Cavar v Nova Security Group Pty Limited

[2022] NSWPICPD 31

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Cavar v Nova Security Group Pty Limited [2022] NSWPICPD 31
APPELLANT:	Celija (Celia) Cavar
RESPONDENT:	Nova Security Group Pty Limited
INSURER:	Employers Mutual NSW Pty Limited
FILE NUMBER:	A1-W2915/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	3 August 2022
ORDERS MADE ON APPEAL:	1.    The Member’s Certificate of Determination dated 11 November 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – procedural fairness – Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; Allesch v Maun [2000] HCA 40; Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13 applied – determinations of fact – principles applicable – Whiteley Muir & Zwanenberg Ltd v Kerr - (1966) 39 ALJR 505; Najdovski v Crnojlovic [2008] NSWCA 175; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 [19]–[20] applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Ms L Goodman, counsel, with Mr B Necovski, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	11 November 2021

INTRODUCTION AND BACKGROUND

1. Ms Celija Cavar (the appellant) alleged that she suffered an injury on 25 October 2020 in the course of her employment as a security guard. The appellant made a claim for weekly compensation payments and treatment expenses against Nova Security Group Pty Limited (the respondent), which company she alleged was her employer at the time of the injury. The claim, which appears to have been directed to Insurance and Care NSW (icare), was initially accepted and the appellant was paid weekly compensation until about 15 July 2021. On 8 February 2021, the appellant made claims for lump sums for whole person impairment, pain and suffering pursuant to the former s 67 of the Workers Compensation Act 1987 (the 1987 Act) and damages as provided for in s 151G of the 1987 Act.

2. Liability for the injury and the claims for compensation was declined in dispute notices issued by icare dated 11 June 2021, 22 June 2021, 27 July 2021 and 29 July 2021.[1] In the notice dated 27 July 2021, it was disputed that the appellant was a worker or deemed worker within the meaning of the 1987 Act and that the appellant was ever employed by the respondent.[2] It was asserted by the respondent that the appellant was employed by Heckenburg Group Pty Ltd t/as Heckenburg Protection Agency (Heckenburg), which company sub-contracted to the respondent.

   [1] Reply to Application to Resolve a Dispute (reply), pp 1–20.

   [2] Reply, pp 6–10.

3. The appellant commenced proceedings in the Commission. The matter was allocated to a Member of the Commission, who directed that the parties file written submissions in support of their cases. The Member issued a Certificate of Determination in which she accepted the respondent’s submissions that the appellant was not employed by the respondent and entered an award for the respondent.

4. The appellant appeals that decision.

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:

   “(3)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

2. The appellant indicates in her appeal application that she considers that the matter could not be determined on the basis of the documents and the written submissions of the parties. The appellant does not provide any reasons as to why the matter requires an oral hearing.

3. The respondent indicates that the matter is suitable for determination on the basis of the written submissions and the documents in evidence.

4. Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that an appeal from a decision of a non-presidential member is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing. The Member’s decision was based upon the documentary evidence before her and the written submissions of the parties which referred to that evidence. The parties have had the opportunity to make submissions as to how the evidence assisted their respective cases. The parties have also provided written submissions in support of, or in response to, the grounds of appeal brought by the appellant.

5. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties as to whether the appeal can proceed to be determined on the basis of these documents. I do not consider that it is necessary for either party to address further in respect of whether the Member did, or did not, err in fact, law or discretion. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

FRESH EVIDENCE

1. The appellant seeks to file “fresh evidence” in the appeal. The documents consist of:

   (a)    a photograph of a page from correspondence in which the appellant made submissions about expenses pursuant to s 60 of the 1987 Act. The page bore the mark “ZZ >>SC,” and it appears that the appellant asserts that the mark indicates that the document has been “hacked”;[3]

   (b) a letter dated 8 January 2022 from the Australian Competition and Consumer Commission in response to a complaint made by the appellant that her documents had been “hacked”,[4] and

   (c)    a letter directed to icare dated 15 July 2021, in which the appellant objected to a telehealth appointment arranged by icare because her mobile telephone was being monitored by a number of criminals not known to her.[5]

   [3] First annexure to the appellant’s amended appeal submissions dated 10 January 2022.

   [4] Second annexure to the appellant’s amended appeal submissions dated 10 January 2022.

   [5] Third annexure to the appellant’s amended appeal submissions dated 10 January 2022.

2. The appellant separately lodged documents in support of her amended appeal submissions. Those documents consisted of:

   (a)    Certificates of Capacity dated 8 September 2021 (already in evidence), 9 November 2021 and 9 December 2021, all of which certified the appellant as having no capacity for work;

   (b)    a Centrelink Medical Certificate dated 23 November 2021 certifying that the appellant was unfit for work from 23 November 2021 to 23 January 2022;

   (c)    referrals by Dr Savio Irani-Lewis, general practitioner, dated 15 November 2021 and 9 December 2021, seeking assistance in relation to the appellant’s inability to cope with her pain and her anxiety.

