Cammeray Slipways Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cammeray Slipways Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 190
APPLICANT:	Cammeray Slipways Pty Ltd
first RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
second respondent:	Sam Natoli
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	28 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application pursuant to section 145(3) to dismiss notice issued by first respondent pursuant to section 145(1), on the grounds that the second respondent was not a worker or deemed worker; applicant maintained the pre-injury average weekly earnings were incorrectly calculated, as business expenses had not been deducted from earnings; respondents conceded second respondent was not a worker, but maintained he was a deemed worker; second respondent’s evidence approached with caution; documentary evidence considered; consideration of Byrne v Mulholland, Malivanek v Ring Group Pty Ltd, Pasqua v Morelli Constructions Pty Ltd, Scerri v Cahill, Humberstone v Northern Timber Mills, Turner v Stewardson, Wathen v AUT Holdings Pty Ltd, Higgins v Jackson, Cam v Cousins Interstate Transport Pty Ltd and Transport Contract Services (NSW) Ltd v Employers Mutual NSW Ltd; Held – second respondent was a deemed worker of the applicant; the first respondent correctly calculated the second respondent’s pre-injury average weekly earnings; application to dismiss notice refused; applicant to pay to the first respondent the sum of $21,350.78, in accordance with the notice dated 11 February 2022.
determinations made:	1. The applicant’s application to dismiss the notice issued by the first respondent pursuant to s 145 of the Workers Compensation Act 1987 is refused. 2. The applicant is to pay to the first respondent the sum of $21,350.78, in accordance with the notice dated 11 February 2022, issued pursuant to s 145(1) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The second respondent, Sam Natoli (Mr Natoli) claims to have been employed by the applicant, Cammeray Slipways Pty Ltd (Cammeray Slipways) as a boat detailer.
Mr Natoli sustained an injury to his right knee on 6 October 2021.
By letter dated 12 October 2021, solicitors acting for Mr Natoli wrote to the applicant, making a claim for his injury. They advised they were instructed that he had notified the applicant of the injury.
Mr Natoli’s then solicitors advised that they understood the applicant was uncertain whether the terms of its workers compensation insurance policy extended to Mr Natoli, “having regard to your accountant’s views”. The solicitors were of the view that Mr Natoli was a “worker” for the purposes of schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Mr Natoli’s solicitors reminded Cammeray Slipways of its obligation to notify its insurer within 48 hours of receiving notification of an injury by an employee. They requested that it immediately advise its insurer of the incident; and provide them with details of the insurer, including the incident notification reference number.
The second respondent completed a lodgement form dated 18 October 2021. He stated that on 6 October 2021, he injured his right knee while anti-fouling the underside of a yacht at the Cammeray slipway.
The injury was described as “right knee trauma – patella fracture with associated swelling, planned for surgery at Hornsby Hospital on Tuesday 19 October 2021”.
Mr Natoli stated that he had been employed for approximately four months with “current employer”. His average weekly wage was from $1,400 to $1,500 per week. He worked approximately 40 hours per week, from Monday to Friday.
Cammeray Slipways did not hold a workers compensation policy as at the date of Mr Natoli’s injury.
On 19 October 2021, iCare advised Mr Natoli’s solicitors by email that on 15 October 2021 the claim had been transferred to Claims Support Services, when a policy could not be located.
ICare requested that Mr Natoli complete an Uninsured (Liabilities) Claim Form (the claim form) and provide details of his income and the initial Certificate of Capacity.
Mr Natoli completed the claim form on 24 October 2021. He stated that he commenced work for the applicant on 1 April 2021. His gross weekly wage at the time of the injury was $1,200 per week, for a 40-hour week. He was carrying on a trade or business on his own account.
The second respondent described the trade or business name as follows:
“I was employed for Cammeray Slipways as a contractor under ABN 87749281789 at time of accident of 6 October 21. Only worked for Cammeray Slipways. They controlled my worked [sic] activities & work polisies [sic]”.
On 25 October 2021, Mr Natoli completed a Pre-injury Average Weekly Earnings (PIAWE) Form. He again stated that his gross weekly earnings were $1,200 per week ($30 gross per hour for a 40-hour week). He stated that he did not have more than one employer at the time of the injury.
Mr Natoli’s solicitors emailed the claim form, the PIAWE form and other documentation to iCare on 28 October 2021.
By letter dated 11 January 2022, iCare advised Mr Natoli that his claim had been accepted. It advised that his earnings for the 18 weeks of payment prior to his injury were $17,672.50. When this figure was divided by 18, his PIAWE were $981.81 per week.
On 11 February 2022, iCare issued the applicant with a notice pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) (the notice). The notice sought reimbursement of the sum of $21,350.78 paid to or in respect of the second respondent.
Pursuant to s 145(3) of the 1987 Act, the applicant lodged a Miscellaneous Application (the Application) on 10 March 2022. The applicant sought orders excusing it from paying any monies to iCare on the basis that Mr Natoli was not worker or deemed worker within the meaning of the (1998) Act; and in the alternative, the amount of compensation paid was in excess of his entitlement to benefits under the (1987) Act.
The first respondent lodged its Reply as an attachment to an Application to Admit Late Documents dated 4 April 2022.
The second respondent lodged his Reply on 12 May 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the second respondent is deemed to be a worker employed by the applicant, and
(b) if so, whether the first respondent has paid the second respondent weekly benefits at the appropriate rate.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation/arbitration hearing by the Teams platform on 25 October 2022. Mr Stanton of counsel appeared for the applicant, instructed by Ms Bond; Mr Harris appeared for the first respondent; and Mr Young of counsel appeared for the second respondent, instructed by Ms Jaglic. Mr Jacobsen and Mr Brooke-Smith, directors of the applicant, were present. Unfortunately, it was not possible for Mr Natoli to connect to the Teams platform, and he attended by telephone.
Mr Young conceded that Mr Natoli was not a worker, within the meaning of the legislation, but maintained that he was a deemed worker.
The applicant sought and was granted leave to cross-examine Mr Natoli, during which Mr Brooke-Smith absented himself. The cross-examination was difficult, as Mr Stanton sought to ask the second respondent about numerous documents, which Mr Natoli had difficulty identifying.
During the cross-examination, Mr Natoli was asked about tax returns that the applicant had previously requested of his solicitors. They had advised they were instructed that no returns were lodged for those financial years. Mr Natoli gave evidence that, in response to some communication from the Australian Tax Office (ATO), he had lodged further returns.
Mr Stanton sought an adjournment so that the tax returns could be provided before he completed his cross-examination of Mr Natoli.
Both the first and second respondents opposed the adjournment. The adjournment was granted, for reasons provided at the hearing, and which were recorded.
The matter was again listed for conciliation/arbitration hearing on 23 March 2023. Mr Stanton appeared for the applicant, instructed by Ms Bond; Mr Harris appeared for the first respondent; and Ms Grotte of counsel appeared for the second respondent, instructed by Mr Bechara. Mr Jacobsen and Mr Brooke-Smith attended; and Mr Butcher of iCare was available to provide instructions by telephone if required.
The cross-examination of Mr Natoli was completed; and counsel and Mr Harris made their submissions.
I am satisfied that 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 that 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)    the Application and attached documents;
(b)    Application to Admit Late Documents filed by the first respondent, dated 4 April 2022, and attached documents (Reply);
(c)    second respondent’s Reply;
(d)    Application to Admit Late Documents, filed by the first respondent, dated 16 May 2022, and attached documents;
(e)    Application to Admit Late Documents, filed by the applicant, dated 20 May 2022, and attached documents;
(f)    Application to Admit Late Document, filed by the second respondent, dated 9 June 2022, and attached documents;
(g)    Application to Admit Late Documents, filed by the second respondent, dated 11 August 2022, and attached documents;
(h)    Application to Admit Late Documents, filed by the applicant, dated 16 August 2022, and
(i)    Application to Admit Late Documents, filed by the applicant, dated 13 March 2023.

Oral evidence

The applicant sought and was granted leave to cross-examine the second respondent.

