Greenaway v Prestige Helicopters Pty Ltd
[2020] WADC 159
•11 DECEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GREENAWAY -v- PRESTIGE HELICOPTERS PTY LTD [2020] WADC 159
CORAM: FLYNN DCJ
HEARD: 25 SEPTEMBER 2020
DELIVERED : 11 DECEMBER 2020
FILE NO/S: APP 9 of 2020
BETWEEN: SHARYN GREENAWAY
Appellant
AND
PRESTIGE HELICOPTERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR RUTHERFORD
File Number : A39036
Catchwords:
Workers' compensation - Leave to appeal - Whether inferences drawn by arbitrator were reasonably open - Adequacy of reasons - Turns on own facts - Workers' Compensation and Injury Management Act 1981 (WA) interaction of s 10A 'working director' with s 175 'deemed employers'
Legislation:
Civil Aviation Act 1988 (Cth), pt III, div 2
Workers' Compensation and Injury Management Act 1981 (WA), s 3, s 3(a), s 4, s 4(2)(a), s 5, s 7, s 7(1), s 8, s 9, s 10A, s 11A(2), s 14(2a), s 18, s 72E, s 160, s 160A, s 160(2a), s 160(3), s 175, s 213(4), s 247(5), s 247(6), s 247(7)
Result:
Leave to appeal is refused except in relation to ground of appeal number 5 of the Amended Appeal Notice.
Appeal dismissed.
Representation:
Counsel:
| Appellant | : | Mr G Droppert SC |
| Respondent | : | Mr D M G Burton |
Solicitors:
| Appellant | : | WA Legal Pty Ltd |
| Respondent | : | McCabe Curwood |
Case(s) referred to in decision(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105
CFC Consolidated Pty Ltd v Armet [2020] WADC 85
Greenaway v Prestige Helicopters Pty Ltd (Unreported, Workers' Compensation Arbitration Service, A39036, 10 January 2020)
Hope v Bathurst City Council [1980] HCA 16
Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262
Leighton Contractors Pty Ltd v Panizza (Unreported, WASC, Library No 950562, 19 October 1995)
Luckins (Receiver & Manager of Australian Trailways Pty Ltd) v Highway Motel (Carnarvon) Pty Ltd [1975] HCA 50
Mohammadi v Bethune [2018] WASCA 98
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Thiel v Federal Commission of Taxation (1990) 171 CLR 338
Velez Pty Ltd v Tudor [2011] WASCA 218
FLYNN DCJ:
Mr Timothy Greenaway died when the crop dusting aircraft that he was piloting crashed on 14 September 2010. He is survived by his wife, the appellant, and their two children. The Workers' Compensation and Injury Management Act 1981 (WA) (the Act) provides that if 'an injury to a worker occurs and the worker dies, the employer is liable to pay compensation' in accordance with the Act.[1] The Act also provides that the dependent family of a deceased worker, including a partner and children, are entitled to compensation as prescribed and the claim is to be made on the worker's employer.[2] The appellant and the children made a claim for compensation on the respondent (Prestige) on the basis that Mr Greenaway's death arose out of his employment by Prestige.[3]
[1] Section 18. Except where stated otherwise, each statutory reference in this judgment is to a provision of the Act.
[2] Section 72E.
[3] The claim is subject to the transitional provisions in Sch 8, div 2 of the Act. Certain provisions of the Act as in force at 30 June 2018 continue to apply to the claim. Those provisions are not relevant to the disposition of this appeal.
Prestige denied liability. Prestige contended that it entered into a contract with Auspray Pty Ltd (Auspray), a company of which Mr Greenaway was the sole director and only shareholder, for Auspray to supply the services of Mr Greenaway to Prestige on 14 September 2010. Prestige maintained that no contract of employment or any contract was made with Mr Greenaway. Consequently, Prestige maintained that Mr Greenaway was not a 'worker' of Prestige as defined in s 5 of the Act.
The appellant applied for the claim to be determined by an arbitrator. An arbitration proceeded in the manner provided by the Act.[4] On 10 January 2020 Arbitrator Rutherford published reasons[5] for dismissing the appellant's application for compensation (the Arbitrator's Reasons).
[4] Part XI, div 4 of the Act.
[5] Greenaway v Prestige Helicopters Pty Ltd (Unreported, Workers' Compensation Arbitration Service, A39036, 10 January 2020) (Arbitrator Rutherford).
By an amended appeal notice of 11 May 2020 (the Amended Appeal Notice), the appellant alleges errors of law in the Arbitrator's Reasons. The Arbitrator's Reasons, relevant to this appeal, identify and determine two issues.[6]
[6] Arbitrator's Reasons [18].
First, the arbitrator determined that Prestige entered into a contract with Auspray and not with Mr Greenaway (the Contract Issue). (I have used the term 'Prestige Contract' below to refer to a contract between Prestige and Auspray or between Prestige and Mr Greenaway.)
Section 5(1) of the Act contains a definition of 'worker' that, relevantly, includes two limbs. Each limb requires a contract between the 'worker' and an 'employer'. The effect of the first limb is that a 'worker' is a person who has entered into a contract of service (ie an employment contract) with an employer. The effect of the second limb, often referred to as the 'extended definition', is that a worker includes a person who is engaged as an independent contractor by the employer and whose remuneration is, in substance, for the worker's manual labour or services.[7]
[7] Section 5(1)(b).
The appellant's claim for compensation under the Act is made on the basis that Mr Greenaway was a 'worker' by reason of the extended definition. Mr Greenaway was an independent contractor, engaged by Prestige, and remunerated, in substance, for his piloting services. On the arbitrator's finding that Mr Greenaway was not engaged by Prestige, he could not be a 'worker' as defined by the Act.
Relevant to the arbitrator's determination on the Contract Issue, the arbitrator rejected the appellant's submission that Mr Greenaway was a party to a contract with Prestige because the evidence compelled a finding that Auspray ceased conducting business before the making of the Prestige Contract.[8] The appellant contends that the Arbitrator erred in law in drawing an inference that was not reasonably open, namely, that Auspray was conducting a business at the time of the making of the Prestige Contract (Auspray Conducting Business Finding).[9]
[8] Arbitrator's Reasons [159] - [160].
[9] Amended Appeal Notice, Ground 6.
After finding that Auspray had not ceased operating business at the time of the making of the Prestige Contract, the arbitrator evaluated evidence on the identity of the parties to the Prestige Contract. The arbitrator concluded that the parties to the contract were Prestige and Auspray on terms that included Auspray supplying Prestige with the piloting services of Mr Greenaway.[10] The appellant contends that the Arbitrator erred in law in drawing an inference that was not reasonably open, namely, that Auspray was a party to the Prestige Contract (Parties to Contract Finding).[11]
[10] Arbitrator's Reasons [161] - [172].