3. The appellant seeks to adduce further additional documents which were lodged with the appellant’s submissions in reply to the respondent’s Notice of Opposition on 3 March 2022. Those documents included;

   (a)    an extract from a part of one page of a Form 9 – Application to Appeal Against Decision of Member, bearing reference initials, which initials the appellant said were unknown to her;

   (b)    a Certificate of Capacity dated 10 February 2022;

   (c)    various documents already in evidence, endorsed with the appellant’s remarks about that evidence, and

   (d)    a letter to the appellant from icare dated 21 July 2021 advising the appellant of the contact person assigned to her claim.

Consideration as to whether the documents ought to be admitted

1. Section 352(6) of the 1998 Act provides that fresh evidence or additional or substituted evidence that was not before the Member in the arbitral proceedings may only be admitted on appeal with the leave of the Commission. The Commission is not to grant leave unless the evidence was not available to and could not have been reasonably obtained by the party seeking to adduce the evidence, or that a failure to grant leave would cause a substantial injustice in the case.

2. The Court of Appeal considered the Commission’s power to admit late evidence on appeal in Northern New South Wales Local Health Network v Heggie,[6] in which Basten JA said that:

   “the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.”[7]

   [6] [2013] NSWCA 255; 12 DDCR 95 (Heggie).

   [7] Heggie, [66].

3. Justice Barrett considered the Commission’s power to admit additional evidence on appeal in CHEP Australia Limited v Strickland,[8] where his Honour observed:

   “The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[9]

   [8] [2013] NSWCA 351 (Strickland).

   [9] Strickland, [31].

4. The letters from the appellant to icare dated 15 July 2021 and from icare to the appellant dated 21 July 2021, which the appellant seeks to have admitted on the appeal, are clearly documents which were available to the appellant and could reasonably have been obtained by her in the proceedings before the Member. There is no cogent reason put forward by the appellant as to why she did not seek to rely upon the available documents at that time. The documents are not admitted.

5. The various documents already in evidence, including those endorsed with the appellant’s remarks, do not constitute further evidence. The remarks are in the nature of further submissions made by the appellant about the evidence.

6. In relation to the certificates that post-date the arbitration, which the appellant now seeks to adduce into evidence, those certificates do not take the evidence any further than the evidence already before the Member. The Member provided cogent reasons for rejecting the opinion that the appellant had no capacity for work as a result of the pleaded injury.[10] Noting the Member’s reasons for reaching that conclusion, it cannot be said that the failure to admit the certificates would cause a substantial injustice in the case.

   [10] Cavar v Nova Security Group Pty Limited [2021] NSWPIC 451 (reasons), [98]–[102].

7. The referrals provided by Dr Lewis to other practitioners indicate that the appellant required treatment for her psychological symptoms. The appellant may be seeking to rely upon those documents in order to establish that she suffered from a psychological condition because of the injury. In that case, the evidence supporting that notion is far from conclusive and the referrals take that issue no further. If the appellant is relying on the referrals to support her claim for incapacity or her claim for pain and suffering, for the reasons put forward by the Member, and my conclusions set out below in this appeal, those claims were not available to the appellant and the documents, once again, take the matters in issue no further.

8. The relevance of the letter to the appellant from icare dated 21 July 2021 advising the appellant of the contact person assigned to her claim is not apparent. Similarly, the relevance of the extract from one page of a Form 9 – Application to Appeal Against Decision of Member is unclear. Neither document has sufficient probative value to satisfy the requirements of s 352(6). If those documents are sought to be relied on in order to establish liability on the part of the respondent, they are of no probative value and would not change the outcome arrived at by the Member.

9. In relation to all of the documents sought to be relied upon by the appellant in the appeal that were not before the Member, it is incumbent upon the appellant to establish that if the documents she seeks to rely on were not admitted, it would cause her a substantial injustice. The documents and the appellant’s submissions about those documents are not sufficient to promote the conclusion that Member’s conclusions reached were wrong and ought to be disturbed. There is no injustice to the appellant if those documents are not admitted. Therefore the documents are not admitted on the appeal.

THE EVIDENCE BEFORE THE MEMBER

1. A number of Applications to Admit Late Documents (AALD’s) were lodged by the appellant in which the appellant made submissions as to the veracity of the documents relied upon by the respondent and the purported illegality of the conduct of various people and organisations involved in her claim. Some of the annexures to the AALD’s are either duplicates of documents already in evidence or not relevant to the issues in dispute. It is thus not necessary to refer to the irrelevant documents and only those documents that are relevant to the issues on appeal are summarised below.

The appellant’s statement evidence

1. The appellant provided a statement (wrongly dated 25 August 2012) at the direction of the Commission.[11] She stated that she commenced employment with the respondent as a security guard/officer on 1 March 2019. She provided the contact details of the person to whom she reported, who she referred to as “Noah.” She said that she and Noah would communicate in relation to shift arrangements by way of text messages.