FINDINGS AND REASONS

Evidence of Colin Jacobsen

Mr Jacobsen is a director of the applicant.
Mr Jacobsen provided a statutory declaration, dated 26 October 2021, to iCare. He conceded that the applicant did not have a policy of insurance for workers compensation. Its estimated gross wages were $150,000 for the current financial year, and actual gross wages paid were $6,000.
The applicant had one employee, Tom Hale, at the date of Mr Natoli’s injury. Mr Natoli was “named as a sub-contractor”. He was “not employed – subcontract part time over 4 months”.
Mr Natoli had commenced work in May 2021, “part time and quoted works subcontract”. His usual hours of work were “per quoted job from 2 – 8 hrs randomly”. He sometimes worked no hours for a week or two, to 16 to 30 hours per week.
Mr Natoli was not employed under an award or enterprise agreement. He quoted works and was paid on invoice(s) from “ABN business”. The invoices were from “Exclusive Marine Detailing”.
The applicant was unable to provide its wage records for three years prior to the injury, as the business started trading in late May 2021.
Mr Jacobsen added:
“Sam Natoli has sub-contracted to two previous businesses running the slipway over near 20 yrs on and off. We asked Sam when he started to ‘subbie’ to us, if he wanted to be an employee. He preferred to remain a subbie to which [sic] with his long-standing presence at the marina as a contractor we assumed he had all the necessary cover. We use two other subcontractors that preform [sic] similar duties and are remunerated at a similar rate. Both other subcontractors that also quote works have insurances. Sam also contracted to other entities!”
Mr Jacobsen made a statement signed on 8 November 2021.
He is the owner of the applicant, in equal partnership with Mr Brooke-Smith. They set up the business in May 2021.
The business uses both employees and subcontractors to provide the services of slipping and servicing boats. It holds workers compensation insurance for its employees.
He has held a separate business, C-Linx Marine, based at the same marina. He met Sam Natoli when he started his business there 12 years ago. He knew he had worked as a subcontractor detailer for 15 to 20 years and had known him from that marina area.
Cammeray Shipwrights occupied the premises before they moved in. They moved out 2.5 years ago, and the premises were then occupied by SHS Marine (SHS). They took over the premises in May 2021.
Once they started the business, he (Mr Natoli) asked if he could work for them on a contractor basis. He had spoken to both Mr Jacobsen and “Colin” [sic: assumed to mean Mr Brooke-Smith] about this proposal.
Sam had also contracted to SHS. They took him on, and to his understanding, it was on the same basis as a subcontractor. He had his own invoice book, rates per linear metre, and would quote for the work he undertook. If a boat had algae or mould, he would quote additional. His quotes could be on scraps of paper or verbal. They had not kept the paper.
They did not provide any clothing to Sam Natoli. They purchased overalls for their employees, and he asked Sam if he would like some. He said, no, he would wear his own clothes. They did not stipulate his footwear. Big work boots cannot be worn on boats because they leave marks.
He would finish a job, write the invoice on the spot, and hand that in. Sometimes he would give them two or three invoices per week, and other weeks they had no work that he took on. They paid into his bank account on those invoices.
He wrote “Exclusive Marine Detailing” on his invoices. He also wrote an ABN (Australian Business Number) on those invoices. Since he lodged a WorkCover claim, their bookkeeper checked and found the ABN did not exist. The ABN for Sam Natoli was one digit different to the number he wrote on his invoices.
The ABN records show a business name registered to Sam Natoli as SN Marine Detailing. They do not know anything about that name but could not find any information on that or an associated ABN.
About a year ago, Sam Natoli told him his accountant had told him because he had contracted to Cammeray Shipwrights for such a long period, he was entitled to superannuation for all that period. When he finally stopped contracting, he was going to sue Cammeray Shipwrights for $40,000 to $50,000, whatever he felt he was owed.
When (Mr Natoli) first commenced with them, because of what he said about Cammeray Shipwrights, he had a conversation with him about the difference between an employee and a subcontractor.
He clarified that, as a subcontractor, he does not receive superannuation or holiday leave. He said he preferred to stay as a contractor. He earnt good money. He could earn $1,500 for two days work. Their salary [sic] employees only earn $700 to $1,000 average per week, so Sam was aware and was on much better money as a subcontractor, understanding that he was responsible for his own tax and insurers [sic].
He did not ask (Mr Natoli) to confirm if he held any insurances. He did not have any conversation with him to indicate they would pay tax or GST (goods and services tax) on his behalf. There was no specific conversation about payment of tax, as they took him on the same basis as Cammeray Shipwrights, as a subcontractor, and previously with SHS.
The engagement of Sam Natoli was verbal. He just carried on as he had been subcontracting for the previous two businesses at that location, for the past 15 to 20 years.
They had provided a list of subcontractor transactions, which showed payments to Sam Natoli and other subcontractors they used for similar work and remuneration, to show they were taking the same remuneration for the same work.
They had provided invoice samples from other contractors that confirmed they were doing the same jobs, for similar remuneration, and they had insurances.
They had provided the list of payments to Sam Natoli for the period from 17 May 2021 to 13 September 2021. There were possibly one or two payments after, as he was paid until the accident date.
He (Mr Natoli) quoted on a linear rate, unless it was a one-off job that required extra time and then he would give extra prices, for example to clean cushions. They were set prices, not on an hourly basis.
He (Mr Natoli) brought all his own tools and equipment for buffing. He had billed for materials. When he commenced, his duties were to cut, polish, and wash a boat. They found he was completing jobs quite quickly, and learnt he was using a product that was a cut/polish/wax all in one. They required him to cut and polish, then wax separately. He did a few jobs where they called him back to do the jobs and finish them to the standard they required.
They called him when they had work available. He could decline the work if he wanted to and was not always available. He did not work the same hours every week, and some weeks he did not work at all for them.
He had put his rate up, higher than he had quoted as subcontractor for the previous business, so they told him he had to reduce it. They stopped offering work for a few weeks because of that. He could engage employees if he wanted.
The only control they had over where he worked was that the boats were usually located at their premises. Sometimes they were at private residences, and he would clean them there.
He was not subject to disciplinary action or a code of conduct. He was required to complete work to the standard they required. If they did not think the job was as expected, they would ask him to complete it correctly, at no extra charge.
He was not required to wear a uniform displaying their business logo. He did not have a set work area but could bring his equipment to a shared workshop space. It was also accessed by other subcontractors.
Not long after they had not given him any work for a few weeks, after he had been asked to reduce his rate, an employee left the business. Sam Natoli contacted him and asked if he could do extra contract work at the slipway. He agreed to this, as they needed extra help until they found an employee.
He quoted a rate of $30 per hour gross to do slipway work, which is painting and scraping. The slipway work cannot be judged to the time as it depends on the growth on the boat, the shape of the hull, and other factors, so an hourly rate is more appropriate. He continued to do the detailing at the quoted linear rate, so they received invoices that displayed the two separate rates, even for the same dates.
He called (Mr Natoli) several times in the days following the injury to check on how he was. On the last call, he explained that as a subcontractor, he was not covered by their insurances, and they could not retrospectively put him on the books to cover him but would help him however they could.
The next day, they received a letter from his solicitor stating that Sam was an employee and asking for their policy number to make a claim.
Sam had always been a subcontractor and was engaged on that basis. There was no conversation with him where he could have been given to understand he was an employee.
Mr Jacobsen made a further statement dated 8 March 2022. Much of the statement repeats his previous evidence.
Natoli did not have a contract of employment. He did not work consistent hours. He would do work as per quoted job. He was free to choose the hours and times he worked. He would sometimes not come in when they expected him. Sometimes he would undertake work for a week or two, but otherwise, if a contract required it, he may work something like 16 hours.
Natoli was never provided with payslips. After he performed the work, he would provide an invoice with an ABN, and they would pay his business.
Copies of the invoices were attached to the statement. It also attached, among other documents, a calendar identifying the days the second respondent worked. He generally invoiced on the day he finished the work.

They did not pay superannuation for Sam Natoli. He did not accrue annual leave and was not entitled to any sick leave.
It was his understanding that Sam Natoli also undertook work for other businesses and did not solely contract to Cammeray Marina.
He disputed that Sam Natoli worked approximately 40 hours, Monday to Friday. He also disputed that he received an average weekly wage of $1,400 to $1,500.
After this incident, the company determined to employ workers rather than engage contractors, and Arthur Orenshaw was employed. The only employee at the time of the accident was Tom Hale.
As well as the issue of employment, the weekly rate paid by iCare did not take into account the contractor rate, or that the average hours a week Sam Natoli contracted to Cammeray was 8.9 hours per week.

