fell from a ladder and was injured while working on a job site for the day for a cash payment from the respondent company which was contracted by the owner to carry out building work – where the applicant made an application to WorkCover Queensland for workers compensation in relation to the injuries sustained in the accident – where WorkCover allowed the application for workers compensation and accepted the applicant was a worker for the purposes of that application – where the respondent applied for a review of WorkCover’s decision and the Workers’ Compensation Regulator confirmed the decision of WorkCover – where the respondent did not appeal the Regulator’s decision – where the applicant argued the confirmation of WorkCover’s decision by the Regulator gave rise to an estoppel on the issue of whether the applicant was an employee at common law – whether the approach in Kuligowski v Metrobus (2004) 220 CLR 363 applied – whether Workcover was estopped from denying the applicant was a worker under s 11(1) Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 11, s 237, s 541, s 546

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QCA 116
Decision Date: 27 June 2025

CaseChat Overview and Summary

In the case of Cagney v D&J Building Contractors Pty Ltd, the applicant, a seasoned carpenter with nearly 40 years of experience, brought an action against the respondent, a building contracting company, in the Queensland Supreme Court. The central dispute revolved around the determination of the employment relationship status between the parties. Specifically, the applicant sought to establish whether he was an employee of the respondent when he was injured on a job site, which would entitle him to workers' compensation. The legal issues that arose from this case were the ascertainment of the existence and nature of the employment relationship and whether the applicant was an employee of the respondent company at common law.

The court meticulously examined the facts and communications between the parties, particularly noting that the applicant was a seasoned independent contractor who had been self-employed for nearly his entire career. The court considered the limited interactions between the parties, which consisted of brief conversations and text messages, without any formal agreement or discussion regarding the terms of the engagement, remuneration, or other employment-related matters. The court determined that the limited communication did not evidence a traditional employer-employee relationship and that the applicant's usual mode of operating as an independent contractor remained unchanged. The court concluded that the applicant was not an employee of the respondent, thus rejecting the applicant's claim for workers' compensation.

The Queensland Supreme Court granted the leave to appeal but dismissed the appeal, affirming the lower court's decision. The court ordered the appellant to pay the respondent's costs of the appeal, reinforcing the conclusion that the employment relationship as argued by the applicant did not exist under the circumstances presented. The court's reasoning highlighted the importance of clear and comprehensive agreements in defining employment relationships, especially in the context of independent contractors.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal dismissed.