   [11] AALD dated 25 August 2021, pp 1–9.

2. The appellant said that at the commencement of each shift, she would have to confirm that she was working, be at the correct venue at the appointed time, and show her security licence. She said she would sign on and off for each shift on the list of workers prepared by the respondent.

3. The appellant said that she was paid $25 per hour in cash every Thursday and the amount of work she performed was variable. She identified several other employers with whom she worked, but denied ever having worked for Heckenburg. She pointed out that she had not worked for the respondent at the time the sub-contractor’s agreement was made.

4. The appellant asserted that various documents (including the second report from Dr Teychenné) were not authentic and fraudulent criminal activity was being undertaken in relation to her claim and her finances. She described the treatment provided to her and said that she had developed anxiety and depression and her physical limitations resulting from the injury were continuing.

5. The appellant produced a list of dates relating to shifts she undertook when text messages were sent to her. She also produced several re-typed transcripts of text messages that were sent by “Noah.”[12] All of the messages which related to work at ANZ Stadium, Bankwest Stadium and Qudos Bank Arena included the advice to sign on under the name of the respondent.

   [12] AALD dated 25 August 2021, pp 23–35.

The appellant’s bank records

1. The appellant’s records from the Arab Bank Australia Limited were in evidence.[13] Those documents showed four direct deposits by “HQ Group” of varying amounts between 15 October and 5 November, presumably in 2020. Those deposits consisted of:

   (a)    $218.75 on 15 October;

   (b)    $131.25 on 22 October;

   (c)    $168.75 on 29 October, and

   (d)    $100.00 on 5 November 2020.

   [13] AALD dated 30 August 2021, pp 22–24.

Tax invoices from Heckenburg to the respondent

1. Tax invoices from Heckenburg to the respondent in respect of the weeks ending 11 October 2020, 18 October 2020 and 25 October 2020 were in evidence. The documents indicate that Heckenburg was billing the respondent for shifts performed by the appellant.[14]

   [14] AALD dated 9 September 2021, pp 2–4.

NCA Consulting factual investigation reports

1. The respondent arranged for a factual investigation into the appellant’s workers compensation claim to be conducted. The report, which was compiled by Ms Tamison Dunn of NCA Consulting, was dated 18 February 2021.[15] Ms Dunn advised that the appellant had declined to participate in the investigation process and Heckenburg also failed to co-operate with the investigation. Ms Dunn said, however, that NCA Consulting was able to conclude that the appellant was employed by Heckenburg, who sub-contracted to the respondent, and the respondent in turn sub-contracted to National Event Services Pty Ltd. Ms Dunn advised that the respondent’s General Manager, Mr Evan Wall, confirmed by way of telephone exchange and by email that the appellant had been employed by Heckenburg since June 2019 and was paid $25 per hour as either cash or direct credit into her bank account. Ms Dunn reported that Mr Wall said that he had no knowledge of the incident involving the appellant.

   [15] Reply, pp 56–59.

2. Annexed to the report were copies of emails between Mr Wall and NCA’s investigator, including an email dated 21 December 2020, in which Mr Wall confirmed that the appellant was employed by Heckenburg and that the respondent was unaware of the appellant’s injury or any claim for compensation made by the appellant.[16] An email from Heckenburg dated 20 January 2021 was also attached, which confirmed that the appellant commenced employment with Heckenburg on 20 June 2019,[17] as well as an “Induction Acknowledgement.”[18] In that document, the appellant indicated that she was employed by Heckenburg, which organisation contracted to the respondent. The document was signed by the appellant and dated 20 June 2019.

   [16] Reply, pp 78–79.

   [17] Reply, pp 70–71.

   [18] Reply, p 63.

3. The respondent requested NCA Consulting to conduct a further investigation. NCA Consulting reported to the respondent on 27 July 2021 and confirmed that the appellant was not employed by the respondent but was employed by Heckenburg who sub-contracted to the respondent.[19]

   [19] Reply, pp 80–82.

4. A statement from Mr Wall dated 20 July 2021,[20] a copy of the sub-contractor’s agreement between Heckenburg and the respondent,[21] and the Induction Acknowledgement were annexed to the investigation report. Mr Wall confirmed that he had been the General Manager of the respondent for a period of three and a half years. He indicated that he had never met the appellant, although she had sent text messages and emails to the respondent seeking work. He confirmed that the appellant had never been employed by the respondent and that the respondent was not aware of the appellant’s compensation claim until the respondent received cheques from icare for payment in respect of the appellant.

   [20] Reply, pp 83–84.

   [21] Reply, pp 85–92.

5. Mr Wall said that the respondent required its sub-contractors to provide tax invoices identifying which employee of the sub-contractor performed each job.