Evidence of Hamish Brooke-Smith

Mr Brooke-Smith is a director of the applicant. His first statement is dated 4 November 2021.
He was working at the Marina in his own business and met Sam Natoli at the Marina centre. He said he was a contractor to various marine operators in the area and had been a contractor to Cammeray Shipwrights and SHS.
Once they started the business, he asked if he could work for them on a contractor basis. To his knowledge, (Mr Natoli’s) normal occupation is boat detailer.
His work for their business was polishing, detailing, and washing boats. He was contracted on a “foot rate”. It was a verbal agreement. He initially quoted $20 per foot, and that was agreed to. He then provided invoices that listed charges for materials.
He advised (Mr Natoli) that he had quoted customers based on his foot rate, not including materials. He thought his foot rate included the cost of materials. He did another job where he did not complete sections of the job that he said he would, and they called him back to complete it.
After that, they felt he was overcharging, and they needed to clarify his rates. His foot rate for SHS had been much lower, and he was also charging for materials. He suggested they buy the materials, and Mr Natoli charged an acceptable foot rate. That way, they could monitor how much he was using. He cannot recall when this conversation took place.
(Mr Natoli) was definitely engaged as a contractor. He had no conversation with him about paying his tax. He said after he paid tax, he did not make much money. At one point, he said he got a tax bill of something like $30,000.
The business relationship was not performed on a continuing basis. If they had any work, they would call him on Sunday and let him know what was available for that week. He did not work regular hours. He could accept or decline the work. If he declined, they just called another contractor. He was always able to refuse work.
They found out that after they quoted for a job, Sam would charge more than they expected, so they would arrange for him to inspect a boat and give a quote. He was initially paid on the basis of tasks completed.
A salaried employee, Jonathan, left, and Sam offered to help out on the slipway. He offered to complete the work at the same hourly rate as Jonathan, until they obtained a replacement, in addition to the detailing work he was contracted for. The slipping work is harder than detailing, but he wanted more work.
In the discussions about the hourly rate, Sam said he had to pay his own tax, that was why he wanted a higher rate. They never had a conversation about the business paying tax. They understood that as a contractor he paid his own tax, and the rates were always negotiated on that basis. He did not supply a Tax File Number. He was not paid in line with any award. He was paid the rates he quoted as a subcontractor.
(Mr Natoli) provided invoices every few days as he finished each job. He asked him to provide them only once a week, and he was then paid weekly into his bank account.
If he could not do the work he quoted on, he could engage his own employees to help. Their other subcontractors had the same arrangement.
The only control they had over where he worked was that he worked at their premises to complete the jobs. He could work at any other business when he wanted.
He was not subject to disciplinary action or a code of conduct. He was required to guarantee that he would complete the work to the standard they required. If he made any errors or caused any damage, he was required to rectify them.
He was not required to wear a uniform displaying their business logo. He did not have a designated workspace. He used their common workshop that was used by all other subcontractors.
Sam told him he had completed jobs at a marina in Roseville. He does not know if that was before or after he was working at their business. He thinks he gave him a business card, but he did not keep it.
He does not know if Sam Natoli was registered for GST. He did not have any conversation with him about GST. He did say he had a lot of money to pay in tax.
He would regularly joke that he needed a new invoice book because he’d done so many jobs, for them and other people.
He supplied his own tools and equipment, including a buffing machine and cleaning products. He was initially providing all his own materials, but because he was charging too much for polish products, they agreed to provide the products he needed to complete the jobs he quoted. He only did polishing work, so he provided and used his own machine.
He did not have any conversation with (Mr Natoli) about having insurance as part of his working with them. He would say, in conversation, that he paid his own tax and insurance as a subcontractor.
He strongly believes Tom [sic] Natoli was well aware he was a subcontractor. He used to talk about how much he liked being a subcontractor, because he could come and go as he pleased. He would say, “I’m a subbie, I can do what I want.” He would choose his hours of work, say he’d done his work for the day, he was a contractor, and could go.
Mr Brooke-Smith made a further statement dated 8 May 2022. Much of the statement repeats his previous evidence.
Natoli was never provided with payslips. He said words to the effect of, “I pay my own insurance as a subcontractor.” The applicant did not pay any superannuation for him, he did not accrue annual leave, and was not entitled to sick leave. No tax was deducted from his wages.
He did not work set hours. He worked as per quoted job. The quotes were in writing, although he did not keep a copy. Prior to providing a quote, he inspected the boat and determined how much work needed to be done. The quote would be higher if a heavy duty clean was involved. His hourly rate was $30 per hour, and foot rate was $20 per foot. He completed detailing on a “foot rate”.
He was free to choose the hours and time he worked. Sometimes he would do no work for a week or two, but if a contract required it, he may work something like 16 hours.
Natoli brought his own materials to the job and used those materials. He supplied his own tools and equipment, including a buffing machine and cleaning products. They felt he was overcharging, so they bought some materials they kept at the premises. He was concerned that Natoli was using materials to perform work elsewhere and charging them for the materials.
If there was any work for Natoli during the week, they would call him on Sunday and let him know. He did not work regular hours. There were weeks that he did not work. He could work for any other business he wanted. He understood Sam would work for other businesses, such as the marina at Roseville. On day, he said words to the effect, “I have been polishing a Precision boat at the Roseville Marina.”
He disputed that Sam Natoli worked approximately 40 hours Monday to Friday and received an average weekly wage of $1,400 to $1,500. He was paid $30 per hour. He disputed that Natoli was a worker or deemed worker at the time of his accident.

Evidence of Thomas Hale

Mr Hale was employed by the applicant as a slipway hand. His first statement is dated 9 November 2021.
He had conversations with Sam Natoli about his work, and the invoices he issued. He said he just made up an invoice and sent it. He had asked him if he was a “subbie” for the slipway too. He did work as a detailer and also painted boats as a slipway hand.
To his knowledge (Mr Natoli) had a detailing business that he issued detailing (assumed to mean detailing invoices). To the best of his knowledge, Mr Natoli issued invoices for the painting work as well. He was enquiring because he was thinking of getting an ABN, and wondered if it was worth it if he had to get an accountant.
He (Mr Natoli) was working Monday to Friday when he worked with him in the last one to two months at the Cammeray Slipways. The slipway hand had left, and Sam was working more hours to fill in that gap.
He (Mr Natoli) and Hamish had a disagreement one day about invoices not being paid. Apparently, Sam received some payment, and Hamish told him it was due to the banking delay.
Mr Hale has made a further statement dated 5 April 2022.
At the time he made his first statement, he was employed by the applicant. His employment would shortly cease.
He had reviewed his first statement. In that statement, “It is indicated that Sam Natoli worked Monday to Friday, 8.00am to 4.00pm”. He felt this line had taken what he said out of context. He was working as an employee, working almost 40 hours a week.
Sam Natoli never worked five days a week. He ordinarily worked from 8.00am to 4.00pm. He had looked at the records, and between 22 August 2021 and 13 September 2021, he only worked five times. That was consistent with his recollection. (Mr Natoli) definitely did not work with him every day.

Evidence of Kelvin Rabbitts

Mr Rabbitts works for Cammeray Marina Pty Ltd, which manages and owns the Marina. His statement is dated 16 May 2022.
He had known Sam Natoli for at least 20 years, probably more like 30. Mr Natoli had done contracting work around the Cammeray Marina area since he had known him.
Around 15 years ago, for maybe three years, Sam performed some contracting work for Cammeray Marina. When he submitted invoices, he often dropped a number off his ABN or provided an incorrect ABN. The lady who worked in the office noticed this.
After Sam Natoli ceased contracting for Cammeray Marina, he contracted to SHS and did work for other marinas.
After Sam’s injury, he was approached by an investigator from Procare. He did not provide a formal statement. He indicated he was aware Sam was performing work at other marinas.
As well as undertaking contracting work for Hamish and Colin, Sam would also perform work at marinas including Woolwich Dock, Roseville Marina, and the Sports Marina at Brookvale. His understanding was that he was often paid cash in hand.
As far as he was aware, Sam ceased performing that additional contracting work, as well as any contracting work for Cammeray Slipways, after his injury.

Evidence of Sam Bushell

Mr Bushell operates under the name SB Marine Maintenance. His statement is dated 18 May 2022.
He contracted to Cammeray Slipways, undertaking work at the same time as Sam Natoli.
Sam did not work at the Marina from 8.00am to 4.00pm. five days a week. The hours that he undertook contracting work at the Marina were far more sporadic. He chose the hours he would work and would also refuse jobs.
On many occasions, he was approached to undertake work Sam declined. He attached invoices, dated 19 July 2021 and 26 July 2021, for two jobs. Sam declined to do one job, as the gel coat was in poor condition, and he thought it would be too much work.
He had known of Sam Natoli being in the industry for a long time, and always working as a contractor. He supplied and used his own tools for the work required in polishing, from a Rupes polishing machine to a toothbrush for stainless rust.

Evidence of Brett Archer

Mr Archer is the live-in caretaker at Cammeray Marina. His statement is dated 19 May 2022.
He had been the caretaker for the past seven years. He had seen Sam Natoli perform contracting work for a number of companies operating out of the Marina, including Oceancraft Detailing and SHS.
On many occasions, Sam said words to the effect of, “I’m a subcontractor and do what I like”.
Sam did not work at the Marina from 8.00am to 4.00pm five days a week. The hours he undertook contracting work at the Marina were far more sporadic. He worked odd hours and odd days.
Sam chose the hours he would work and also refused jobs. He had witnessed conversations where Sam would pick and choose his jobs. He had observed him providing quotes to work on specific boats.
He had known of Sam Natoli being in the industry for a long time, and always working as a contractor. He supplied and used his own tools. He contracted to other companies whilst contracting to Cammeray Slipways.

Evidence of Toby Cope

Mr Cope is a sole trader, who contracts to Cammeray Slipways. His statement is dated 19 May 2022.
He was undertaking work for Cammeray Slipways at the same time as Sam Natoli. He did not work at the Marina from 8.00am to 4.00pm five days a week. The hours were far more sporadic.
Sam chose the hours he would work and would refuse jobs. He regularly said words to the effect, “I’ll come back and finish this job later.” He then returned at a time that suited him. He also supplied his own tools.
He used to work at Cammeray Marina for a mechanic until around eight years ago. Over that time, Sam Natoli was always a contractor working for Cammeray Marina. He undertook his apprenticeship at Roseville around 10 years ago, and Sam Natoli was undertaking contracting work there at that time.

Evidence of Arthur Orenshaw

Mr Orenshaw is employed by Cammeray Slipways. His statement is dated 19 May 2022.
He previously undertook contracting work alongside Sam Natoli at SHS. While contracting at SHS, Sam Natoli used his own buffing machine.
Sam used the same buffing machine whilst undertaking contracting work at Cammeray Slipways. His tools were not provided by Cammeray Slipways.