3. The appellant must pay the respondent’s costs of the appeal.

Background

Background to the litigation

It was therefore common ground at the trial that the determination of whether the applicant was a worker under s 11(1) of the WCRA would be answered by asking whether he was an employee at common law.Facts relevant to the applicant’s engagement The following facts relating to the applicant’s engagement by the respondent are taken from the reasons (at [1] and [83]) and together with evidence set out at [84]-[86] of the reasons were not challenged in this application. The applicant is a trade qualified carpenter of almost 40 years’ experience. Throughout almost all that period he was self-employed and contracted his services to others. Generally, the applicant provided his services to those contracting him at an hourly rate and he charged GST. PAYG taxation instalments were not withheld by those who engaged his services. Immediately preceding the accident, the applicant was contracting his services to a company performing work on a building site at Greenslopes and the respondent was subcontracting to the same company on the same site. The trial judge set out (at [84] of the reasons) the applicant’s evidence of a conversation between himself and Mr Ellison on behalf of the respondent at that building site where both the applicant and the respondent were subcontractors on the Thursday before Good Friday:“So he told you then the job site? --- He told me he had a job site and he talked to the little apprentice that was there, and he turned to the apprentice and said, ‘Yeah, I’ve got a couple of them going at the same time’.And did he on that occasion say anything to you about working there? --- He said – not in the distant future, he said may be later on, I might have something for you.Okay. And what was your reply? --- I said ‘Oh, alright then’.Okay? --- I could do with a couple of cashies.Okay? --- and that was it, I was home for the weekend then.Did he make any response when you referred to cashies? --- No.Okay. Is – talking about cashies, is that accepted terminology in the industry? --- Sometimes.Okay. And what does it mean? --- That means you get paid cash instead of hourly rate or wages.” The next communication between them was on Good Friday and comprised an exchange of text messages that the trial judge set out (at [85] of the reasons). Mr Ellison asked the applicant whether he would “like to give me a hand tomorrow on this frame at Eastern Heights”. The applicant responded that he could “but most of my tools are at work if that’s ok”. Mr Ellison said the applicant would need a nail bag, if he had a spare one, and the applicant responded that he thought he could come up with a spare. Mr Ellison gave the applicant the address of the site at Eastern Heights and stipulated the time for the applicant to arrive as 7.00 am. The conversation finished with the applicant saying that he would be there. The following was noted by the trial judge (at [86] of the reasons). There was no discussion between the applicant and Mr Ellison of any rate of remuneration or by whom the remuneration would be paid. There was no discussion about completing a tax file declaration. When it was put to the applicant there was no discussion about supplying his superannuation details, the applicant said “You don’t usually worry about it if it’s one day”. When it was put to the applicant there was no discussion about the duration of the work, he said “as far as I knew, it was one day, and that was it”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cagney v D&J Building Contractors Pty Ltd [2025] QCA 116
PARTIES:	SCOTT ANTHONY CAGNEY (applicant) v D&J BUILDING CONTRACTORS PTY LTD (respondent)
FILE NO/S:	Appeal No 14321 of 2024 DC No 38 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Ipswich – [2024] QDC 162 and [2024] QDC 171 (Horneman-Wren SC DCJ)
DELIVERED ON:	27 June 2025
DELIVERED AT:	Brisbane
HEARING DATE:	24 April 2025
JUDGES:	Mullins P and Flanagan and Boddice JJA
ORDERS:	1. Leave to appeal granted. 2. Appeal dismissed. 3. The appellant must pay the respondent’s costs of the appeal.
CATCHWORDS:	EMPLOYMENT LAW – EMPLOYMENT RELATIONSHIP – ASCERTAINING EXISTENCE AND NATURE OF RELATIONSHIP – GENERALLY – where the applicant was a trade qualified carpenter of 40 years’ experience – where the applicant was self-employed and contracted his services to others throughout almost all of those 40 years – where the respondent company and the applicant were both subcontractors on the first building site – where the natural person who was working on behalf of the respondent at the first building site offered the applicant work on a second building site where the respondent was contracted by the owner to carry out building work – where the extent of the contractual negotiations between the parties was an exchange of a short series of text messages – where the applicant sought cash payment for his work for the respondent at the second building site – where neither party proposed any change in the usual mode the applicant undertook his carpentry work as an independent contractor – whether the applicant was an employee of the respondent ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – GENERAL PRINCIPLES – where the applicant was a carpenter of about 40 years’ experience – where the applicant fell from a ladder and was injured while working on a job site for the day for a cash payment from the respondent company which was contracted by the owner to carry out building work – where the applicant made an application to WorkCover Queensland for workers compensation in relation to the injuries sustained in the accident – where WorkCover allowed the application for workers compensation and accepted the applicant was a worker for the purposes of that application – where the respondent applied for a review of WorkCover’s decision and the Workers’ Compensation Regulator confirmed the decision of WorkCover – where the respondent did not appeal the Regulator’s decision – where the applicant argued the confirmation of WorkCover’s decision by the Regulator gave rise to an estoppel on the issue of whether the applicant was an employee at common law – whether the approach in Kuligowski v Metrobus (2004) 220 CLR 363 applied – whether Workcover was estopped from denying the applicant was a worker under s 11(1) Workers’ Compensation and Rehabilitation Act 2003 (Qld) Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 11, s 237, s 541, s 546