6. The sub-contractor’s agreement included a statement that Heckenburg had in place, and would continue to hold, a workers compensation policy of insurance, and had paid all payroll tax for, and remuneration to its employees in respect of work performed for the respondent.[22] The agreement included the terms and conditions of the contract between the respondent and Heckenburg and was signed by a representative of both parties. The agreement was dated 27 November 2018.

   [22] Reply, p 85.

7. Mr Wall subsequently provided a copy of a text message he had received from the appellant in 2019.[23] The message read:

   [23] AALD dated 9 September 2021, p 8.

   “Hi there, I do not know your

   name, you do in Nova Security. I
   want to ask you for favour. From
   next week can you send me any
   shifts for Sunday to Friday. I am
   available on those days 24/7. If
   its possible I want to work
   directly for Nova. The reason for
   that is that your subcontractor
   not offering to me shifts, one or
   two shift per week, 10 hours
   approximately per week. I feel
   they placing me at last minute
   on the shift which they cannot
   cover with their favour staff. So
   from next week I am available
   24/7 for Sunday to Friday. On
   Friday and Saturday I AM NOT
   AVAILABLE ON EVENING.
   Thank you Celija Cavar/Security

   officer/guard”.

1. Mr Wall confirmed that the respondent did not offer the appellant employment.

Certificates of capacity

1. A certificate of capacity completed by Dr Savio Irani-Lewis, general practitioner, dated 8 July 2021 was annexed to the Application to Resolve a Dispute (ARD).[24] Dr Lewis noted the date of injury as 25 October 2020 and recorded right chest pain, neck pain and pain in both arms. He certified the appellant as having no current work capacity from 8 July 2021 to 8 September 2021.

   [24] ARD, pp 58–60.

2. A further certificate of capacity was completed by Dr Lewis on 8 September 2021.[25] Dr Lewis certified that the appellant had no capacity for work as a result of the pleaded injury from 8 September 2021 to 8 November 2021.

   [25] AALD dated 12 September 2021, pp 23-25.

Dr Paul Teychenné, neurologist

1. The appellant was referred to Dr Teychenné by her treating general practitioner, Dr Lewis. Dr Teychenné reported to Dr Lewis on 13 January 2021.[26] He recorded a history of the injury on 25 October 2020, as well as an earlier injury on 3 October 2020, and the onset of symptoms that followed. Dr Teychenné performed a physical examination, including taking measurements of the degree of flexion and extension, as well as the decrease in rotation, of the lumbar spine, and the degree of decrease of flexion and extension of the neck. He noted the percentage limitation on the appellant’s ability to squat. He tested the appellant’s touch and pain sensations and the degree to which the appellant was restricted by pain when performing straight leg raising.

   [26] Reply, pp 26–30.

2. Dr Teychenné advised that the appellant’s clinical picture was “potentially consistent with an incomplete cervical cord syndrome” or could be consistent with a cervicomedullary syndrome but considered that further examination and investigations were required.

3. Dr Teychenné provided a further report dated 18 April 2021 at the request of icare.[27] He confirmed the history of injuries, the symptoms and the results of his examination recorded in his first report. He further confirmed the possibility of a diagnosis of an incomplete central cervical cord lesion and his view that further investigations were required. He advised that it was not possible to delineate which injuries related to the first incident and which resulted from the pleaded injury, other than to say that he considered that the lumbar symptoms appeared to result from the prior injury and the cervical condition resulted from the injury on 25 October 2020.

   [27] Reply, pp 31–34.

Dr Ross Mellick, neurologist

1. Dr Ross Mellick was asked to examine the appellant and provide a report on behalf of icare. He reported on 1 April 2021.[28]

   [28] Reply, pp 35–40.

2. Dr Mellick took a history of both the injury on 3 October 2020, in which the appellant injured her back, and the injury on 25 October 2020, which involved her right shoulder, right breast and neck. He recorded his findings on examination and noted that there were no available radiological investigations. He pointed to Dr Teychenné’s consideration of a diagnosis of an incomplete cervical cord syndrome, which he said was not actually diagnosed by Dr Teychenné. Dr Mellick said that he disagreed with such a suggestion as there was no information recorded by Dr Teychenné which would support that diagnosis and his own examination of the appellant did not show any organic features of involvement of the spinal cord.

3. Dr Mellick considered that the appellant’s presentation was unusual, not supported by any objective findings, and inconsistent. He concluded that he could not arrive at an organically based diagnosis and there was no objective evidence of any physical abnormalities. He recommended investigations by way of CT scans and MRI scans as a precautionary measure. He was of the opinion that the appellant’s main symptoms were psychologically based, were the impediment to the appellant returning to work, and should be assessed by an appropriate specialist. He said that there was no requirement for neurological treatment, other than to undergo the recommended investigations as a cautionary measure.

4. Dr Mellick considered that the appellant’s employment was a substantial contributing factor to the injury with the respondent. He concluded that, as the appellant’s condition was not due to an organic neurological cause, he could not assess the appellant in respect of any whole person impairment.