Evidence of second respondent, Sam Natoli

Mr Natoli responded to “Questions for the Claimant”, which appears to have been submitted to him by Procare, on 5 November 2021.
He did not advertise his services. He was not required to carry a relevant trade licence to carry out the work.
The applicant was the alleged employer. Mr Brooke-Smith hired Mr Natoli. He was asked by Hamish to work for the applicant, doing boat detailing at the Marina. He said they had a lot of work, meaning he would be able to earn a reasonable income. He was offered work Monday to Friday, with usual hours starting at 8.00am and finishing at 4.00pm. This was a verbal agreement. At the time of his accident, he worked in that capacity.
He started in May 2021. His employer would allocate a boat that needed antifouling/detailing work with specific timeframes to complete the work, and he attended to those duties. He performed the work at his place of employment, 46 Cowdroy Avenue, Cammeray. He only worked at one worksite.
He was not required to wear a uniform displaying the employer’s logo or display its logo on his vehicle.
He did not subcontract any of his work. He worked only for Cammeray Slipways, and they paid just him for his work only. He did not work for any other people during his time with Cammeray Slipways. They never really discussed this. He was always treated as an employee.
He was not sure about any awards or industrial instruments. He was paid an hourly rate via bank transfer. He was paid on an hourly basis, except when he had to polish boats, which was paid separately. His employment relationship was on a continuing basis. Had he not injured himself, he would still be working there.
The employer controlled his work activities, location, and hours of work, and he had to abide by their policies. They allocated the relevant boats or yachts to him. He was given instructions in terms of the work to be done and specified time or expectation as to when the work was to be finalised.
The employer told him, and whoever was working with him, what “jobs” were allocated, when they should be completed by, and he would get onto his allocated tasks. By “jobs”, he spoke of a boat or yacht.
He was responsible to Cammeray Slipways for the quality of his work. He presumed the boat/yacht owners paid for the work, and if they were not happy, they would tell Cammeray Slipways and they would address it if necessary. He did not arrange the services with the clients direct, nor was he responsible to them. Generally speaking, he did not get any negative feedback on the quality of his work.
Cammeray Slipways maintained oversight of his activity at all times. It did not have to fix or rectify any work mistakes if he did not. He was not subject to disciplinary action or a code of conduct, that he knew of.
Cammeray Slipways provided all the materials to detail the boats. They provided chemicals, washing and polishing rags, brushes, brooms, detergent, etc. He was not responsible for any tools or equipment that he needed. Everything was provided for by the employer.
He did not provide a warranty/guarantee with his work.
He did not have his own insurance, as he believed he was an employee, and covered by his employer’s insurance.
There was no written or verbal contract that specified any penalty clauses. He was not aware of any penalty clauses. Sometimes it took longer to finish detailing a boat than his employer estimated. He was still paid for his normal hours, even if he did not finish his assigned tasks in time.
He did not control where he worked. He could not go and work at any other places at any time he chose. His workdays were Monday to Friday, 8.00am to 4.00pm. He worked solely for Cammeray Slipways.
He did not subcontract any of the work. There was never any discussion of subcontracting, as he believed he was an employee.
He was not able to refuse work. He did what he was instructed to do by his employer.
Prior to starting work for Cammeray Slipways, he worked for SHS for a couple of years while it was operating the slipways in the Cammeray Marina.
He invoiced the employer for the work. It would pay directly into his bank account. He was doing the work as part of his normal business/trade/occupation. He was not registered for GST.
His ABN was 87 749 281 789, which had the trading name “SN Marine Detailing”.
The old trading name attached to his ABN was “Exclusive Marine Detailing”. He was unaware it had expired on or about 27 June 2019, and reverted to SN Marine Detailing (active from 8 September 2000), until his lawyer told him last week, as she had looked at his historical ABN details.
He had never been a good record keeper, and had others help him set up the ABN and trading name, so was not sure how it worked. His lawyer brought to his attention that he had issued invoices using the expired Exclusive Marine Detailing trade name. That was just a mistake, as he simply copied his details from the previous invoices.
At the end of the day, he would do his weekly hours, add the hours worked on the invoice and give it to his employer, who would pay his wages directly into his bank account. Other than ensuring his hours were correct, he never really paid much attention to other details on the invoices.
Mr Natoli made a statement dated 10 May 2022.
At the time of the accident, he was employed as a boat detailer by the applicant.
He had worked as a boat detailer for in excess of 15 to 20 years, most of the time at Cammeray Marina. Before starting work with the applicant, he worked for SHS for a couple of years while they operated the slipways. His usual location was at Cammeray Marina, but on occasion SHS would send him to a different location, such as Kirribilli Marina.
His employment with Cammeray Slipways was ongoing, and his usual workdays were Monday to Friday, 8.00am to 4.00pm. When it was raining, he was not called in to work, and sometimes when there was no work available, he would finish earlier as instructed by his employer.
His average weekly earnings were dependent on the work available. He was paid on an hourly basis, except when he had to polish boats, which was charged as an additional cost.

As of 6 October 2021, he was required to attend to various boat detailing tasks, as directed by his employer. He did not choose the yachts or boats he wanted to work on. The job tasks were allocated to him.
The products used for boat detailing are quite expensive. Anti-fouling paint, as far as he knew, was quite expensive. Cammeray Slipways provided the paint he used when he was antifouling boats.
The antifouling process may involve using hydrochloric acid or chlorine to clean the boat. It was provided by the employer. The boat would be washed with a high-pressure hose. He did not use his own hose or washing solutions.
He did not use his own tape or primer. They were provided by Cammeray Slipways.
When polishing and waxing boats, he used the washing solution provided by the employer. He was never asked to buy any particular cleaning, polishing, or waxing solution.
He did not use his own polishing machine and did not supply the solution. He was not responsible for replacement costs of polishing foam pads. All the brooms, sponges, buckets, rags, and materials such as cleaning/waxing products were provided by Cammeray Slipways. He could not afford this.
If he made errors cleaning or waxing the boat, he fixed them up.
He disagreed with the applicant’s evidence that he brought his own materials. Everything was provided for by the employer.
He worked the hours given to him by Cammeray Slipways. He would usually work from Monday to Friday. He was paid an hourly rate, and instructed to quote separately for boat polishing, so he did.
His hours were not consistently 40 per week. They varied by his employer’s instructions. On rainy days he was not working. If Hamish or Colin called and told him there was no work available, he did not go to work. He did not pick and choose the jobs allocated.
He did not choose his hours of work. If he was given a boat detailing job, he attended to it in the timeframe allocated by his employer. He was required to work in accordance with its instructions, and not with his own schedule.
He only worked with Cammeray Slipways. He did not work for another employer and did not engage other workers to work for him.
His recollection about how he started working with Cammeray Slipways differed from that of Hamish.
At around the time Hamish and Colin took over the slipways from SHS, Hamish approached him to “come onboard” when their company was set up. He indicated there would be plenty of work, so there would be no need for him to move to Kirribilli with his previous employer.
He never told Hamish he was paying his own insurance. He never asked about it.
He never worked for the Roseville Marina, as alleged by Hamish.
Mr Natoli made a further statement dated 7 June 2022.
He confirmed that the contents of his previous statement and the questionnaire remained accurate to the best of his knowledge and belief.
As far as he recalled, Cammeray Slipways commenced business in either late April 2021 or early May 2021.
He started working for Cammeray Slipways on or about 17 May 2021. He only worked for it until he was injured on 6 October 2021.
He was recently requested to provide bank statements and his tax invoice books.
He received his first payment from Cammeray Slipways on or about 20 May 2021, and his last payment was on 11 October 2021.
The last tax invoice he issued to Cammeray Slipways was dated 5 October 2021, but was issued in respect of his hours of work that day, being from 8.00am to 6.00pm, and an additional eight hours on 6 October 2021, charged at $30 per hour.
As is evident in his bank statements, for the period he worked for Cammeray Slipways, he did not receive any other payments from alternative employers. This is consistent with his tax invoice books.
His bank statements showed two credits from Hornsby Scrap, listed as “scrap metal sold”. Those payments do not represent income earned. He collected and sold waste scrap metal to Hornsby Scrap. He had attached copies of its tax invoices verifying those transactions.

