Nguyen v Abbey and Cruz Homes Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nguyen v Abbey and Cruz Homes Pty Ltd [2021] NSWPIC 305
APPLICANT:	Thi Kim Phuong Nguyen
FIRST RESPONDENT:	Abbey and Cruz Homes Pty Ltd
SECOND RESPONDENT:	Talia Tran
THIRD RESPONDENT:	Hali Tran
FOURTH RESPONDENT:	Ngoc Hanh Lam
FIFTH RESPONDENT:	Mya Tran
SIXTH RESPONDENT:	Kayla Tran
MEMBER:	Michael Wright
DATE OF DECISION:	25 August 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for death of a worker; “worker” and deemed worker disputed; weight to be given to existence of ABN registered by the deceased; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) considered; Jones v Dunkel inferences considered; indicia of employment considered with reference to Stevens v Brodribb Sawmilling Co Pty Ltd; ultimate authority rather than actual supervision considered with respect to Humberstone v Northern Timber Mills; focus of multi-factorial employment indicia viz On Call Intepreters, Hollis and as discussed in Malivanek; Held - deceased was a worker; section 109 interest claimed; award for death benefits and interest awarded.
DETERMINATIONS MADE:	1. The deceased, Quoc Thong Tran, suffered injury on 16 August 2017 arising out of or in the course of his employment with the first respondent, Abbey and Cruz Homes Pty Ltd, as a result of which he died on that day. 2. The applicant and the second, third, fifth and sixth respondents were wholly or partly dependent for support on the deceased at the time of his death. 3. There are no other persons who were wholly or partly dependent for support on the deceased at the time of his death. 4. The lump sum death benefit of $775,600 payable pursuant to section 25 of the Workers Compensation Act 1987 as a result of the death of the deceased is to be apportioned as follows: a. applicant: $500,000; b. second respondent: $83,000; c. third respondent: $95,650; d. fifth respondent: $50,000, and e. sixth respondent: $46,950. 5. The first respondent is to pay to the NSW Trustee in accordance with section 85(1)(c) and (2) of the Workers Compensation Act 1987 the lump sum death benefits apportioned to the second, third, fifth and sixth respondents. 6. The first respondent is to pay to the applicant pursuant to section 31(1)(a) of the Workers Compensation Act 1987 the weekly amounts of compensation payable pursuant to section 25(1)(b) of the Workers Compensation Act 1987 in respect of the second and third respondents. 7. The first respondent is to pay to the fourth respondent pursuant to section 31(1)(a) of the Workers Compensation Act 1987 the weekly amounts of compensation payable pursuant to section 25(1)(b) of the Workers Compensation Act 1987 in respect of the fifth and sixth respondents. 8. The first respondent is to pay Mr Van Thinh Tran pursuant to section 26 of the Workers Compensation Act 1987 the sum of $15,000 for funeral expenses. 9. The first respondent is to pay interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 at the rate of 3% per annum from 16 July 2018 to the date of this determination, on the section 25(1) amount of $775,600, and on the weekly payments payable in respect of the second, third, fifth and sixth respondents in accordance with (6) and (7) above. Interest is to be paid by the first respondent in accordance with the apportionment ratio stated at (4) above. 10. The first respondent is to pay interest to Mr Van Thinh Tran pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 at the rate of 3% per annum from 16 July 2018 to the date of this determination, on the sum of $15,000 in respect of funeral expenses.

STATEMENT OF REASONS

BACKGROUND

This is an application by Mrs Thi Kim Phuong Nguyen (the applicant) in respect of the death of her late husband, Mr Quoc Thong Tran (the deceased) in respect of injury said to have happened in the course of his work with Abbey and Cruz Homes Pty Ltd (the first respondent).
On 16 August 2017 the deceased died as a result of injuries received on the same day when part of a brick wall fell onto him as he was working on a construction site. A number of entities conducted work on or in respect of the site, including the first respondent, which had previously traded as Spot On Construction, NSW Bricklaying Pty Ltd, WYZ Development Pty Ltd (WYZ) and Effective Building & Construction Pty Ltd (EBC). The first respondent also concurrently worked on a nearby construction site.
The second and third respondents were the daughters of the applicant and her late husband. The fourth respondent was the former de facto spouse of the deceased. The fifth and sixth respondents were the daughters of the fourth respondent and the deceased.
The section 78 notice of the insurer dated 8 July 2019 disputed liability for the applicant’s claim on the basis that it disputed that the deceased was a worker or that the deceased was a deemed worker. The section 78 notice also stated that the evidence did not support that death resulted from an injury for the purposes of section 25 of the Workers Compensation Act 1987 (the 1987 Act). I am unable to ascertain on what basis this last allegation was made by the insurer and there were no submissions by the first respondent in this regard at the arbitration.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 1 July 2021, the applicant was represented by Mr Epstein of counsel; the first respondent by Mr Grant of counsel; the second respondent by Mr Nicholson of counsel; the third respondent by Mr S Hickey of counsel; the fourth respondent by Mr Truong, solicitor; the fifth respondent by Mr Horan of counsel; and the sixth respondent by Mr Hanrahan of counsel.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    Application to Resolve a Dispute and attached documents (the Application);
(b)    Reply by First Respondent and attached documents;
(c)    Reply by Second Respondent and attached documents;
(d)    Reply by Third Respondent and attached documents;
(e)    Amended Reply by Fourth Respondent and attached documents;
(f)    Reply by Fifth Respondent and attached documents;
(g)    Reply by Sixth Respondent and attached documents;
(h)    Application to Admit Late Documents dated 28 April 2021 and attached documents (containing amended Reply by fourth respondent and attached documents);