[11] Amended Appeal Notice, Ground 6.
The second relevant issue determined by the arbitrator was that s 175 of the Act, providing for the deemed employment by a principal (ie Prestige) of a worker (ie Mr Greenaway) employed by a contractor (ie Auspray), did not apply to the appellant's claim for compensation (the Deemed Employment Issue). The arbitrator found that s 10A of the Act on 'working directors' precluded Mr Greenaway from being a 'worker' for the purposes of s 175. The appellant contends that the arbitrator erred in law in this construction of s 10A of the Act (s 10A Interpretation Issue).[12]
[12] Amended Appeal Notice, Ground 5.
The appellant also contends that the Arbitrator's Reasons on aspects of each of the Contract Issue and the Deemed Employment Issue are deficient so as to result in contraventions of the statutory and common law obligations with respect to the giving of adequate reasons (Adequate Reasons Error).[13]
[13] Amended Appeal Notice, Grounds 1, 2, 3 and 4.
A party may, with leave, appeal against a decision of an arbitrator.[14] Leave will not be granted unless a question of law is involved.[15] In CFC Consolidated Pty Ltd v Armet,[16] Wallace DCJ summarised the principles on the meaning of the phrase, 'question of law'. I gratefully adopt that summary:
[14] Section 247(1).
[15] Section 247(2).
[16] CFC Consolidated Pty Ltd v Armet [2020] WADC 85 [31] - [35] (Wallace DCJ).
31An appeal will involve a question of law if the arbitrator has either made an error of law or an error of mixed law and fact. A mere error of fact alone is insufficient.
32A misstatement of principle or technical error which is not material to the decision in the sense that it contributes to it, does not constitute an error of law.
33Evidentiary matters may raise questions of law; for example, if an arbitrator makes a finding of fact in the absence of any supporting evidence.
34However, an arbitrator does not make an error of law merely because:
(a)they find a fact wrongly or on a doubtful basis;
(b)because they prefer one version of the evidence or one set of inferences over another version of the evidence or set of inferences; or
(c)an inference drawn is as a result of illogical reasoning, as long as it was reasonably open to be made.
35It is for the court to properly analyse each ground of appeal to ensure that it involves a question of law, giving careful consideration to its true nature.
(footnotes omitted)
The determination of the s 10A Interpretation Issue requires a finding on the correct interpretation of the Act. The proper construction of a statute is a question of law. However, as discussed below, the appeal will not succeed unless a review of the evidence before the arbitrator, in light of the correct construction of the Act, would result in a different decision to that of the arbitrator.
Each of the appellant's other allegations of error by the arbitrator,[17] if made good, would also raise a question of law. In that event, the appeal would proceed by way of a review of the arbitrator's decision.[18]
[17] Auspray Conducting Business Finding; Parties to Contract Finding; and Adequate Reasons Error.
[18] Section 247(5).
A review involves reconsideration of the case by the court upon the evidence before the arbitrator.[19] However, the court does not start with a 'blank page'; unless the review of the evidence persuades 'the judge that the order being reviewed should be varied, discharged, or otherwise disturbed, it would stand'.[20] Upon a review, the court has the power to make the orders provided for in the Act, including an order to affirm, vary or quash the arbitrator's decision and make any decision that should have been made in the first instance.[21]
[19] Section 247(5). Unless leave is granted for the admission of fresh or additional evidence: s 247(6).
[20] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20] - [25] (Wheeler JA). See also Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105 [24] (Gething DCJ): '[I]f some question of law is "involved", the whole decision appealed from is open to review and not merely the question of law. The review is to be a "real review". It is not limited to pure questions of law. Correction of errors of law is the court's "principal, but not only, task". However, the appellant must show a "proper basis" for disturbing the decision such as error of "fact, law or logic". Unless the "review" persuades the court that the Arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand'.
[21] Section 247(7).
Upon the appellant's application for leave, it has been convenient to determine both the question of leave and, if satisfied as to a question of law being involved, any necessary review.[22]
[22] See BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [14].
Auspray Conducting Business Finding
The arbitrator made findings of fact concerning Auspray that are not challenged by the appellant:
•Auspray was the vehicle for the conduct of an aircraft engineering and aerial spraying business that operated in Geraldton between 2005 and 2009.
•During this period (2005 - 2009), the directors and shareholders of Auspray were Mr Greenaway and the appellant. They lived together. Mr Greenaway was the pilot and manager of the business. The appellant attended to administration of the business, including rendering of accounts. The company owned assets, including aircraft, and employed staff.
•The business failed. In 2008, Mr Greenaway and the appellant agreed to close the business operated by Auspray.
•By the commencement of 2010, the assets of the business had been sold. An 'aircraft operating certificate' (AOC) issued by the regulator of civil aviation and held by Auspray before 2010 had been relinquished.[23] An insurance policy to cover the liability of Auspray for workers' compensation had been cancelled.
•In January 2010, Mr Greenaway and the appellant ceased to live together. At around the same time the appellant ceased to become a director and a shareholder of Auspray. As a result, Mr Greenaway became the sole director and the only shareholder of Auspray.
•Between 1 September 2009 and 6 August 2010, Mr Greenaway drafted and delivered a number of invoices in the name of Auspray for 'aerial' or 'piloting' work undertaken by him. Those invoices were to Midwest Aviation (an entity associated with Prestige) and to entities associated with Mr Ross Wickens and Mr Alan Griffith (the Wickens/Griffith Transactions). Payments made on these Auspray invoices were paid into the personal bank account of Mr Greenaway and not into the bank account of Auspray.[24]
[23] On the significance of an AOC see Civil Aviation Act 1988 (Cth), pt III, div 2.
[24] Arbitrator's Reasons [159(d)]. Regarding payments by Midwest Aerial AG Pty Ltd, see [147].
The arbitrator made findings of fact on the circumstances of the making and administration of the Prestige Contract that are not challenged by the appellant:
•Mr Tom Bradley on behalf of Prestige, negotiated the Prestige Contract with Mr Greenaway on an unknown date before 14 September 2010.
•The Prestige Contract, negotiated between Mr Bradley and Mr Greenway, was oral. Mr Bradley died before the arbitration commenced. Consequently, nobody was able to give direct evidence as to the content of the Prestige Contract.