Second respondent’s oral evidence

While acknowledging that the first occasion on which Mr Natoli gave evidence was affected by the fact that he was giving evidence by phone and was being asked questions about various documents that he had difficulty identifying, I found him to be an unimpressive witness. He often gave conflicting or non-responsive answers. His explanation of his instructions to his former solicitors that he had not lodged tax returns, when in fact he had, was in my view unconvincing, and not explained by a lack of sophistication in financial matters.
I have therefore approached Mr Natoli’s evidence with some caution and relied mainly on the documentary evidence.
Mr Natoli agreed that he had been detailing boats for a long period before his injury. He disagreed that he had worked at either Roseville, Woolwich, Kirribilli, or Greenwich marinas. He then conceded that he had worked at Woolwich and Kirribilli, as well as at Spit Bridge.
Mr Natoli registered SN Marine Detailing on 8 September 2000, and he did the paperwork himself. He registered Exclusive Marine Detailing on 16 February 2016. He had not used it for years, so did not know if it was still available.
Mr Natoli was not sure if he had business cards printed with the name SN Marine Detailing. He agreed that he might have. “I think so”. He agreed that he was making it clear to various people around Sydney Harbour that he was interested in boat detailing.
Mr Natoli agreed that he wrote his ABN by hand on his invoices. He did not leave a number out purposely. It was just a mistake. He intended to put the correct ABN on the invoices.
Mr Stanton asked when Mr Natoli last lodged a tax return. He was not sure, but thought it was “a few years ago”. He had stopped because he had problems with finances. He let them lapse, and it “took so long to get back onto my feet.”
Mr Natoli had used an accountant to lodge his tax returns. He had spoken to the ATO about the missing returns, and they had given him a “rough figure” that he owed, and they would accept instalments.
Asked about deductions he had claimed, Mr Natoli denied they included things like wax, polish or buffing machines. They included travelling expenses, fuel, and work clothes and shoes. Tools were not involved. He then said, “not much though”, regarding waxes and polishes. He agreed that he would offset the expenses he incurred against his income, and his tax would be calculated on the basis of his after-expense income.
Mr Natoli gave evidence that he obtained work through “word of mouth”. He would look at a boat before he started work and provide a quote. He would sometimes give a price based on the length of the vessel, but not all the time.
Regarding what Mr Stanton described as the “missing tax returns”, Mr Natoli said the ATO rang him and worked out roughly what he owed. He had not lodged tax returns for about four or five years before his injury. It was about two years before the injury that the ATO contacted him. He was still working as a boat detailer over that period.
Asked why he had not told the ATO about his earnings and expenses over that period, Mr Natoli responded that he had not lodged returns, and “you can’t tell them over the phone what you earned, what you don’t earn.” At one stage, he was paying $500 a month. His accountant got in touch with them, and “went from one department to the other and I stopped doing the payments. That was about four years ago.”
Mr Stanton asked Mr Natoli if he recalled talking to his solicitors about a request from the applicant’s solicitors for copies of his tax returns from 2015 to date. He answered “Yeah, I sent some invoices.” He “think[s]” he told them he did not have any returns for the period from 30 June 2015 to 2022. He was “not sure on that”. He could not recall the evidence he had just given about lodging tax returns as recently as four years ago, that is, in about 2018.
Mr Natoli agreed that, if he told his solicitors he did not have any tax returns after 2015, that would be incorrect. He was asked why he did not tell them he had tax returns after 2015, and his response was “because it wasn’t important”. He disagreed that he had withheld several tax returns from them. He denied wanting to hide what was disclosed in the returns.
Mr Natoli said he was going to do all his returns at once, “that’s the reason why I didn’t go ahead with it”. He had done further tax returns after 2015 but could not recall when. It was longer ago than a “couple of years”. He had not told his solicitors about them because he thought it was not necessary.
Mr Natoli gave evidence that his solicitors asked him if he had done his tax, and he said “no”. He denied that was a lie, saying “No. Which is the truth, I didn’t do my tax so why should I say yes when I didn’t?” He agreed that he had tax returns that post-dated 2015, his solicitors were asking for them, and he was not giving them to them. He denied hiding them.
Mr Natoli agreed that he had claimed business expenses in the tax returns he submitted after 2015. He was not sure if he still had copies of the returns. He had used an accountant to prepare them. He was asked if he could authorise the accountant to release them, and answered “No, because I haven’t done my tax so what can I release?”
Mr Natoli was then asked about the invoices he wrote for the year before his injury. He had copies of the invoices, but they were not paginated, as the ones before the Commission were. However, his solicitor confirmed that he had been given the identical documents from which everyone else was working. He agreed he was still using the name Exclusive Marine Detailing. He did not realise it had lapsed.
Mr Natoli agreed he had been providing detailing work through SHS for quite a long time – “about two years”.
Mr Stanton asked Mr Natoli if, when he provided a quote, he made certain assumptions about how long the work may take, and it was likely that a quoted price for a longer job may be higher, to which he agreed. He also agreed that some jobs may be “good”, in the sense that they were quicker than he had thought they may be, and sometimes the reverse would happen. He agreed that taking a risk in giving a quote is part and parcel of working as a boat detailer.
Mr Natoli agreed that on 27 April 2021 he had charged to tow a boat from Cammeray to Kirribilli, using SHS work boats.
Mr Natoli agreed that, sometime around May 2021 he became aware that a new business was taking over the running of the Cammeray Slipways, where at that stage he had been doing his work as a boat detailer.
Mr Stanton asked if Mr Natoli had a conversation with Mr Jacobsen, to which he responded, “It was Hamish”, but agreed he also spoke to Mr Jacobsen. He gave evidence that they approached him to work for them full time from Monday to Friday if there was work available there. It was not mainly the detailing, it was just to work there on the slipway, Monday to Friday.
Mr Stanton suggested that was not right. He referred to an invoice dated 17 May 2021, that was addressed to Cammeray Slipways. Mr Natoli agreed that the amount of $700 was the price he had provided to the applicant as a quote beforehand. It was “not really” essentially the same practice he had had with SHS, because the applicant provided all the chemicals and tools, and he was only there like a labourer.
Mr Natoli was asked about an invoice dated 1 June 2021, using the business name Exclusive Marine Detailing, with the ABN absent one number. There was a charge for materials for $50, “which they supplied”.
Mr Stanton suggested it would not be appropriate to charge for materials that someone else provided. Mr Natoli answered that it could have been that he used one of his cloths or a buff pad, and put it down as materials, “because all the polish and chemicals I used on the slipways was all belong [sic] to Cammeray Slipways”. Even if he put down materials used, that could be stuff left over from previous jobs before he came to Cammeray Slipways. He could not remember what that charge related to.
Mr Natoli stated that they had no buff pads at the slipway, so he used his stuff that he had stored at his garage. He agreed that he charged a suitable fee and added it to the quoted price. He had also added a charge for chlorine that did not come from his personal stock.
Mr Stanton asked Mr Natoli about an invoice dated 5 June 2021, on which there was no mention of the hours or days he worked on the job. Mr Natoli answered that the job could have taken more than one day, and it did not mean he had to do it on that date. He disagreed that he could select the day on which he did the quoted work.
Mr Natoli then agreed that if it was convenient to do work like this on Monday and Tuesday, he would do it then. He then disagreed that he would choose the days that suited him, saying it depended on the work he had at the slipways. Sometimes, they used to leave the job until “Thursday or Friday or Monday, Tuesday, or Wednesday, Thursday. So, there was no specific ‘do that boat by Thursday and Friday’”.
Mr Stanton suggested Mr Natoli had considerable control over what jobs he did, to which he responded, “when I was asked.” He agreed that he occasionally declined a job. He agreed that he would decline a job if it was dangerous or too physically awkward, and then said he had declined only one job because the boat was too high, “and I couldn’t do it anyway, that’s the only one I’ve declined anyway sort of…”
Mr Natoli gave evidence that the time he did not work Monday to Friday was when the weather was bad, and he got a call from the managers to say not to come in, or he would go in, and be sent home.
Mr Natoli agreed he wrote out invoices on the day after the work had been done, or on occasions on the day it was done.
Mr Stanton asked Mr Natoli about an invoice dated 22 August 2021, which was different from others, because it included charges for working particular hours on particular days. He agreed the applicant had asked him to do some work where various tasks would be charged on an hourly basis, and this was probably the first time he had done that. There were some eight-hour days, some shorter, and on Friday he did no work at all.
Mr Stanton referred to invoices that showed there were periods where Mr Natoli only worked a few days a week. Mr Natoli said it depended on the weather, or they had no work there for him to do with the other employee. He disagreed that it was more typical that he was not being offered jobs when he did not work.
Mr Natoli was asked about an invoice dated 13 September 2021, which included some hourly charges and a charge for having polished, cut, and waxed a yacht. He agreed he had been asked to provide a quote, which was accepted, for that work, and he then did the work and charged for it. He had taken a risk when he gave the quote that had it turned out to be a longer job, he might have made less money.
Mr Stanton asked if this was a similar job to those Mr Natoli did for SHS, in that he quoted, had the quote accepted, and did the detailing work. He responded that with SHS he basically just polished boats. He did not do any yard work or slipway work. Cammeray Slipways put him on an hourly rate, and when he had a proper boat to polish, it was extra.
Mr Natoli agreed to do certain work that was paid on an hourly rate and continued to do work for them on the basis of quoting for particular jobs he wanted to do. He agreed that if he did not want to work on a particular yacht, he would not give a quote. He would say he was not interested.
Mr Stanton asked if, during the period from about 17 May 2021 to the date of his injury, Mr Natoli had a practice of not performing detailing on Saturdays and Sundays. He responded that sometimes he would complete a job on Saturday morning. He agreed that generally his work activities were done on a weekday.
Mr Stanton put to Mr Natoli that from 17 May 2021 to 6 October 2021, he worked for about 46 days of the 105-day period, that is about 44% of the available Mondays to Fridays over that period. Mr Natoli responded that “there was no work to do…wet weather, weather predictions…” and that was probably why he only worked 44 days.
Mr Natoli did not recall a conversation with Mr Archer in which he used the word “subcontractor” or said he could do what he liked. He did not recall telling Mr Cope he would come back and finish a job later. He disagreed that when it suited him, he could stop working at the slipway and go about his personal business. He did not “down tools” and “do something else” on some days. When they finished early, they had to go home because there was no more work.
Mr Natoli did not recall a conversation with Mr Jacobsen in which “subcontractor” and “subcontracting” were discussed. The only conversation was that they wanted him to work fulltime, Monday to Friday. There was no discussion of contracting work or anything like that.
Mr Natoli gave evidence that it was not true that he said to Mr Jacobsen that he preferred to stay a contractor as he could earn $1,500 for two days work, which was better than being an employee.
Mr Natoli agreed he made more money doing accepted quotes for detailing, rather than working on hourly rates, but “he was employed by them.” He disagreed that that was why he preferred to remain a contractor.
Mr Stanton referred to Mr Natoli’s statement dated 5 November 2021. Mr Natoli did not recall being interviewed by someone working for iCare. He disagreed that it was wrong to have said that his ordinary work hours were 8.00am to 4.00pm, Monday to Friday. He maintained that he worked those hours “when there was work available”.
Mr Stanton put to Mr Natoli that the hours were not regular, but quite irregular. He responded that his “instruction from them was to be there on fulltime work basis when they had work available”. He had stated that everything by way of tools and equipment was provided. The $50 for the buffing pad was a “one-off”.
Mr Natoli was asked about using a product that combined cut, polish, and wax. He responded that he told “them” to order that specific material. He denied providing some from his own stock. He only used “a few little things” as they did not have anything in the beginning, and after that they would order “all sorts of stuff”. It was correct to say Cammeray Slipways provided all his materials.
Mr Stanton put to Mr Natoli that, allowing for some minor errors, the total of his invoices for the period of one year before he was injured was $49,972. He agreed that was what he was receiving over that 52-week period. There were four invoice books, but there might have been some he did not recall, “but I got most of them”. He then agreed that the four books were the only ones he used over the year before the injury.
Mr Stanton suggested that the weekly average over that period was $961 per week. He asked whether Mr Natoli had claimed business expenses in the two “missing tax returns”. Mr Natoli responded that he had only included his work clothes and petrol and “some little minor things that you claim”. He then said he did not include them.
Mr Stanton continued his cross-examination of Mr Natoli on 24 March 2023.
Mr Natoli was asked about his tax returns for the years 2015 to 2017. He agreed that he had claimed in 2016 $5,200 for rent of premises, at least part of which he was using for business. He could not recall where the premises were, but said they were a unit. He could not recall whether $5,200 was part or the whole of the rent. He said he had never claimed rent for the business. Mr Stanton put to him that there was no other reasonable explanation, to which he responded that he could not recall.
Mr Natoli gave evidence that the claim of $6,858 for a motor vehicle was for a sedan, not a utility or van. Mr Stanton put to him that there was no other reasonable explanation than that he was claiming the expenses of operating a vehicle, to which he responded that he could not recall. He did not know how the figure was calculated. He could not recall whether he had incurred $6,858 operating a vehicle that year. Being taken to the entry “Logbook Method” did not help him to remember what the expenses related to.