(i)    Application to Admit Late Documents dated 29 April 2021 and attached; documents (containing Reply by third respondent and attached documents);
(j)    Application to Admit Late Documents dated 27 May 2021 and attached documents (containing Statutory Declaration of Thi Kim Phuong Nguyen dated 26 May 2021);
(k)    Statutory Declaration of Bich Lien Tran dated 18 March 2021, and
(l)    Statutory Declaration of Van Thinh Tran dated 18 March 2021.

Oral Evidence

There was no application to give oral evidence nor was there an application to cross-examine.

Statements of Thi Kim Phuong Nguyen

Mrs Nguyen provided statutory declarations dated 18 September 2018 and 27 May 2021 and statements dated 26 September 2018 and 21 October 2020.
Mrs Nguyen relevantly stated that from Easter 2014, following court proceedings against him for a driving offence, the deceased was admitted to a rehabilitation centre. Thereafter, Mrs Nguyen and her husband went on holiday in Vietnam from 15 September 2015 to 12 November 2015. Prior to this holiday, her husband worked for Quoc Kai Tran at various jobs to earn money for the holiday. Upon return from that holiday, Mrs Nguyen stated that her husband worked for a coffin making warehouse and factory from January 2016 to June 2016.
Mrs Nguyen stated that after ceasing work with the coffin making company her husband started work for Mr Quoc Khai Tran from about the end of June 2016 and he continued to work for Mr Quoc Khai Tran until the accident on 16 August 2017.
Mrs Nguyen stated that while working for Mr Quoc Khai Tran her husband earned $200 per day and worked on average six days per week continuously from about the beginning of July 2016 until the accident of 16 August 2017. She stated that the only time off work that her husband took in that period was for two holidays in Vietnam from 15 October 2016 to 30 October 2016 and from 3 April 2017 to 11 May 2017. In her statement dated 21 October 2020, Mrs Nguyen stated that her husband was paid $200 per day and he was paid in cash on a Friday or a Saturday for his work.
Mrs Nguyen also stated that after the accident on 16 August 2017 Mr Quoc Khai Tran attended her premises and gave her a cheque dated 10 August 2016 for about $1000.
Mrs Nguyen stated that Mr Quoc Khai Tran said to her that the cheque was further her husband’s wages for that week. She stated that this was the first and last cheque that she ever received from Mr Quoc Khai Tran.
Mrs Nguyen stated that her husband did not have to have an ABN as he was an employee of the first respondent. She stated that her husband was known to Mr Quoc Khai Tran as they were cousins and he was offered a position with the first respondent after he finished working for another business in June 2016. Mrs Nguyen stated that her husband worked from Monday to Saturday each week with hours of work commencing from 6 am to 7 am and finishing between 4 pm and 5 pm each day. She stated that her husband was required to seek leave from his employer for time off work.
Mrs Nguyen stated that the husband wore his own safety boots. She stated that the first respondent supplied his safety wear and his equipment to use at work for his work duties. She stated that he did not have to take items of equipment to work with him each day. In her statutory declaration of 27 May 2021, Mrs Nguyen stated that her husband had been disqualified from driving for a long time, until about 2023. She also stated that her husband did not have any personal tools as they were provided by Mr Quoc Khai Tran.
Her husband would travel to work each day, Mrs Nguyen stated, with Mr Quoc Khai Tran who was his manager and owner of the first respondent. Mr Quoc Khai Tran would pick up her husband from home and drive him to work in the morning and take him home again from work in the afternoon, as her husband was not licensed to drive, Mrs Nguyen stated. She stated that Mr Viet Ha Le, the father-in-law of Mr Quoc Khai Tran, would pick up her husband if Mr Quoc Khai Tran could not do so. In her statutory declaration of 27 May 2021,
Mrs Nguyen stated that her husband would often be partnered with Mr Viet Ha Le, as Mr Viet Ha Le did not speak English whereas her husband did.
Mrs Nguyen also stated that her parents-in-law paid for the funeral of her late husband as she did not have the money to pay for it at that time. She stated that the cost was about $26,000.
Mrs Nguyen also stated that she was not working at the time of her husband’s death and she was looking after their two small children and running the household. Mrs Nguyen also gave details of Centrelink payments and household expenses. She stated that her late husband also paid child maintenance to the children from his previous relationship. She also stated that she would like to be able to provide for her children for travel and normal family activities that she and her husband had planned for the future.
Mrs Nguyen stated that while her husband worked for the first respondent he did not work for anybody else and he did not have a business card. She had a joint bank account with her husband and there was no other separate account.
In her statutory declaration dated 27 May 2021, Mrs Nguyen attached text messages from her late husband’s mobile phone. These were text messages between her late husband and Mr Quoc Khai Tran between May and June 2017. Mrs Nguyen referred to her husband’s holidays in Vietnam, the latter being from 3 April 2017 to 11 May 2017, when he was on holidays with her and their two daughters. Mrs Nguyen stated that on return from this holiday her husband messaged Mr Quoc Khai Tran that he had returned and was ready for work, as indicated in the annexed text messages.
Mrs Nguyen also stated that her husband had told her that Mr Quoc Khai Tran’s company was known as Spot on Construction.
Mrs Nguyen in her statutory declaration of 27 May 2021 also listed a schedule of deposits that she made into their joint bank account from September 2016 to September 2017, which were monies left over from her husband’s wages. A copy of the joint bank account statement was also annexed.