•A farmer had requested crop dusting services be supplied by Prestige. Mr Bradley coordinated the supply of those services by Prestige, to be delivered on 14 September 2010.
•Mr Bradley arranged for Mr Greenaway to pilot an aircraft owned by Prestige on 14 September 2010. Prestige held an AOC in relation to the aircraft.
•In May 2010 and August 2010 Mr Bradley on behalf of Prestige negotiated with Mr Greenway in relation to two transactions that were similar to the transaction the subject of Prestige Contract. Mr Greenaway drafted and delivered invoices in the name of Auspray for 'aerial application' work done for Prestige on 3 May 2010 ($464) and 30 August 2010 ($1,848) (the Two Prestige Invoices).
•Payments on the Two Prestige Invoices were made by Ms Anne Bradley on behalf of Prestige into the personal bank account of Mr Greenaway and not into the bank account of Auspray. Ms Bradley, the wife of Mr Bradley, attended to administration tasks associated with the business of Prestige (and associated entities).
•Payment for services performed by Mr Greenaway on the day of his death was made by Prestige to the estate of Mr Greenaway and not into the bank account of Auspray.
The Arbitrator's Reasons on the Contract Issue explicitly note that competing inferences are open on the primary facts outlined above.[25] One inference is that Auspray ceased all operations before 2010, supporting an inference, urged by the appellant, that the parties to the Prestige Contract were Prestige and Mr Greenaway. An alternative inference was that the business of Auspray changed upon Mr Greenway assuming control of the company at the start of 2010, leaving open the possibility that the parties to the Prestige Contract were Prestige and Auspray.
[25] Arbitrator's Reasons [52].
The arbitrator draws an inference that Auspray continued to carry on business in 2010, albeit in a 'sporadic' manner compared to previous years.[26] The Arbitrator's Reasons suggest that two factors are of particular significance to the arbitrator in reaching this conclusion. First, in contrast to earlier years, Mr Greenaway alone controlled Auspray in 2010.[27] Secondly, before the making of the Prestige Contract, Auspray was party to a number of transactions in 2010. There were the transactions the subject of the Two Prestige Invoices as well as the Wickens/Griffiths Transactions.[28]
[26] Arbitrator's Reasons [159] - [160].
[27] Arbitrator's Reasons [159(g)].
[28] Arbitrator's Reasons [112] (Two Prestige Invoices), [159(h)], [165] (Wickens/Griffith Transactions).
The appellant states that a 'central aspect' of the Arbitrator's Reasons was a finding that Auspray was 'carrying on business' and accordingly was capable of contracting with Prestige.[29]
[29] Appellant's Written Appeal Submissions of 11 September 2020 (Appellant's Written Submissions) par 59.
The appellant contends that the only reasonable finding open to the arbitrator on the evidence was that Auspray was not carrying on business at the time of the making of the Prestige Contract.[30] The appellant submits that evidence was lacking of the usual legal indicia of 'carrying on business', including repetitive activity and 'holding out' to third parties. The appellant places emphasis upon the 'uncontradicted evidence' that Auspray had no records to substantiate any trading activity.[31] The appellant submits that the arbitrator failed to place any or proper weight on the fact that, before 2010, Auspray relinquished an AOC that it once held.[32] The appellant submits that the arbitrator placed weight on evidence of the contents of invoices bearing the name 'Auspray' in the face of authority suggesting no weight should be applied to those invoices.[33] The appellant contends that the arbitrator was distracted by irrelevant evidence of Auspray's self‑characterisation of its legal relationships in the face of contrary evidence of the 'totality of the circumstances'.
[30] Amended Appeal Notice, Ground 6; Appellant's Written Submissions pars 66 - 108.
[31] Appellant's Written Submissions pars 75 - 82.
[32] Amended Appeal Notice, Grounds 4, 6; Appellant's Written Submissions pars 95 - 102.
[33] Leighton Contractors Pty Ltd v Panizza (Unreported, WASC, Library No 950562, 19 October 1995).
For the reasons that follow, the appellant has not demonstrated that the arbitrator drew an inference that was not reasonably open.
The appellant's submissions misapprehend the inquiry of the arbitrator insofar as the submissions suggest that the arbitrator investigated whether Auspray was 'carrying on a business' that resembled Auspray's operations before 2010. The arbitrator assumed that the business of Auspray changed from 2008. The concern of the arbitrator was whether, as at the time of the making of the Prestige Contract, Auspray had ceased all operations (as alleged by the appellant) or was operating to the limited extent of hiring out the piloting services of Mr Greenaway to third parties.
The arbitrator correctly observed that, ultimately, whether Auspray is carrying on a business depends on 'findings of fact in the circumstances of the case'.[34] Accordingly, the appellant's submissions on authorities dealing with the meaning of 'carrying on business' in particular statutory contexts were, for good reason, accorded limited weight.[35]
[34] Arbitrator's Reasons [158].
[35] Thiel v Federal Commission of Taxation (1990) 171 CLR 338, 6 (On Australian income tax law]; Hope v Bathurst City Council [1980] HCA 16 [14] (On local government law in NSW); Luckins (Receiver & Manager of Australian Trailways Pty Ltd) v Highway Motel (Carnarvon) Pty Ltd [1975] HCA 50 (On company law).
The arbitrator's conclusion was that 'Auspray was conducting a business during 2010'.[36] The Arbitrator concluded that the business of Auspray had changed between 2008 and 2010 in a manner that was not inconsistent with Auspray being a party to the Prestige Contract.[37] The conclusion was supported in the Arbitrator's Reasons (as noted above) by findings of fact on Mr Greenaway's control of Auspray in 2010[38] and Auspray's other activities in 2010.[39] It was a conclusion that was reasonably open upon those findings of fact. Moreover, it was a conclusion that was reached after explicitly addressing issues raised by the appellant.
[36] Arbitrator's Reasons [160], [170].
[37] Arbitrator's Reasons [170].
[38] Arbitrator's Reasons [159(g)].
[39] Arbitrator's Reasons [112] (Two Prestige Invoices), [159(h)], [165] (Wickens/Griffith Transactions).
Some of the factors relied upon by the appellant in the arbitration are acknowledged and accorded little weight by the arbitrator:
•The absence of tax returns and other business records is discussed and found not to be significant in the context of the limited operations of Auspray in 2010.[40]
•The possibility of invoices in the name of Auspray being used by Mr Greenaway for administrative purposes and without him intending to create a legal relationship on behalf of Auspray is discussed and found to be implausible.[41] The arbitrator noted the appellant's reliance upon Leighton Contractors Pty Ltd v Panizza and accurately records that the case stands for the proposition, inter alia, that the content of an invoice is not determinative of the legal relationship between entities named on the invoice.[42]
•The fact that Auspray relinquished an AOC before 2010 is discussed and found not to be significant to the question of whether Auspray's operations in 2010 included supplying Mr Greenaway's services to third parties who themselves maintained an AOC.[43]
[40] Arbitrator's Reasons [159(b)].