THE MEMBER’S REASONS

1. In her statement of reasons, the Member noted that the central issue for determination was whether the appellant was employed by the respondent or by a sub-contractor of the respondent, Heckenburg.

2. The Member considered the respondent’s application to be legally represented in accordance with s 48(4) of the 2020 Act, which precludes a respondent from being legally represented if the injured worker is self-represented, unless leave is granted to the respondent by the Commission. The Member said that the appellant did not respond to the respondent’s application. The Member noted the circumstances contained in s 48(4) in which she could allow the respondent to be represented when the appellant was not. She determined that if the respondent was legally represented, it would allow the matter to be dealt with more efficiently. The Member also reasoned that the appellant had made allegations against staff of the respondent’s insurer in relation to their conduct, and in such circumstances it was more appropriate that the respondent be represented by a legal practitioner. The Member therefore granted leave to the respondent to be legally represented.

3. The Member referred to the appellant’s statement evidence as to the employment arrangements in place between her and her putative employer, the respondent, as well as various other security organisations for which the appellant undertook casual employment. The Member noted that the appellant asserted that the document prepared by Heckenburg dated 19 October 2021 was a forgery, that Heckenburg had “falcificated/duplicated and abused” her security licence and that the report of Dr Mellick and the supplementary report of Dr Teychenné were also fabrications.

4. The Member summarised the appellant’s evidence as to the occurrence and circumstances of the injury. The Member considered that correspondence attached to the AALD dated 17 September 2021 from the appellant to Centrelink was not relevant to these proceedings. The Member remarked that the appellant’s AALDs dated 1 September 2021, 7 September 2021, 14 September 2021 and 24 September 2021 did not attach any evidence. The Member summarised the contents of the two AALDs dated 20 September 2021 and the AALD dated 18 October 2021.

5. The Member transcribed the substance of the various text messages provided by the appellant, commenting that some of the messages required the appellant to “sign on under Nova.” The Member reproduced the entire contents of the message dated 20 October 2020.

6. The Member reviewed the evidence relied upon by the respondent, which was attached to its reply, and in the respondent’s AALD dated 9 September 2021. She noted that the appellant had complied with a notice to produce her bank records issued by the respondent. She also summarised the various notices issued by the respondent pursuant to s 78 of the 1998 Act in which the bases for declining the appellant’s claims were set out, and noted the complaint raised by the appellant in correspondence dated 9 July 2021 to icare.

7. The Member reviewed the medical evidence filed in the proceedings and summarised the submissions made by the parties. She said that, because the appellant was self-represented, all of the documents relied upon by the appellant were admitted into evidence.

8. The Member turned to the question of whether the appellant was a worker employed by the respondent. She observed that the appellant bore the onus of proving that to be the case.

9. The Member referred to the documents relied upon by the respondent in its reply, which she said showed that:

   (a)    Heckenburg held a security licence and employed workers;

   (b)    Heckenburg had entered into a contract with the respondent on 27 November 2018 to supply security guards to the respondent, and

   (c)    the contractual conditions were that Heckenburg was required to provide the staff details to the respondent and that Heckenburg agreed that it would be responsible for the staff it employed.

10. The Member noted that, on the same date that the contract was signed, Heckenburg completed a subcontractor’s statement in accordance with s 175B of the 1987 Act. The Member referred to the appellant’s assertion that the subcontractor’s statement was evidence of criminal conduct on the part of Heckenburg because that organisation was not her employer in November 2018. The Member observed that the appellant was not referred to in the statement and the document, which was completed in respect of all workers employed by Heckenburg at that date. On the basis of that fact, the Member concluded that that evidence did not support the appellant’s assertion that Heckenburg engaged in criminal conduct. The Member said that the document provided proof to the companies with which Heckenburg had contracted that it held workers compensation insurance, had paid all payroll tax and had renumerated its employees. The Member considered that the document established that Heckenburg had in place a subcontract arrangement with the respondent and that Heckenburg had fulfilled its legal obligations to its employees.

11. The Member observed that the appellant underwent an induction program on 20 June 2019 in accordance with the contractual arrangements between the respondent and Heckenburg and the appellant confirmed in the document of that date that she was employed by Heckenburg. The Member noted that the appellant’s employment with Heckenburg was further confirmed by the tax invoices from Heckenburg to the respondent, which bore the appellant’s name, including an invoice issued on the day she was injured. The Member concluded that, at the time the appellant signed the document dated 20 June 2019, she was employed by Heckenburg and was aware that Heckenburg was her employer.

12. The Member referred to the text messages produced by the respondent in which the appellant sought work directly with the respondent as she wanted more shifts per week. The Member considered that those messages indicated that the appellant was aware that she was not employed by the respondent. The Member also referred to the text messages transcribed by the appellant in which it was emphasised that she was required to say that she was reporting to work for the respondent. The Member concluded that, if the appellant was in fact employed by the respondent, there would have been no need to remind the appellant that she was required to sign on as working for the respondent.