Statement and statutory declaration of Ngoc Hanh Lam

Ms Ngoc Hanh Lam provided a statutory declaration dated 28 April 2021and a statement dated 29 June 2021.
In her statement, Ms Lam stated that she was the former de facto partner of the deceased. She stated that they had two children, Mya Tran, born in 2004 (the fifth respondent), and Kayla Tran, born in 2005 (the sixth respondent). Ms Lam and the deceased separated in October 2006.
Ms Lam stated that she would take Mya and Kayla to their grandparent’s house (the deceased’s parents) on special occasions and on some weekends to spend time with their grandparents. She stated that the children would also spend time with the deceased and their step siblings as well, as the deceased lived with his parents. Ms Lam had a civil relationship with the deceased, his wife and his parents and she did not mind Mya and Kayla spending time with them and building a relationship with their family.
Ms Lam stated that she had received payments by the deceased for Mya And Kayla through the Child Support Agency for periods from 1 January 2011 to 31 March 2012 and from July 2017 until his death. From about July 2017, the payments were $420 per year.
In her statutory declaration, Ms Lam stated that she was not a dependent of the deceased and she did not wish to make a claim for the lump sum compensation claim brought by the applicant in respect of the death of Quoc Thong Tran, but she did wish for Mya and Kayla to seek apportionment lump sum compensation and that they should also claim weekly compensation.