[41] Arbitrator's Reasons [159(e)].
[42] Arbitrator's Reasons [163].
[43] Arbitrator's Reasons [167] - [169].
Other factors relied upon by the appellant are considered and the weight of those factors is acknowledged:
•The relatively few number of transactions involving Auspray in 2010 is noted.[44]
•The fact that payment on Auspray invoices was made to the personal bank account of Mr Greenaway and not to the bank account of Auspray is detailed and acknowledged.[45]
[44] Arbitrator's Reasons [159(c)].
[45] Arbitrator's Reasons [159(d)].
In concluding that Auspray's operations in 2010 were not inconsistent with it being a party to the Prestige Contract, the arbitrator preferred to draw an inference contended by Prestige to an inference contended by the appellant. The appellant has not demonstrated that the only reasonable inference to be drawn was that Auspray's operations were inconsistent with it being a party to the Prestige Contract. No question of law arises.
Parties to Contract Finding
The arbitrator concluded that the parties to the Prestige Contract were Prestige and Auspray.[46] The appellant submits that, on the totality of evidence, the only finding reasonably open to the Arbitrator was that the parties to the Prestige Contract were Prestige and Mr Greenaway.
[46] Arbitrator's Reasons [161] - [172].
Five matters appeared to be of significance to the arbitrator in reaching a conclusion on the identity of the parties to the Prestige Contract.[47]
[47] Arbitrator's Reasons [160] - [170].
First (as noted above), the arbitrator concluded that Auspray's operations in 2010 were not inconsistent with it being a party to the Prestige Contract.[48]
[48] Arbitrator's Reasons [160].
Secondly, the arbitrator notes that competing inferences may be drawn from the Two Prestige Invoices.[49] The fact that the Two Prestige Invoices were drawn by Mr Greenaway in the name of Auspray and accepted by Prestige as 'invoices from Auspray' suggests a contract between Prestige and Auspray. The fact that payment on the invoices was made to Mr Greenaway's personal bank account, albeit not to the knowledge of Prestige,[50] suggests a contract between Prestige and Mr Greenaway.[51] The significance of Leighton Contractors Pty Ltd v Panizza (described above) is noted.
[49] Arbitrator's Reasons [162] - [164].
[50] Arbitrator's Reasons [162]. Ms Bradley did not known that monies were paid to Mr Greenaway's personal bank account.
[51] Arbitrator's Reasons [164].
Thirdly, of significance to the arbitrator is the similarity between the circumstances surrounding the transaction underlying the Wickens/Griffith Transactions and the circumstances surrounding the making of the Prestige Contract.[52] The Wickens/Griffith Transactions were evidenced by invoices in the name of Auspray and were held to result in contracts between Auspray and third parties associated with Mr Wickens and Mr Griffith for Auspray to supply the services of Mr Greenaway. Of significance to the arbitrator is the inherent likelihood of the Prestige Contract being similarly structured.
[52] Arbitrator's Reasons [165].
Fourthly, it was plausible that Mr Greenaway used his position as the sole director to arrange for Auspray to enter a contract with Prestige.[53]
[53] Arbitrator's Reasons [166].
Fifthly, two facts are accorded no weight. Payment to the estate of Mr Greenaway (rather than Auspray) for the work done on the day of Mr Greenway's death was explained by Mr Bradley's desire to atone for the death of a friend rather than to reflect any legal relationship. The fact that Auspray did not hold an AOC at the time of the making of the making of the Prestige Contract is stated to be of no significance in the absence of any evidence (or a submission) that if Mr Greenaway was a party to the Prestige Contract it would be tainted by illegality arising from the operation of the Civil Aviation Act 1988 (Cth).[54]
[54] Arbitrator's Reasons [169].
After discussion of the above five matters, the Arbitrator's Reasons record a conclusion on the identity of the parties to the Prestige Contract as follows:
170After having considered all the evidence, I find it is more likely than not that Prestige contracted with Auspray in relation to the piloting service conducted in September 2010. The invoices are clear, they were prepared by Mr Greenaway, the evidence establishes that Auspray was conducting a business in 2010, and that conclusion is in part supported by the other piloting contracts with other businesses in 2010, all of whom were invoiced by Auspray, not Mr Greenaway.
The appellant's contention that the only finding reasonably open to the arbitrator was that the parties to the Prestige Contract were Prestige and Mr Greenaway is linked to submissions made on the Auspray Conducting Business Finding and those have been discussed above.
However, additional discrete contentions concerning the Parties to Contract Finding are evident in the Amended Appeal Notice.
Some complaints may be dealt with shortly. No question of law arises from the following:
•It is said that the arbitrator ought to have drawn an inference that a payment made to the estate of Mr Greenaway was evidence of a contract between Prestige and Mr Greenaway.[55] However, the Arbitrator's Reasons reveal a rational basis for concluding the fact of payment to Mr Greenaway's estate does did not assist in resolving who was party to the Prestige Contract.[56]
•The appellant contends that the arbitrator failed to accord any weight to the fact that Prestige held an AOC and that Auspray did not hold an AOC.[57] The contention is correct. The Arbitrator's Reasons contain rational explanation for concluding that the fact that Auspray did not hold an AOC was not a significant factor in determining the identity of the parties to the Prestige Contract.
•The appellant contends that no evidence exists to support the arbitrator's finding that Mr Greenaway used his position as the sole director to arrange for Auspray to enter a contract with Prestige.[58] The contention ignores the discussion in the Arbitrator's Reasons concerning transactions negotiated by Mr Greenaway on behalf of Auspray.[59]
[55] Amended Appeal Notice, Ground 6(c).
[56] Arbitrator's Reasons [84] - [85].
[57] Amended Appeal Notice, Ground 6(f).
[58] Amended Appeal Notice, Ground 6(g).
[59] Arbitrator's Reasons [162], [165].
It is also said that the arbitrator failed to consider and address the legal test of the 'reality of the situation' of the relevant entities including Mr Greenaway and that, 'contrary to established legal principles', the arbitrator relied upon invoices in the name of Auspray in finding that Auspray contracted with Prestige.[60]
[60] Amended Appeal Notice, Ground 6(b), 6(d).