Mr Natoli confirmed that he had an accountant to help him. The accountant asked for the information he provided. He did not recall providing information about the motor vehicle. He had a mobile phone but could not recall whether he claimed that expense. He claimed clothes, tools, car registration and some fuel.
Regarding his 2017 return, Mr Natoli could not remember the property to which rental expenses of $2,200 related. It was part of the rent on a home unit. He did not know how the amount was calculated and relied on the accountant.
Mr Natoli recalled a large amount of operating expenses for the motor vehicle as it required a gear box and differential. He did not recollect other expenses of $3,419. He agreed that $16,000-odd was incurred in running a business.
The first respondent asked Mr Natoli whether, in the periods covered by the tax returns about which Mr Stanton had asked him, he had worked for other employers, and he said he had. He was then asked whether, in the months from about April 2021, he worked exclusively for the applicant, and not for anyone else. He responded he had worked only for them.

SUBMISSIONS

The submissions have been recorded and a transcript is available. I will therefore summarise the submissions.

Applicant

The applicant submitted that it has no liability in respect of the payments, because Mr Natoli was not a worker or deemed worker for the purposes of the legislation. It necessarily followed that it had no liability to refund monies paid by iCare.
Because of the agreement on the first day of the hearing, the primary issue for determination was whether Mr Natoli was performing work that was incidental to a trade or business regularly carried on by the contractor, in his own name or under a business or firm name.
It was conceded that the work exceeded $10 in value. The applicant submitted that the exclusions are significant. It submitted that the words “regularly carried on” require a consideration of what happened over a period of time. There is no other way of reasonably interpreting that phrase.
The applicant referred to the decision in Byrne v Mulholland[1]. The performance of the work done in a “sideline enterprise” over a seven-year period was important.
[1] [1995] NSWCC 22; (1995) 11 NSWCCR 739 (Byrne).
The applicant submitted that Mr Natoli’s pattern and practices in his boat detailing activities need to be considered over the extended period, given the legislation and the evidence. It was artificial and not in accordance with the phrase in the legislation to restrict the examination to particular periods of time. The question is “is it regularly carried on?”
The applicant submitted Mr Natoli had ABNs and business names. His invoices over the years had used these names. There are invoices from 6 October 2020 to the time he was injured. A lot involved work where he was charging per the length of the vessel.
The applicant submitted that, even towards the end of the period before the injury, there were charges on the second respondent’s invoices for work done on the basis of the length of the vessel. In the years prior to his injury, Mr Natoli was doing what he had always done. The applicant submitted it did not change the fact that he was operating a business as a boat detailer, just because in the last few months before his injury, more jobs were being done on a labour-provided time basis.
The applicant referred to Mr Natoli having charged for towing a boat. It submitted it was not just cutting and polishing boats. There was other work done and other charges. Mr Natoli was operating a business over many years, using various business names, and things would get charged for in different ways, but the applicant submitted “that’s what the business does”.
The applicant submitted the use of the business names on the invoices “and what have you” is illustrative of the fact that a business was carried on, and the way it was done was unchanged. It was all part and parcel of a business being regularly carried on. The expenses on the taxation documents are illustrative of the same concept.
The applicant submitted that, although “worker” per se is not in issue, quite a lot of the invoices demonstrate, and some of the witness statements describe, a situation whereby Mr Natoli was not working Monday to Friday, in regular set hours.
The applicant submitted that choosing to work particular hours and choosing to walk away from offers of work is consistent with operating a business. There was nothing that changed that fundamental characteristic, simply because Mr Natoli started to do more work for which he was charging on an hourly basis rather than on some lineal metre basis, or some other basis. They were not frequent but there were charges for some materials. They are indicative on the face that this business was being operated over the year before Mr Natoli was injured.
The applicant submitted that, when I take into account all those factors I would be well satisfied that Mr Natoli, over the period of years before he was injured and at the time he was injured, was doing things that were work incidental to a trade or business being regularly carried on by him in his own name and in the business name he was using.
The applicant submitted that, to the extent there was any inconsistency between Mr Natoli’s evidence and that of other witnesses, I would prefer the statement evidence of the other witnesses.
That is because Mr Natoli’s evidence was affected by two things. One is his self-admitted poor recollection for detail, and the other is associated with his credit. He firstly put in a statement that was provided to iCare shortly after he made the claim that he was effectively working regular hours Monday to Friday every week and the invoices show that is simply not right.
The applicant submitted Mr Natoli kept from his previous solicitors the taxation returns. Those solicitors advised they had been instructed there were no recent tax returns and as was revealed on the previous occasion, there were some tax returns and we had some of them, possibly, or ones that were actually done. That could cause me to be very careful about assessing Mr Natoli’s evidence where it is in conflict with other witnesses.
The applicant submitted there was no other reasonable explanation than that Mr Natoli was deliberately trying to withhold those tax returns. The details in the 2016 and 2017 returns provided some inkling of why that would be so, because they detail quite significant expenses – rent, motor vehicle expenses and other unidentified expenses. That was not the hallmark of a witness who was endeavouring to be truthful, but was quite the reverse.
The applicant submitted that a secondary issue was in relation to what weekly compensation was payable. It submitted iCare had relied upon some consistent hours from Monday to Friday, multiplied by the hourly rate, to come to a particular figure, but if the year before the injury was considered, the PIAWE was much lower. The average of what the second respondent was earning was $961, and once expenses were deducted, it would be less than that.
The applicant conceded that Member Harris had made a decision that was unhelpful to it. Member Harris’s decision is in the matter of Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Limited & others.[2]
[2] [2022] NSWPIC 81 (Transport Contract Services).
The applicant submitted that the PIAWE were an inappropriately inflated figure that iCare accepted and used.
In reply to the respondents, the applicant submitted that it is misleading to consider that the concept that Mr Natoli was exclusively working for it is somehow definitive of something. An independent business can operate possibly for decades, and only have one client. You do not need to have multiple clients to be an independent contractor, to be running a business.
The applicant submitted that the legislation talks about a business being regularly carried on. It is not saying “a business being carried on at the time you were injured.” “Regularly carried on” must mean over a period of time, and even within the year he was injured, the second respondent was sending invoices to people other than Cammeray Slipways.