Statements of Quoc Khai Tran

Mr Quoc Khai Tran provided two handwritten responses dated 13 December 2018 to questions by SafeWork NSW. One handwritten response was on behalf of Spot On Constructions and the other was in his capacity as director of the first respondent. He also provided a handwritten response dated 13 December 2018 to a Notice to Give Information issued by SafeWork NSW. He also provided a signed notebook statement on the day of the accident. This statement will be referred to below in respect of the notebook of Inspector Sharon Cook.
Mr Quoc Khai Tran, in his handwritten response dated 13 December 2018 to questions by SafeWork NSW in relation to Spot On Construction, stated that he traded under the name Spot On Construction until 10 July 2017, when he changed to “A & C” (Abbey & Cruz Homes Pty Ltd). In my view, his answers were relevantly the same to the answers he provided in response to the questions put by SafeWork NSW to the first respondent, referred to below.
Mr Quoc Khai Tran stated that he was authorised to speak on behalf of the first respondent.
He was the sole director of the first respondent on 16 August 2017. His daily duties included carpentry work installing window frames. He stated that he ran the company as the sole director and shareholder. As at 16 August 2017, he had two “casual contractors”, being his father in law and cousin. Mr Quoc Khai Tran stated that as at 16 August 2017 he had financial control of the first respondent and was employed by the company.
Mr Quoc Khai Tran stated that the deceased was experienced in doing carpentry work and at the time of the incident the deceased was present with Mr Quoc Khai Tran’s father-in-law,
Mr Viet Ha Le, who often worked as a contractor. Mr Quoc Khai Tran stated that at the time of the incident the work was supervised by Mr Bobby Wang of WZY, who was responsible for the building work and supervising. In response to a question as to what steps did the first respondent take to ensure adequate supervision of the deceased at the time of the incident, Mr Quoc Khai Tran stated that the deceased had contracted casually with him for four years and he was very experienced on sites. Mr Quoc Khai Tran stated that the first respondent relied on the building contractor, Bobby Wang, for supervision of the work site.
Mr Quoc Khai Tran stated that the deceased was known to be experienced and adequately trained. He stated that the deceased and Viet Ha Le were on-site on the day of the incident to do carpentry work. He stated that both men had been working on the site on the day before and had simply attended again to complete their work.
In response to a question as to who employed the deceased and Mr Viet Ha Le on the day of the incident, Mr Quoc Khai Tran stated that both men were casual contractors for the first respondent. In response to a question as to how the first respondent ensured that the deceased was adequately trained and understood work requirements and risks at the site, Mr Quoc Khai Tran stated that he had known the deceased for several years and the deceased knew his work on a building site and was experienced and had worked for Mr Quoc Khai Tran as a contractor for four years.
Mr Quoc Khai Tran also stated that the site was not in the first respondent’s control and the first respondent was directed by WYZ that it was safe to work on.
In a handwritten “Schedule of Documents”, signed and dated 13 December 2018, in response to a Notice to Give Information to SafeWork New South Wales directed to the first respondent, it was stated that “I have no employees. I am the sole worker”. It was also stated that “I had no workers, Thong and Ha were contractors”. In response to a request for employment records of the deceased, it was stated that “he was a contractor”.

Statement of Viet Ha Le

Mr Viet Ha Le provided a handwritten response dated 22 April 2019 to questions by SafeWork NSW.
Mr Viet Ha Le stated that he was not able to read and understand the English language. He stated his native language is Vietnamese.
In response to a question as to whether at the time of the incident he was undertaking paid work for any entity, company, organisation or individual, Mr Viet Ha Le stated “no”.
At a later point in the same statement, Mr Viet Ha Le stated that the type of work that he was undertaking at the site on 16 August 2017 was timber work around windows. He also stated that the deceased, his nephew, told him what work he would be doing on 16 August 2017.

Statement of Jawad Fayazi

Mr Jawad Fayazi provided a signed statement dated 20 February 2018 in the form of responses to questions by SafeWork NSW. Mr Fayazi was the sole managing director of NSW Bricklaying Pty Ltd. His company was responsible for the laying of the subject brick wall on site.
In response to a question as to the relationship between his company and the first respondent in relation to the construction at the site, Mr Fayazi stated that he had no idea and had never heard of the first respondent. He stated that the second level of the brick partition wall began four days before the accident.

Statement of Jianen Wang

Mr Jianen Wang provided a signed statement dated 22 June 2018 in the form of responses to questions by SafeWork NSW. Mr Wang was the sole director of WYZ Development Pty Ltd. In response to a question as to what type of work his company conducted on 16 August 2017 at the subject site, Mr Wang stated that it was checking whether the contractors attended the site for EBC. Mr Wang stated that his company had no workers except for himself as a director.

In response to a question as to the relationship between Mr Wang, as director of his company, and the deceased in the work activity, Mr Wang stated that it was his understanding that the deceased was “one of A&C’s workers”.
In response to a question as to who was supervising the deceased at the time of the incident, Mr Wang stated that “A&C should supervise Mr Throng all the time”.
In response to a question as to who was involved in developing the system of work for the works being done by the deceased at the time of the incident, Mr Wang stated “A&C and EBC”.