The correct approach to the identification of parties to a contract is not in doubt. In Lederberger v Mediterranean Olives Financial Pty Ltd,[61] the Victorian Court of Appeal state:
Identification of the parties to a contract must be in accordance with the objective theory of contract. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had. The process of construction requires consideration not only of the text of the documents, but also the surrounding circumstances known to the parties and the purpose and object of the transaction. This in turn presupposes knowledge of the genesis of the transaction, the background, and the context in which the parties are operating.
(footnotes omitted)
[61] Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262.
The arbitrator did not state the quoted principle in so many words. However, the Arbitrator's Reasons on the five matters outlined above reveal an approach to the task of identifying the parties to the Prestige Contract that is consistent with the objective theory of contract and the necessity to identify and consider surrounding circumstances to determine the intention of the parties.
The circumstances surrounding the making of the Prestige Contract assumed significance in the absence of any direct evidence of oral communications between Mr Bradley (on behalf of Prestige) and Mr Greenaway.
The arbitrator correctly identified the essential question as being whether, on the date of his death, Mr Greenaway was performing piloting duties pursuant to a contract between Prestige and Auspray or between Prestige and Mr Greenaway.
In determining the answer to this essential question, the arbitrator drew inferences from findings of fact made on evidence of all of the circumstances surrounding the making of the Prestige Contract. Those circumstances included evidence of the activities of Auspray in 2010.
For the reasons above, the appellant has not demonstrated that the arbitrator drew an inference that was not reasonably open, namely, that the parties to the Prestige Contract were Prestige and Auspray.
Section 10A Interpretation Issue
An alternative argument advanced by the appellant as the basis for a claim to compensation relies upon s 175 of the Act. The effect of the section is that a 'principal' and a 'contractor' are both 'deemed to be employers' of a worker who is employed by the contractor and where the worker is injured directly in the trade or business of the principal,[62] the principal and the contractor are jointly and severally liable for compensation to the worker.[63]
[62] Sections 175(1), s 175(3).
[63] Section 175(1).
The appellant submitted to the arbitrator that:
•Prestige, as the principal, contracted with Auspray, as the contractor, for work to be done by Auspray on 14 September 2010.
•In the execution of that work by Auspray for Prestige (principal), Mr Greenaway was employed as a worker by Auspray (contractor).
•Mr Greenaway's death was the result of an injury that occurred directly a part of the trade or business of Prestige (principal).
The arbitrator made findings of fact consistent with the appellant's submissions in each of the three dot points of the preceding paragraph:[64]
•Prestige and Auspray entered a contract in which Prestige was the principal and Auspray was the 'contractor' for piloting work to be done by Auspray on 14 September 2010.
•In the execution of that work by Auspray for Prestige, Mr Greenaway did work for Auspray in circumstances with the result that he was a 'worker' of Auspray (within the extended definition in s 5 of the Act).
•Mr Greenaway's death was the result of an injury that occurred at the time his work was directly a part of the trade or business of Prestige.
[64] Arbitrator's Reasons [199] - [200].
Notwithstanding these findings of fact, the appellant's claim based on s 175 of the Act was dismissed by the arbitrator. The arbitrator acceded to a submission of Prestige that, by reason of s 10A of the Act, Mr Greenaway was not a 'worker' for the purposes of s 175 of the Act with the result that criterion in the second dot point in the preceding paragraphs was not satisfied.
Section 10A of the Act provides that director of a company is not, for the purposes of the Act, a 'worker' of that company unless:
•the director is a 'working director' (as defined); and
•the company complies with s 160 of the Act concerning the obtaining of a policy of insurance for liability to pay compensation to the working director.
It is not in dispute that Mr Greenaway is a director of a company, namely, Auspray. The arbitrator made findings of fact consistent with submissions of Prestige on each of the two dot points of the preceding paragraph:[65]
•Mr Greenaway was a 'working director' (as defined) of Auspray; and
•Auspray had not complied with s 160 of the Act by obtaining a policy of insurance for liability to pay compensation to Mr Greenaway.
[65] Arbitrator's Reasons [199] - [200].
The reasoning of the arbitrator was that the liability of Prestige under s 175 of the Act was contingent upon Mr Greenaway being a 'worker as defined by the Act'.[66] The effect of s 10A of the Act was that Mr Greenaway, a working director, was not a 'worker' for the purposes of the Act in circumstances of non‑compliance with the requirement of s 10A to obtain a policy of insurance.[67] The arbitrator concludes:
203I consider the clear intent of the legislature is to exclude non‑compliant working directors from the definition of 'worker' and thereby excludes non‑compliant working directors from the operations of the Act, whatever original 'mischief' was sought to be corrected.
204That being the case, as Mr Greenaway is not a worker for the purpose of the Act, Mr Greenaway is not a worker falling within the provisions of s 175 of the Act. On that basis, Prestige cannot be liable as Principal contractor as its liability is conditional on a 'worker' being injured.
[66] Arbitrator's Reasons [200].
[67] Arbitrator's Reasons [201].
The proper construction of s 175 of the Act and the interaction of that provision with s 10A are questions of law.
The principles applicable to statutory interpretation were summarised by the Court of Appeal of Western Australia in Mohammadi v Bethune:[68]
[68] Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
31Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. … Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
32The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
33The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
34Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'.
35Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.
36Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict.
(footnotes omitted)
The purposes of the Act are identified in s 3. Those purposes include the establishment of a scheme to deal with compensation in respect of 'workers who suffer an injury'.[69]
[69] Section 3(a).
The broad scheme of the Act is outlined in s 4. The Act creates a liability to pay compensation, the requirement to obtain a policy of insurance for the full amount of liability, and an entitlement to compensation.[70]
[70] Section 4(2)(a) of the Act.
The liability to pay compensation and the entitlement to compensation is the subject of 'Part III - Compensation of the Act' and related schedules. Part III commences with s 18 stating that 'if an injury to a worker occurs, the employer shall, subject to the Act, be liable to pay compensation' as proscribed.[71]
[71] The quoted words are from s 18 as at 30 June 2018. See Sch 8 Div 2 on Transitional provisions.
Terms contained in s 18 are defined in s 5: 'injury', 'worker' and 'employer'. The term 'injury' is defined to include a 'personal injury by accident arising out of or in the course of employment or whilst acting under the employer's instructions'.[72] The term 'employer' is defined to extend to 'any person for or by whom any worker as defined in [the first limb or the extended definition] works or is engaged'.
[72] Section 5.