First respondent

The first respondent submitted that the documents that provided the basis for the calculation of the PIAWE are in evidence and set out in some detail the calculations, which are quite precise. The submissions in response were very imprecise, and absent any evidence that is inconsistent with the evidence iCare relied upon, the applicant had not discharged its onus of successfully challenging the rate, and the argument in relation to the PIAWE should be dismissed.
With respect to the main issue, the first respondent submitted that there is no doubt that at the time relevant to this injury, and for many years before, Mr Natoli was carrying on a business. The crucial word is whether the work being performed at the relevant time was incidental to that business.
The first respondent submitted it is quite clear that at the relevant time, a period of some five to six months before the injury, the work that Mr Natoli was performing for the applicant was not incidental to his business, it was his entire business. It submitted that was completely fatal to the applicant’s argument.
The first respondent submitted that the suggestion that I should have regard to the applicant’s business activities five, six, or seven years before, is incorrect. The facts in Byrne, if carefully examined, were very, very different. It submitted that a case where the facts were remarkably similar is a decision of Deputy President Roche in Malivanek v Ring Group Pty Ltd.[3]
[3] [2014] NSWWCCPD 4 (Malivanek).
The first respondent submitted that the applicant obviously suspected Mr Natoli was doing work elsewhere, but there is no evidence of that.
The first respondent submitted that it may be that Mr Natoli was not working full time, but there is no evidence he was working for anyone else. It was not put to him in cross-examination that he was working for anyone else during the relevant period. When he was asked by Mr Harris, he said that in the earlier years, 2016, 2017, he did work for a series of people, but at least from May 2021, he was working exclusively for the applicant. He was not challenged on that.
The first respondent submitted that the evidence established beyond doubt that, at the very least in the period between May 2021 and the injury on 6 October 2021, Mr Natoli was working exclusively for the applicant, and the work he was doing, albeit in a business, was not incidental to a trade or business, but was the entire trade or business.
As for the suggestion there are credit issues in relation to Mr Natoli, the first respondent submitted there was no basis for that. He had come across as possibly unsophisticated in financial matters. It was entirely understandable that he may have a poor recollection of matters that occurred six or seven years earlier, but there was no relevant inconsistency.
The first respondent submitted that if Mr Natoli worked less hours than he alleged, that does not matter. The fact is that during the relevant period, whatever hours he was working, he was working exclusively for the applicant. The evidence is overwhelmingly in favour of a finding that at the time of the injury, he was deemed by cl 2 of Schedule 1 of the 1998 Act to have been a worker employed by the applicant. The only relevant question is whether the work being performed for the applicant was “incidental” to that business, which the first respondent submitted it clearly was not.
The first respondent finally submitted that the Application should be rejected, and there should be an order for payment by the applicant to it of the payments made to date.
In reply to the applicant’s submissions in reply, the first respondent submitted the relevance of Mr Natoli having commenced doing work for the applicant in May 2021 was that was when the business commenced. It is clear from his evidence, not contradicted by any other evidence, that from that time onwards, the only work he was doing was for the applicant.
The first respondent submitted that added weight to the submission that what Mr Natoli might have been doing before then is not relevant.

Second respondent

The second respondent adopted and endorsed the first respondent’s submissions.
The second respondent submitted that it is very clear from his bank statements that from about May 2021 to October 2021, he was working exclusively for the applicant. There are no other payments apart from those in relation to Hornsby Scrap Metal, which are irrelevant.
The second respondent submitted that the employment or work status of people changes over the years. Certainly, he was operating a business prior and at the time of the 2015, 2016, 2017 tax returns, but they are a number of years prior to the period we are looking at.
The second respondent submitted the injury occurred during a six-month period when he was only doing work for the applicant. Similarly to Malivanek, he was not working for anybody else, he was working exclusively for the applicant. He also referred to the decision in Pasqua v Morelli Constructions Pty Ltd.[4] He submitted the relevant time must be when the injury was occurring, not five or six years previously. The phrase “regularly carried on” must cover the period immediately prior to and at the time the injury occurred.
[4] [2009] NSWWCCPD 153 (Pasqua).
In terms of Mr Natoli’s credit, he endorsed and adopted the first respondent’s submissions. He relied on a tax accountant. It was not a complicated business, but there is reference to BPI income and expenses, and the tax returns were six or seven years before.
The second respondent submitted that his status changed in relation to the applicant. That is borne out in the evidence of Colin Jacobsen. He submitted I would accept his recollection of what occurred and the intention at the time. The evidence was very clear and had not been disturbed by cross-examination. He was exclusively receiving income from the applicant.
In terms of the PIAWE, the second respondent submitted iCare’s documents speak for themselves. The calculations clearly set out how they had been calculated. There is in any event only approximately $20 difference between the calculation and that of the applicant. The PIAWE have been calculated correctly.

SUMMARY

Worker/deemed worker

Section 4 of the 1998 Act provides:
“‘worker’ means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include--
(a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or
(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or
(c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or
(d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978 ) while--
(i) participating in an authorised activity (within the meaning of that Act) of that organisation, or
(ii) engaged in training or preparing himself or herself with a view to so participating, or
(iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged,
if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things.”
Clause 2 of Schedule 1 of the 1998 Act provides:

“Other contractors

(1) Where a contract--
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.

(3) A person excluded from the definition of
‘worker’ in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”

Neither the first nor the second respondent contends that Mr Natoli was a worker, within the meaning of s 4 of the 1998 Act, but rather that he was a deemed worker, pursuant to cl 2 of Schedule 1 of the Act.
In Scerri v Cahill,[5] Bainton AJA (Kirby ACJ and Rolfe AJA agreeing) held (at [399D]) that, to rely on cl 2 of Schedule 1, an applicant must establish that:
(1)     he (or she) was a party to a contract with the respondent to perform work;
(2)     the work exceeded $10 in value;
(3)     the work is not work incidental to a trade or business regularly carried on by the applicant in his (or her) own name or under a business or firm name, and
(4)     the applicant has neither sublet the contract nor employed workers in the performance of it.
[5] (1995) 14 NSWCCR 389.
There is no dispute that Mr Natoli was a party to a contract with the applicant to perform work that exceeded $10 in value. It was not suggested that he sublet the contract or employed workers in the performance of it.
The applicant maintained that the work Mr Natoli performed for it was incidental to a trade or business he regularly carried on, relying on evidence that he had carried on business as a boat detailer for a number of years.
There is no evidence that, between May 2021, when the applicant commenced business and Mr Natoli started to perform work for it, and the date of the injury on 6 October 2021, he performed work for any other person or business. The evidence is, to the contrary, that the only work he performed was for the applicant. His bank records bear this out, it was not suggested in cross-examination by the applicant that he had performed work for others, and his evidence in cross-examination by the first respondent was that he had not.
The applicant, however, submitted that the phrase “regularly carried on” must mean carried on over a period of time, and not just at the time Mr Natoli was injured.
In Malivanek, Roche DP referred to the authorities that have considered the deeming provisions, including Humberstone v Northern Timber Mills;[6] Turner v Stewardson;[7] and Wathen v AUT Holdings Pty Ltd.[8]
[6] [1949] HCA 49; 79 CLR 389 (Humberstone).
[7] [1962] NSWR 137 (Stewardson).
[8] [1977] 51 WCR 1 (Wathen).
In Humberstone, Dixon J (as his Honour then was) said, commencing at [401]:
“I think that the purpose of the exception or exclusion expressed by the words in question was to confine the benefit of the conclusive presumption which it establishes to persons who do not conduct an independent trade or business, who are not holding themselves out to the public under their own or a firm or business name as carrying on such a trade or business and who do not in the course of that trade or business, as an incident of its exercise, undertake the work by entering into the contract. The provision will thus cover men who work for the principal but have no independent business or trade and men who though carrying on an independent trade or business undertake a contract outside the scope or course of that trade or business. The word ‘trade’ is capable of including any handicraft and in that sense it may seem to lack the element of systematic practice or holding out which the idea of openly conducting a distinct or independent trade or business and seeking custom implies. But a consideration of the policy of the provision as well as of its text appears to me to show that the distinction it seeks to draw is between on the one hand an independent contractor whose relation with the principal is special or particular either because it is outside the course of the general business of the contractor or the general practice of his trade or because he has no such general business or is not a general practitioner of his trade, and on the other hand an independent contractor who performs work successively or perhaps concurrently for his customers or others in the course of a definite trade or business carried on systematically or who holds himself out as ready to do so.”