13. The Member reproduced cl 1 of Sch 1 to the 1998 Act, which provision dealt with the notion of “workers lent on hire.” The Member said that this clause confirms that, in circumstances where the appellant was employed by Heckenburg to provide services to the respondent, Heckenburg continued to be her employer. The Member observed that the fact that the appellant was paid in cash was immaterial to the issue and noted that the appellant was not a “deemed worker” within the meaning of the 1998 Act. She thought it puzzling that the appellant had not made a claim for compensation against Heckenburg.

14. The Member concluded that the appellant was not employed by the respondent and thus was not entitled to compensation from the respondent. She said that she was not required therefore to consider the claims for weekly payments, lump sums pursuant to s 66, s 67 and work injury damages but indicated why those claims were not payable in any event.

15. The Certificate of Determination issued on 11 November 2021 records:

    “The Commission determines:

    1.     Award for the respondent.”

GROUNDS OF APPEAL

1. The appellant brings the following grounds of appeal, asserting error on the part of the Member by:

   (a)    Ground One: failing to provide procedural fairness to the appellant;

   (b)    Ground Two: failing to award the appellant weekly compensation;

   (c)    Ground Three: wrongly calculating the appellant’s pre-injury average weekly earnings;

   (d)    Ground Four: failing to award the appellant her treatment expenses pursuant to s 60 of the 1987 Act;

   (e) Ground Five: failing to award the appellant pain and suffering in accordance with s 67 of the 1987 Act;

   (f)    Ground Six: failing to reject the evidence of Dr Teychenné contained in his report dated 18 April 2021;

   (g)    Ground Seven: failing to refer her lump sum claim pursuant to s 66 of the 1987 Act to a medical assessor for assessment, and

   (h)    Ground Eight: failing to find that the appellant was employed by the respondent.

THE LEGISLATION

1. Clause 1 of Sch 1 to the 1998 Act provides:

   “1     Workers lent or on hire

   If the services of a worker are temporarily lent or let on hire to another person (the labour buyer) by the person with whom the worker has entered into a contract of service or a training contract (the labour hirer), the labour hirer is, for the purposes of this Act, taken to continue to be the employer of the worker while the worker is working for the labour buyer.”

2. Section 175B of the 1987 Act relevantly provides:

   “175B Liability of principal contractor for unpaid premiums payable by subcontractor

   (1)     This section applies where—

   (a)a person (the principal contractor) has entered into a contract for the carrying out of work by another person (the subcontractor), and

   (b)employees of that subcontractor are engaged in carrying out the work (the relevant employees), and

   (c)the work is carried out in connection with a business undertaking of the principal contractor and is work that is an aspect of the work of that business undertaking.

   (2)     The principal contractor is liable for the payment of any workers compensation insurance premiums payable by the subcontractor in respect of the work done in connection with the contract during any period of the contract unless the principal contractor has a written statement given by the subcontractor under this section for that period of the contract.

   (3)     …

   (4)     The written statement is a statement comprising the following—

   (a)a statement by the subcontractor that all workers compensation insurance premiums payable by the subcontractor in respect of the work done in connection with the contract during any period of the contract have been paid, accompanied by a copy of any relevant certificate of currency in respect of that insurance,

   (b)…”

SUBMISSIONS

Ground One

Appellant’s submissions

1. The appellant asserts that the Member erred by failing to provide her with procedural fairness in respect of allowing the respondent to be legally represented. The appellant asserts that she was not served with any such application made by the respondent and the respondent did not request her consent to such application.

2. The appellant asserts that she indicated her opposition to the application by email directed to the respondent’s legal representatives and to the Commission.

Respondent’s submissions

1. The respondent submits that the application to be legally represented was made in its submissions dated 9 October 2021, which were served on the appellant. The respondent submits that the appellant had the opportunity to respond to the application but did not. The respondent indicates that it had no record of the appellant raising any opposition to the leave being granted and points out that the Member had no record of any objection to the order either.

2. The respondent asserts that there was no basis to make a finding of a failure to provide procedural fairness.

Consideration

1. The appellant asserts error on the part of the Member by allowing the respondent to be legally represented in these proceedings. The appellant complains that, as a result, she has been denied procedural fairness.

2. The appellant contends that she was not served with any application made by the respondent to be legally represented and that she was not asked whether she consented to any such application, yet further submits that she wrote to the Commission and the respondent indicating her objection. Those submissions are internally inconsistent.

3. The respondent submits that its application, which was made in its opposition to the appeal, was served on the appellant, the appellant replied to the respondent’s submissions, but her submissions were silent in respect of the question of the respondent being legally represented. The Member also indicated that the application had been made and the appellant did not provide a response to the application.[29]

   [29] Reasons, [81].