It has been noted that the first limb of the definition of 'worker' means a person who has entered a contract of service with an employer. By the extended definition, 'worker' is defined to also include:
the term worker save as aforesaid, also includes -
…
(b)any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services,
…
The definition of 'worker' in s 5 of the Act must be read with the provisions of 'Part II - Application of this Act in respect of certain persons and bodies'. For the purposes of the Act, a tributer[73] is deemed to be a 'worker'.[74] Similarly, for the purpose of the Act, a person who holds a judicial or statutory office is deemed to be 'a worker employed by the Crown'.[75] A member of the clergy of identified churches is a 'worker'.[76] 'For the purposes of the Act, a 'worker' includes a licensed jockey'.[77] Among these same provisions is s 10A. It excludes a 'working director', as defined, from being a 'worker' for the purposes of the Act unless certain criteria are satisfied. It states:
[73] A person who mines on a share basis.
[74] Section 7(1).
[75] Section 14(2a).
[76] Section 7, s 8, s 9.
[77] Section 11A(2).
10A.Working directors
(1)In this section -
company means a company as defined in section 5(1) other than a public company as that term is defined in the Corporations Act 2001 of the Commonwealth;
corporate body has the same meaning as company in section 5(1);
director has the meaning given to that term in the Corporations Act 2001 of the Commonwealth;
earnings means wages, salary and other remuneration;
working director, in relation to a company, means a director of the company, whether or not the director would be a worker if this section did not apply -
(a)who executes work for or on behalf of the company; and
(b)whose earnings as a director of the company by whatever means are in substance for personal manual labour or services.
(2)Despite anything in section 5, a director of a corporate body is not a worker of that corporate body for the purposes of this Act unless and to the extent that this section makes the director a worker.
(3)A company may apply to an approved insurance office under section 160(2) on the basis that a working director of the company is a worker.
(4)If a company complies with section 160 in respect of a working director of the company on the basis that the director is a worker, then, for the purposes of this Act other than section 174(1AA) -
(a)the director is a worker; and
(b)the company is the employer of the director.
(5)Subsection (4) ceases to apply if the circumstances described in subsection (7) arise.
(6)If a company that is an employer is, or is one of a group of employers that is, exempt under section 164, then, for the purposes of this Act -
(a)a director of the company who is a working director is a worker; and
(b)the company is the employer of the director.
(7)If a company (other than a company that is, or is one of a group of employers that is, exempt under section 164) does not comply with section 160 on the basis that a working director of the company is a worker, then, for the purposes of this Act, the working director is not a worker.
(8)Subsection (7) does not prevent the company from applying as described in subsection (3), and subsection (7) ceases to apply if the circumstances described in subsection (4) arise.
The requirements concerning policies of insurance are the subject of 'Part X - Insurance'.
Section 160 concerns the duty of employers to be insured:
•Every employer must obtain from an approved insurance office, and keep current, a policy of insurance for the employer's liability to pay compensation to any worker employed by the employer.[78]
•The employer must furnish an estimate of the remuneration to be paid over the period of the policy.[79]
•Relevantly, s 160(2a) of the Act provides:
(2a)Where, under section 10A, an employer that is a company applies to an approved insurance office under subsection (2) on the basis that any director of the company is a worker, that employer shall, in relation to each such director, furnish to that office, in addition to the information required to be furnished under subsection (2) -
(a)the name of the director; and
(b)in relation to that director in particular, the information, verified as required under subsection (2), that the employer is required under that subsection to furnish in relation to the employer's workers.
•Upon a proper application for a policy of insurance, an approved insurance office must insure an employer.[80]
[78] Section 160(1)(a).
[79] Section 160(2).
[80] Section 160(3).
Section 160A of the Act, introduced at the same time as the current iteration of s 10A, provides for arbitration of a dispute between an employer and an insurance office on whether a person is a 'working director' of a company.[81] The same provision states that an insurance office is bound by any insurance policy of a working director unless an arbitrator determines that the policy was obtained as a result of a false representation on a material matter and the decision to issue the policy was materially affected by the representation.[82]
[81] Section 160A(1).
[82] Section 160A(2).
Section 175 of the Act is found in 'Part X, Division 2 - Insurance by principals, contractors, and sub-contractors' and states:
175.When principal, contractor and sub-contractor deemed employers
(1)Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act.
(2)The principal is entitled to indemnity from the contractor for the principal's liability under this section.
(3A)The indemnity conferred by subsection (2) does not allow the principal to recover from the worker -
(a)any amount which the worker receives from the contractor by way of compensation or damages in respect of a compensable injury; or
(b)any amount which the worker receives from WorkCover WA under section 174 in respect of the contractor's liability to pay compensation or damages to the worker.
(3B)The indemnity conferred by subsection (2) does not allow the principal to recover any amount from WorkCover WA.
(3)The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the injury is directly a part or process in the trade or business of the principal.
(4)Where the principal and the contractor are jointly and severally liable under this section, a judgment obtained against one is not a bar to proceedings against the other except to the extent that the judgment has been satisfied.
(5)Where compensation is claimed from or proceedings are taken against the principal, in the application of this Act a reference to the employer shall be read as a reference to the principal except where, for the purpose of calculating the amount of compensation, a reference is made to the earnings of a worker, the reference shall be read as a reference to the earnings of the worker under the contractor.
(6)For the purposes of this section, where sub-contracts are made -
(a)principal includes the original principal for whom the work is being done and each contractor who constitutes himself a principal with respect to a sub-contractor by contracting with him for the execution by him of the whole or any part of the work; and
(b)contractor includes the original contractor and each sub-contractor; and
(c)a principal's right to indemnity is a right against each contractor standing between the principal and the worker.
(7)Where the injury does not occur in respect of premises on which the principal has undertaken to execute the work or which are otherwise under his control or management, subsections (1) to (6) inclusive do not apply.
(8)Nothing in this section makes either a principal or a contractor liable to pay any damages which, but for this section, the principal or contractor would not be liable to pay.
The effect of s 10A(1), s 10A(2) of the Act is that a director of a company is not 'a worker for the purposes of the Act' unless, in the case of a 'working director', the company applies for insurance under s 160 of the Act. Conversely, if the company makes such an application for insurance, s 10A(4) of the Act provides that the director is a 'worker' and the company is the employer of the director.