His Honour went on to say, at [402]:
“The suggestion which this language conveys of the existence of a business or the practice of a trade is much strengthened in sub-s. (6) by the words ‘carried on,’ ‘regularly’ and ‘in his own name or under a firm or business name.’ These all indicate a business or trade conceived as independently existing or exercised by a person holding himself out to the public under a name or style. No doubt the policy is a matter of inference but it seems reasonable to suppose that it was considered proper that a person conducting a business in the course of which he contracted to perform work should himself carry the risk of personal injury as one of the hazards of his business, while the man who worked under contract but only for the employer or without any general trade or business or outside his trade or business should, like an ordinary employee, be insured by the Act against the risk of injury in his work.”
In Stewardson, the Court of Appeal said:
“Looked at broadly the Legislature meant to provide that persons who are in business for themselves and who systematically and regularly accept work to be done under contract and who hold themselves out as open to be employed under contract are expected to undertake the risk of injury and not to rely for compensation upon the principal whose contract work they are performing at the moment of injury. The original notion that the contractor is deprived of the benefits of the Act because he is not a worker has disappeared and today many small contractors are covered by the Act. This is in keeping with modern practice as to payment for labour at piece work or contract rates.” (Emphasis added).
In Wathen, the applicant had been conducting a carrying business before contracting with AUT to carry pipes exclusively for it. AUT argued that the work performed under the contract was “incidental to a…business regularly carried on by [the worker] in his own name or under a business or firm name.”
Mahony JA referred to Humberstone, and said, at [5]:
“In the present case, the worker had no trade or business other than what he was doing for the defendant. The case was therefore not ‘work incidental’ in the subsection. In my opinion, the learned Judge properly held that s 6(3A) applied to deem the worker to be a worker within the Act.”
In Malivanek, Roche DP concluded that, while it was not necessary for there to be a “holding out” before an applicant can be regularly conducting a trade or business (referring to the decision in Higgins v Jackson & Ors),[9] Mr Malivanek did not “systematically and regularly accept work to be done under contract”; and, as in Wathen, he had no trade or business other than what he was doing for the respondent.
[9] [1976] HCA 37; (1976)135 CLR 174 (Higgins).
As in this case, evidence was called in Malivanek of Mr Malivanek having subcontracted to others while he was engaged by the respondent in that matter. Some of the evidence was described by Roche DP as “vague and imprecise and generally of no persuasive value”. There was no basis for the “belief” of the respondent’s principal that Mr Malivanek was subcontracting to other people. The documentary evidence was to the contrary.
The evidence regarding Mr Natoli having subcontracted to others while engaged in work for the applicant is similarly vague and imprecise. As in Malivanek, the documentary evidence does not support the evidence given by the applicant’s witnesses.
Mr Jacobsen’s understanding was that Mr Natoli undertook work for other businesses and did not solely contract to the applicant. His “understanding” does not constitute evidence.
Mr Brooke-Smith stated that Mr Natoli told him he had completed jobs at Roseville, but he did not know if that was before or after he worked at the applicant’s business.
Mr Rabbits “was aware” that Mr Natoli performed work at other marinas, and his “understanding” was that he was often paid cash. He has given no evidence as to how he “was aware” or “understood” this to be the case.
Mr Bushell stated that Mr Natoli always worked as a contractor. Mr Archer gave the same evidence, as did Mr Cope, adding that Mr Natoli was undertaking contract work at Roseville about 10 years ago, which is of no relevance. None of this evidence is of assistance.
The applicant relied on the decision in Byrne in submitting that Mr Natoli regularly carried on a trade or business. As the first respondent submitted, the factual situation in Byrne was very different.
The facts of Byrne, briefly, were that Mr Byrne was employed as a salesman of electrical appliances, including televisions. He commenced a business that involved buying, and reselling, equipment such as antennae and cabling to purchasers of televisions.
Either at the same time, or some time after he commenced this business, Mr Byrne commenced installing antennae.
His Honour described the business as well established by the time Mr Byrne sustained injury. He was installing an antenna for Mr Mulholland when he fell some 60 feet from a tower. He claimed to be a deemed worker, pursuant to cl 2 of Schedule 1 of the 1987 Act, which was in similar terms to the current provision in the 1998 Act.
Mr Byrne had, in the year prior to his injury, performed about 11 installations of antennae per month.
Neilson J said:
“…it must be borne in mind that the applicant supplied and/or installed for a large number of people and businesses in Merriwa and district…There was no special tie to the respondent – Mr Mulholland was just another of his clients…”
The applicant in Byrne, “tried valiantly”, his Honour said, to overcome the authority of Higgins that there was no separate requirement of “holding out”.
Counsel for Mr Byrne submitted that regularity was required; an indicium of regularity was a holding out; here there was no holding out; and therefore, there was no regularity.
His Honour stated that counsel relied on two particular factors, firstly, that Mr Byrne did not advertise; and secondly that he did not offer his services to Mr Mulholland in 1992, but rather Mr Mulholland requested his services.
In rejecting this submission, his Honour noted that at the start of his business, Mr Byrne would offer his services to those who got into difficulty or did not know how to install an antenna. “Thus he built up his business; thus he built up his reputation in the area as an installer of antennae… [the applicant] had become ‘known as’ carrying on such a business, to use the words of Barwick CJ in Higgins…”
His honour, after referring to the facts of Higgins, including that the applicant in that matter conducted his business on a part-time basis, said:
“If Mr Higgins carried out a business regularly, then I must find that the applicant has done so, by analogy. Even if I be wrong in relying on this analogy, it seems to me that, on all the evidence, the present applicant was regularly carrying on the trade or business of a television antenna supplier and installer. Higgins clearly stands as authority that the trade or business need not be full-time or be the substantial part of the person’s livelihood.”
There is no evidence that the second respondent did any work for a large number of businesses, or any businesses, after he commenced providing his services to the applicant, and it was not “just another of his clients”, as Mr Mulholland was to Mr Byrne.
The second respondent relied on the decision in Pasqua.
The facts in Pasqua were that Mr Pasqua had conducted a carpentry business until June 2008. His business became “very quiet”, and he went back to work for Morelli Constructions, where he had worked as an apprentice, until 1 September 2008, when he injured his back. Roche DP said at [44]:
“That Mr Pasqua worked exclusively for Morelli during the relevant period is also confirmed by his bank statements which confirm that his only credit deposits during the relevant period were from ‘Morelli Group’. Similarly, his bank statements do not reflect a pattern of expenditure consistent with the conduct of a trade or business of carpentry.”
After referring to Humberstone, Higgins, Stewardson, Wathen, and Cam v Cousins Interstate Transport Pty Ltd,[10] Roche DP said at [52]-[53]:
“The circumstances in Cam and Wathen are analogous to the present matter. Mr Pasqua clearly conducted a carpentry business until June 2008. From that time, however, his circumstances changed and he contracted exclusively for Morelli, but not as a part of a trade or business systematically or regularly carried on by him. As in Cam and Wathen, Mr Pasqua ceased conducting his business once he contracted exclusively with Morelli in June 2008. In these circumstances he is entitled to the benefit of the deemed worker provisions.
The Arbitrator misdirected himself where he said (at [78]) ‘the real question would appear to be whether...it could be said that the applicant was carrying on his work ‘regularly’.’ As can be seen from a review of the above authorities, the appropriate question in cases of this kind is whether or not the contractor was, at the relevant time, regularly carrying on a trade or business in his own name or under a business or firm name…”
[10] [1964] NSWR 1288.
As was the case in Pasqua, Mr Natoli’s bank statements “do not reflect a pattern of
expenditure consistent with the conduct of a trade or business”.
I do not accept that Mr Natoli was working from 8.00am to 4.00pm, five days a week, for the applicant, but that is not determinative. Like Mr Pasqua, he had previously conducted a business, but once he commenced performing work for the applicant, and for the approximately five months before he was injured, he contracted exclusively for the applicant.
The fact that Mr Natoli claimed business tax deductions in 2015, 2016, or 2017 is not in my view evidence of anything other than that he was operating a business in those years. As he submitted, that was several years before the period being considered. His circumstances had changed by 2021. His situation is analogous to those of Mr Malivanek and Mr Pasqua.
I am satisfied on the evidence that the work Mr Natoli performed for the applicant was not incidental to a trade or business regularly carried on by him.
I therefore determine that the second respondent was deemed to be a worker employed by the applicant at the time of the injury.

Pre-injury average weekly earnings

The applicant disputed the first respondent’s calculation of Mr Natoli’s PIAWE.
The first respondent has lodged documents that clearly evidence the basis on which the PIAWE were calculated. It had all but two invoices, and a query regarding one invoice was resolved. The calculation was reviewed and affirmed. The second respondent’s earnings over 18 weeks were $17,672.50, so his PIAWE were $981.81 per week.
The applicant submitted that the PIAWE were $961 per week but submitted that expenses incurred by Mr Natoli should be deducted from his earnings.
Member Harris said in Transport Contract Services at [105]:
“The parties agreed that the PIAWE was assessed on the income paid by the employer to the worker under the agreement for the 12 months prior to injury. The gross amount of income (used in a neutral term) before expenses was also agreed. Whilst the worker obviously has a right to claim a deduction because various costs are properly incurred expenses, I agree with the insurer’s submission that the rates provided in the agreement are earnings as defined in clauses 2 and 6 of Schedule 3 of the WC Act. For this reason, I conclude that the insurer has correctly assessed the worker’s PIAWE based on the provisions of the agreement.”
Transport Contract Services lodged an appeal against the decision of Member Harris – Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd.[11]
[11] [2022] NSWPICPD 47.
Snell DP determined that the appeal could not be brought, as the monetary thresholds in s 352(3) of the 1998 Act were not satisfied, and there was no right of appeal. However, he dealt with the ground of appeal in the event that he was wrong in forming that view.
Snell DP said at [74]-[76]:
“The term ‘pre-injury average weekly earnings’ is specifically defined in cl 2(1) of Sch 3 to the 1987 Act, as ‘the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury’. This is consistent with the concept that gross earnings can be received ‘in any employment’ within the terms of the definition. The upper limb of the s 11(1) equation, at issue in Nelson[12], contained no reference to gross earnings. I accept the insurer’s submission that the statutory test at issue in Nelson was different to that raised in the current proceedings going to the meaning of ‘pre-injury average weekly earnings’ … The decision in Grass[13], on which the employer also relied, like Nelson, fell under an earlier statutory regime. It can be readily distinguished on its facts. It does not assist in determining the issues in the current matter.
The insurer submits that the term ‘gross’ in the definition ‘should not be read down to mean ‘net’. In Project Blue Sky[14] the plurality said:
‘Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.
The word ‘gross’, in the construction for which the insurer contends, is given its plain and ordinary meaning. The employer has not suggested an alternative construction that would give meaning to the word ‘gross’ in the definition of ‘pre-injury average weekly earnings’”.
[12] J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625.
[13] Lower North Shore Community Transport Inc v Grass [2007] NSWWCCPD 106.
[14] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355.
Snell DP therefore agreed with Member Harris’s determination. I respectfully agree with Snell DP.
The applicant’s submission that the first respondent has incorrectly calculated Mr Natoli’s PIAWE is rejected.
The applicant is, pursuant to s 145(1) of the 1987 Act, required to reimburse the first respondent the amount specified in the notice.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 190

28 April 2023