4. The obligation to provide procedural fairness is concerned with giving a person, whose rights are to be potentially affected, the opportunity to deal with issues arising in the trial. However, a party cannot assert procedural unfairness where the party failed to make proper use of the opportunity provided to be heard.[30]

   [30] Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264 (per Mason P), [37].

5. As Kirby J observed in Allesch v Maunz:[31]

   “Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.”[32]

   [31] [2000] HCA 40 (Allesch).

   [32] Allesch, [38].

6. Justice Gaudron also observed in Coldham; Ex Parte Municipal Officers Association of Australia (citations omitted):[33]

   “procedural fairness requires only that a party be given ‘a reasonable opportunity to present his case’ and not that the tribunal ensure ‘that a party takes the best advantage of the opportunity to which he is entitled’.”[34]

   [33] [1989] HCA 13 (Coldham).

   [34] Coldham, [19].

7. On the evidence, it is clear that the appellant had the opportunity to oppose the respondent’s application and did not avail herself of the opportunity to do so. The appellant cannot therefore assert that the Member failed to provide her with procedural fairness in respect of allowing the respondent to be legally represented. The Member also gave valid reasons as to why it was appropriate for the respondent to be represented.

8. It follows that Ground One of the appeal fails.

Ground Eight

1. It is convenient to consider this ground of appeal before moving to the remaining grounds of appeal.

Appellant’s submissions

1. The appellant asserts that the Member erred in determining that she was not employed by the respondent but was employed by Heckenburg, in circumstances where the appellant was not aware of Heckenburg until 21 July 2021.

2. The appellant submits that the Member erred in the application of cl 1 of Sch 1 to the 1998 Act and s 151C(1) of the 1987 Act. The appellant says that more than 6 months had elapsed since she had given notice of her injury and she was entitled to bring her claim for damages because the respondent had denied her claim. That submission does not address this ground of appeal and it is not necessary for the submission to be addressed.

3. The appellant submits that she never commenced employment with Heckenburg, and NCA Consulting and icare had a “constructive plan” to limit and terminate her claims for compensation. She asserts that the documents produced by NCA Consulting were fabricated, are not relevant to her claim and could not be considered valid evidence upon which to reject her claim.

4. The appellant reiterates that she was never employed by Heckenburg and contends that she commenced employment with the respondent on 1 March 2019 in accordance with a signed contract dated 27 February 2019. The appellant adds that the documents relied upon by NCA Consulting all bear the date of 21 July 2021 and are fabricated.

Respondent’s submissions

1. The respondent submits that s 151C(1) concerns a claim for work injury damages, which the appellant was not entitled to bring because she has not reached the necessary threshold to bring such a claim.

1. The respondent contends that there is no merit to the appellant’s assertion that the documents attached to the NCA Consulting report were fabricated.

Consideration

1. The question of whether the appellant was employed by the respondent or by some other entity is a question of fact to be determined on the basis of the available evidence and the inferences that can be drawn from that evidence. Findings of fact made by a primary decision maker will not normally be disturbed if they have rational support in the evidence.[35]

   [35] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.

2. A useful overview of the principles to be applied in relation to an appeal from a primary judge’s findings of fact was contained in the judgment of Basten JA (with Allsop P agreeing) in Najdovski v Crnojlovic[36] as follows (citations omitted):

   “Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range. It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle.”

   [36] [2008] NSWCA 175, [22].

3. Section 352(1) of the 1998 Act allows for an appeal against a decision of a non-presidential member to a Presidential member. Section 352(5) of the 1998 Act limits that right of appeal to the establishment of error of fact, law or discretion. Consequently, the application of the above principles needs to be considered in the context of the Commission and its statutory power to intervene.

4. In determining whether the Member has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[37] -  are relevant and have been consistently applied in the Commission. Those principles were recited by Deputy President Roche in Raulston v Toll Pty Ltd[38] as follows:

   “(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.

   (b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.

   (c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.

   The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):

   ‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”

   [37] (1966) 39 ALJR 505.

   [38] [2011] NSWWCCPD 25, [19]–[20].

5. Applying the above principles, the appellant must show that the Member overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Member is so preponderant that it establishes that the Member’s decision is wrong.

6. The evidence relied upon by the appellant included numerous text messages sent by “Noah” to the appellant about the arrangements for attending each shift. Relevantly, those arrangements included a reminder to sign on for the shift by indicating that she was working for the respondent. The appellant otherwise relied upon her own testimony that she had not been aware of Heckenburg until 21 July 2021 and her assertions that the documents relied upon by the respondent were fabricated.