The purpose of s 10A of the Act, evident from the text of the section (and s 160), is to enable a working director to participate in the compensation scheme of workers created by the Act. The significant elements of the scheme, noted in s 4 of the Act, include the creation of statutory entitlements and liabilities as well as compulsory insurance requirements for entities with statutory liabilities. The injured working director of a company that has obtained an approved policy of insurance is entitled to the same entitlements as any other worker. However, the injured working director of a company that has not obtained an approved policy of insurance is not, for the purposes of the Act, considered to be a 'worker'.
The submission of the appellant on s 10A of the Act draws attention to the literal effect of s 10A(2) insofar as a director of a corporate body is not a worker of that corporate body unless there has been application for insurance. [83] It follows that, for the purpose of the Act, s 10A has the effect that Mr Greenaway is not a worker of Auspray. He cannot make a claim for compensation upon Auspray. However, s 10A(2) does not limit access to compensation 'when the claim is being made against an entity other than' Auspray.[84] The appellant submits that, although Mr Greenaway is not a 'worker' of Auspray, he is a 'worker' of Prestige as a result of the deemed worker/employer relationship created by s 175 of the Act. Section 10A does not impinge upon Mr Greenaway's entitlement, as a (deemed) worker of Prestige, to compensation from that company.
[83] See 'Applicant's Outline of Submissions Regarding Construction of s10 A of the (Act)' dated 19 February 2018 (Applicant's 10A Submissions).
[84] Applicant's 10A Submissions par 36.
Some observations must be made about the structure of the Act and the text of s 175 of the Act in order to evaluate this submission.
Section 18 of the Act creates both an entitlement of a worker to compensation and a liability to pay the entitlement (quantified in schedules of the Act) upon an 'employer'. The entitlement and liability crystallise upon an injury to the 'worker'.
Section 175 of the Act does not create an entitlement to compensation. It is concerned with identifying the parties who have liability to pay the entitlement that is created by s 18. The distinction between 'entitlement' and 'liability' is explicitly made in s 4(2)(a) of the Act.
Section 175 of the Act adds a 'second' employer (ie the principal) as a person who is jointly and severally liable with the 'usual employer' (ie the contractor) to pay the entitlement that is created by s 18. Both the principal and the contractor are 'jointly and severally liable to pay any compensation which the contractor' would be liable to pay under the Act (ie under s 18).
Before joint and several liability attaches to the principal, the effect of s 175(1), s 175(3) of the Act is that a number of conditions must be satisfied:
•There must be a contract between the principal and the contractor for the execution of work by the contractor (the Principal/Contractor Condition): s 175(1).
•In the execution of the work, the contractor must employ 'a worker' (the Contractor Worker Condition): s 175(1).
•The work being done at the time of the injury must be a part of the trade or business of the principal (the Part of Principal's Business Condition): s 175(3).
Given the combined effect of s 18 and s 175 stated above, the meaning attributed to the term 'worker' in each of those provisions is a matter of significance in this case in two respects.
First, the effect of s 175(1) of the Act is that the quantum of the liability of Prestige (the principal) is the same as Auspray (the contractor) 'would be liable to pay under the Act'. The effect of s 18 is that Auspray has no liability to anyone other than a 'worker' of Auspray. Accepting the appellant's submission on the effect of s 10A of the Act as bearing only on the relationship between Mr Greenaway and Auspray, it is precisely this relationship that, for the purposes of s 175, defines the entitlement of Mr Greenaway as against Prestige. If Mr Greenaway is not a worker of Auspray, Auspray has no liability to pay compensation under s 18 of the Act and, consequently, Prestige has no liability to pay compensation under s 175 of the Act. As the appellant concedes, the effect of s 10A is that Mr Greenaway is unable to be a worker of Auspray.
Secondly, the Contractor Worker Condition is only satisfied if Auspray employed 'a worker'. The appellant's submission on s 10A does not address the meaning to be attributed to the text of s 175(1) constituting the Contractor Worker Condition. If Mr Greenaway is unable to be characterised as a 'worker of Auspray' for the purpose of s 175(1), the Contractor Worker Condition is not satisfied and Prestige has no liability. Again, on the appellant's submission, the effect of s 10A is that Mr Greenaway was not a worker of Auspray. The condition is not satisfied and Prestige has no liability.
The interpretation of s 10A and s 175 of the Act suggested in the two preceding paragraphs gives literal effect to the text of each of s 10A(2) and s 175(1). The relevant text of s 175(1) is that which limits the liability of Prestige to 'compensation which the contractor if he were the sole employer would be liable to pay under this Act' and that which creates the Contractor Worker Condition. The interpretation is consistent with the purpose of those provisions as derived from their text, and their context within the structure of the Act as a whole.
Considering the mischief to which s 10A is addressed does not suggest a different result. It may be accepted that the iteration of s 10A introduced in 2005[85] was done for the purpose of addressing the frustration of a working director denied compensation by a company insurer on the basis that the director was not a 'worker' as defined by s 5 of the Act. Support for this contention is evident from s 160A, introduced at the same time as s 10A, creating a process for resolving disputes over insurance coverage. A 'working director', desirous of participating in the compensation scheme created by the Act, must arrange for his or her company to make an application for a policy of insurance in accordance with s 160 of the Act. The interpretation suggested above does nothing to discourage this course of conduct.
[85] Prior to 2005, s 10A relevantly stated: '10A. Exclusion of certain working directors (1) Notwithstanding anything in section 5 a person is not a worker within the meaning of this Act while the person is (a) a director of a company in any share of which the person has a beneficial interest; and (b) engaged or employed by or working for that company, if the employer company has not complied with section 160 on the basis that the person is a worker. (2) Subsection (1) does not prevent the employer, when complying with section 160, from doing so on the basis that the person referred to in that subsection is a worker'.
Nor is a different result suggested by the text (or effect) of s 175(2) of the Act. It provides for the principal's entitlement to indemnity from the contractor. Indeed, the prospect of a principal seeking to enforce an indemnity against the (uninsured) company of an injured working director does not sit easily with the purpose of s 10A identified in the preceding paragraph.
In the result, although leave is granted on the question of the correct interpretation of s 10A and s 175 of the Act, I have reached the same conclusion as the arbitrator on the effect of those provisions in the circumstances of this case. The appellant's alternative claim must be dismissed.
Adequate Reasons Error
The Act requires the Arbitrator's Reasons to identify accepted facts and relevant law as well as giving reasons for findings of fact and the application of law.[86] The statutory obligation is supplemented by a common law obligation upon a decision maker to 'summarise the crucial arguments of the parties, formulate the issues and resolve issues of law and fact'.[87] The function of reasons is to provide procedural fairness to a litigant.[88] Brief reasons are adequate so long as the reasoning process which led to the result is disclosed.