7. The Member considered the appellant’s submissions about the authenticity of the documentary evidence and the probative value of the evidence provided by the respondent.[39] She also referred to the appellant’s reliance on the text messages, which reminded the recipient to sign on as working for the respondent. The Member explained that such a reminder would probably not have been necessary if in fact the worker signing on for the shift was actually employed by the respondent. The Member pointed to the text message sent by the appellant to the respondent requesting work with the respondent because the “subcontractor” was not giving her enough shifts. The Member also pointed to the Induction Agreement, which referred to Heckenburg as the employer and was signed by the appellant. She reasoned that those documents indicated that the appellant was aware that she was employed by Heckenburg and that she had been aware of Heckenburg’s existence prior to 21 July 2021. The Member referred to the tax invoices submitted by Heckenburg to the respondent in respect of work performed by the appellant (and other workers).

   [39] Reasons, [88]–[90].

8. On the basis of that evidence, the Member concluded that the evidence relied on by the respondent was more persuasive than that of the appellant. There was other evidence that indicated that it was more probable that the appellant was employed by Heckenburg. The appellant’s records from the Arab Bank Australia Limited showed four direct deposits by “HQ Group” of varying amounts. Given that Heckenburg’s correct legal name was Heckenburg Group Pty Ltd t/as Heckenburg Protection Agency, it is not difficult to infer that those payments were more likely to have been made by Heckenburg than by the respondent.

9. It follows that the Member gave due consideration to the evidence relied upon and the submissions by the appellant and provided reasons for her conclusion that she found the respondent’s evidence persuasive. The Member determined the matter in a manner consistent with cl 1 of Sch 1 to the 1998 Act. The Member did not overlook material facts, or give undue or too little weight to the evidence, or arrive at her conclusion when an opposite inference was so preponderant that the Member’s decision must be wrong. The Member was entitled to conclude, on the basis of the evidence before her, that the appellant was not employed by the respondent.

10. The appellant has not identified the requisite error on the part of the Member and this ground of appeal fails.

The remaining grounds of appeal

1. The remaining grounds of appeal relate to the appellant’s claims for weekly compensation (including the calculation of her pre-injury average weekly earnings), treatment expenses, s 66 lump sums, pain and suffering pursuant to the former s 67 of the 1987 Act and work injury damages. The Member determined that the respondent was not liable to pay the appellant compensation of any type because the respondent did not employ the appellant. If that finding was correct, then the appellant is not entitled to claim compensation from the respondent.

2. The Member noted that, given her finding in relation to the liability issue, she was not required to determine the appellant’s claim for those entitlements but proceeded to explain why those claims were not payable.

3. The Member observed that:

   (a)    in respect of the claim for weekly payments, there were references in the evidence to other employers and potential employment which indicated some capacity for work. The appellant also suffered from symptoms referrable to an earlier injury and there was insufficient evidence to determine the effects of the later injury or to determine the extent of the appellant’s incapacity;

   (b)    the Workers Compensation Guidelines require a claim pursuant to s 66 to be accompanied by an assessment by an assessor qualified to make such an assessment, and neither Dr Ross Mellick nor Dr Teychenné made an assessment of the appellant’s permanent impairment. On that basis the appellant was not entitled to compensation pursuant to s 66;

   (c) section 67 of the 1987 Act was repealed form 19 June 2012, except for exempt workers, which did not include the appellant, and

   (d)    in respect of work injury damages, the appellant was not entitled to make such a claim because she had not been paid compensation for at least 15% whole person impairment.

4. The appellant submits that those conclusions are wrong. She submits that the Member erred because:

   (a)    a work capacity decision will not change until the Commission determines the dispute;

   (b)    the calculation of her pre-injury average weekly earnings was wrong;

   (c)    the Member was required to make an order under s 60 of the 1987 Act;

   (d) s 67 of the 1987 Act has not been repealed;

   (e)    the report of Dr Teychenné dated 19 April 2021 is a fake and was altered, and

   (f)    she was induced to enter into an agreement recorded in the terms of settlement.

5. The appellant submits that much of the evidence is fabricated, the respondent and icare have breached their duty of care, and criminal offences have occurred.

6. The respondent disputes that:

   (a)    there is any basis for asserting that the Member was in error in respect of her determination that weekly payments were not payable;

   (b)    there was any error in the calculation of the pre-injury average weekly earnings;

   (c)    a claim for s 60 expenses was pleaded, and

   (d)    there was any error in the Member’s reasons.

7. The respondent maintains that s 67 has been repealed and the appellant had no entitlement to a lump sum pursuant to s 66 because the medical experts had not made an assessment of the appellant’s whole person impairment. The respondent adds that it has no knowledge of the appellant being induced into entering any agreement and that there is no merit to the appellant’s claim that the evidence was fabricated or false.

CONSIDERATION

1. Grounds One and Eight of this appeal have not succeeded and the finding that the appellant was not employed by the respondent stands. As a consequence, the appellant has no entitlement to claim compensation of any kind from the respondent within the meaning of the 1987 and 1998 Acts. On that basis, the remaining grounds of appeal cannot succeed, and the Member’s Certificate of Determination is confirmed.

DECISION

1. The Member’s Certificate of Determination dated 11 November 2021 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

3 August 2022