[86] Section 213(4)(a), s 213(4)(b).
[87] Velez Pty Ltd v Tudor [2011] WASCA 218 [62] (Murphy JA, Pullin & Newnes JJA) citing AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [85].
[88] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27] - [28].
The arbitrator dealt briefly with some contentions of the appellant. The non-significance of the AOC to the Contract Issue is explained over three paragraphs.[89] Relevant to the Deemed Employment Issue, the arbitrator states, in effect, that the plain language of statute reflects a legislative intention that does not accord with the appellant's submissions, including those submissions on the mischief to which s 10A of the Act is addressed.[90] In each case, the reasoning process of the arbitrator is adequately exposed. In the context of the case to be determined by the arbitrator, no question of law arises from the adequacy of the content of the reasons on those matters.[91]
[89] Arbitrator's Reasons [167] - [169].
[90] Arbitrator's Reasons [201] - [203].
[91] See Amended Appeal Grounds 1, 5.
The Arbitrator's Reasons on the Contract Issue proceed as follows:
•The nature of the Contract Issue is described.[92]
•The provisions of the Act relevant to the Contract Issue are set out.[93]
•Evidence of the Two Prestige Invoices and an invoice of 14 September 2010 is described and the subject of findings.[94]
•Evidence of each witness (and associated documentary evidence) is described and the subject of findings.[95]
•The submissions of the appellant on the Auspray Conducting Business Finding are set out[96] and evaluated;[97]
•The evidence on the Parties to Contract Finding is evaluated[98] and a conclusion reached on the Contract Issue.[99]
[92] Arbitrator's Reasons [1] - [18].
[93] Arbitrator's Reasons [24] - [35].
[94] Arbitrator's Reasons [39] - [43].
[95] Arbitrator's Reasons [44] - [153].
[96] Arbitrator's Reasons [154] - [158].
[97] Arbitrator's Reasons [159] - [160].
[98] Arbitrator's Reasons [161] - [169].
[99] Arbitrator's Reasons [170] - [172].
Confusingly, after reaching a conclusion on the Contract Issue, the arbitrator proceeds to summarise the submissions of the appellant on the Contract Issue.[100] It is apparent to me that this portion of the Arbitrator's Reasons is an accurate summary of that part of the Applicant's (Written) Outline of Closing Submissions[101] set out under the heading, 'Evidence Supporting Deceased as Extended Definition Worker'.[102] Immediately after the summary, the arbitrator records that many of the summarised submissions had 'already been dealt with and rejected' before repeating his conclusion that, notwithstanding the existence of primary facts that favoured competing inferences, he was not persuaded by the appellant that Mr Greenaway was a party to the Prestige Contract.
[100] Arbitrator's Reasons [173].
[101] Appeal Book pages 898 - 934.
[102] Appeal Book page 917ff.
The appellant contends that the arbitrator had not, in fact, dealt with a number of the summarised submissions. Specifically, it is said that the the arbitrator had not addressed at all the appellant's submissions on:[103] Prestige expanding its business (a); Mr Greenaway being a pilot and Prestige required a pilot (b); an aspect of the invoicing for the Wickens/Griffith transactions (h); Mr Greenaway working as a real estate agent (l).
[103] Appellant's Written Submissions par 133.
My view is that it is likely that the arbitrator made the summary of the appellant's submissions out of an abundance of caution to ensure that no matters of significance to the determination of the Contract Issue were overlooked. It was, in effect, a check list.
Supporting my view is the fact that the summary of submissions repeats matters already the subject of detailed consideration by the arbitrator when reaching conclusions on the Auspray Conducting Business Finding and the Contract Parties Finding. For example, the summary of submissions includes reference to: invoices in the name of Auspray and the legal significance of those invoices ((d), (g), (h), (m), (n)); transactions underlying those invoices ((d), (g), (h)); payments into Mr Greenaway's bank account ((d), (f)); and other evidence bearing on the activity of Auspray in 2010 ((e), (j)).
The inference I draw from the omission of specific consideration of the matters identified by the appellant is that the arbitrator assessed those matters as being of no significance when determining the Contract Issue. Such a conclusion would not be surprising. For example, the fact of Mr Greenaway working as a real estate agent was likely to be of limited weight to the task of determining the identity of the parties to the Prestige Contract.
The arbitration involved four days of oral evidence and documentary evidence that filled one and half lever arch folders. The Arbitrator's Reasons reveal a cogent summary and assessment of so much of that material as the arbitrator considered to be significant to the issues as (accurately) formulated by the arbitrator. The statutory obligation to give reasons does not require an arbitrator to canvas all the evidence and all of the arguments.[104] At common law, the arbitrator is required to disclose the process of reasoning that explains the result of the case. The common law duty was discharged in this case without express reference to a small number of matters of no significance to the arbitrator, notwithstanding that the arbitrator had summarised the appellant's submissions on those matters. No question of law arises from omission of reasons on those matters.[105]
[104] Section 213(4)(c), s 213(4)(d).
[105] See Amended Appeal Grounds 2, 3.
Conclusion
The appellant's case was based on the extended definition of 'worker' in s 5 of the Act. For the purposes of the extended definition, the appellant was required to prove two elements.
First, that Mr Greenaway was engaged by Prestige to work for Prestige's trade or business under a contract for service ie that Mr Greenaway was an independent contractor and entered into a contract with Prestige. The arbitrator concluded that the appellant had failed to prove the existence of such a contract.
Secondly, the appellant was required to demonstrate that the remuneration of Mr Greenaway was in substance for his personal manual labour or services.[106] The arbitrator did not make a finding on this issue. It is not necessary, for the purpose of this appeal, to determine whether the second element has been established. For completeness, I will record my view that, if Mr Greenaway was a party to the Prestige Contract (contrary to finding of the arbitrator), for the reasons advanced in the appellant's written submissions,[107] any remuneration to which Mr Greenaway was entitled for work on 14 September 2010 was substantially for his personal services.
[106] Section 5(b).
[107] See Appellant's Written Submissions pars 148 - 154.
The appellant has been unsuccessful in demonstrating that the Arbitrator's Reasons disclose an error of law in relation to the Contract Issue. Further, I have concluded that, on the correct interpretation of s 10A and s 175 of the Act, the arbitrator was required to dismiss the appellant's alternative claim.
In the result, leave is refused on each ground of appeal other than the ground of appeal concerning the construction of s 10A and s 175 of the Act. Leave is granted on that ground alone, but the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SC
Associate to Judge Flynn10 DECEMBER 2020
0
13
2