Statement and notebook of Inspector Sharon Cook

Sharon Cook provided a statement dated 12 January 2018 and also a copy of her notebook. Inspector Cook was employed as an inspector with SafeWork NSW.
In her statement, Inspector Cook stated that she attended the subject building site on 16 August 2017 at 12:45 pm.
Inspector Cook stated that she observed and took possession of a brown tool belt and hammer in the area where the deceased was working. She stated that she contacted Mr Kai Tran by telephone who confirmed that the belt belonged to the deceased.
In her notebook entry, Inspector Cook noted that the deceased was a contract carpenter.
In another notebook entry, Inspector Cook took a signed notebook statement of Xuan Thai Binh Nguyen dated 16 August 2017. Mr Nguyen stated that he was employed by Spot On Construction, which was owned by Mr Quoc Khai Tran and had been employed for 2.5 years as a carpenter. Mr Nguyen stated that the worksite was construction of a duplex and he had started carpentry about three weeks before but had not worked every day at this site as he was also involved in building a duplex at the other end of the street. Mr Nguyen stated that he arrived at the site up the road at about 8 am with his boss, Khai Tran. He stated that as he was working he heard a loud noise and he looked down to the other site, that is the site of the incident and he saw that the double brick wall was shorter than it was that morning. He stated that he ran to the site and, after giving assistance to Ha, the old man, he saw the deceased’s tape measure and then saw the deceased and tried to give assistance.
In a further notebook entry, Inspector Cook took a signed notebook statement of Khai Tran on the day of the accident on 16 August 2017. That statement noted that Mr Khai Tran was a sole trader of Spot On Construction and now his only trading name was Abbey & Cruz Homes, which had been active only two months previously. Mr Khai Tran also stated that there were three workers, Ha Le, father-in-law, Binh, worker, and Tom Tran, cousin (the deceased). The statement also noted that the deceased had worked for Khai for a long time. I infer that Binh was Xuan Thai Binh Nguyen.
Mr Khai Tran also stated that he was very cautious about safety and he wished the deceased had been working on the other house with him. Mr Khai Tran also stated that he ordered everything and all deliveries. Mr Khai Tran also stated that the deceased was “working on the other house with us. We were all there yesterday… Why did it happen today.” Mr Khai Tran stated that he was engaged as subcontractors by Effective Building Construction at the accident site of 3 Berellan Street and another site at 5 Berellan Street. It was noted that
Mr Khai Tran was unable to continue with questions as he was extremely upset. It is also noted by Inspector Cook that the tool belt and hammer had been found on-site and Khai had been called but he said he was too upset to collect it.
I infer that Khai Tran is Mr Quoc Khai Tran. Although the statement of Mr Khai Tran was apparently not dated, the context and words of the statement indicated that it was taken and signed on 16 August 2017.

Statement and notebook of Inspector John Mizzi

John Mizzi provided a statement dated 9 October 2017 and also copies from his notebook. Inspector Mizzi was employed as an inspector with SafeWork NSW.
Inspector Mizzi stated that on 16 August 2017, in response to an incident notification, he attended the premises of Effective Building and Construction Pty Ltd at the subject address to investigate the incident involving the deceased.
In his notebook entry of 16 August 2017, Inspector Mizzi noted that after he observed the deceased on the site, he met Xuan Tuai Binh Nguyen, who requested retrieval of tools. Inspector Mizzi noted a list of tools, including saws, nail guns, drill, blower and tool bag.

Statement of Constable Shyam Singh

Constable Shyam Singh provided a statement dated 26 August 2017.
Constable Singh provided a background history of Viet Ha Le. Constable Singh stated that Mr Le does not speak or understand the English language and speaks Vietnamese. Constable Singh also stated that Mr Le worked full-time for the deceased, who was also his nephew. Constable Singh also stated that Mr Le worked as an unskilled labourer with the deceased at different construction sites and he performed duties as requested by the deceased. Constable Singh stated that these duties mainly involve cutting wood and hammering nails into the wood.
Constable Singh also stated that the deceased paid Mr Le in cash.

NSW Police Force Report of Death to the Coroner

Section 1 of this report described the deceased’s usual occupation as carpenter.
Relevantly, section 2.4 of the report provided a narrative of the circumstances under which the death took place. The report relevantly noted that the deceased worked as a Carpenter and was contracted by a building company, Effective Building & Construction to do wooden framework at a construction site on the subject premises.
The report also recorded that the accident happened at about 10 am when the brick wall collapsed onto the deceased and Viet Ha Le. The report also noted that police pulled the decease from under the rubble and performed CPR until Fire and Rescue and Ambulance arrived, who continued to perform CPR. After further efforts at resuscitation, the deceased was pronounced life extinct at 10.48 am by a medical practitioner.

Other relevant documents

Quantumcorp provided an investigation report dated 8 October 2018. Under the heading of “Alternative Employment” it was stated that there was no evidence of the deceased having any alternative employment. It was also stated that the insured (the first respondent) was legally represented by a firm of solicitors and that contacts with that firm has been unsuccessful. Attached to the investigation report were the ABN details of the deceased, current as at 4 October 2018, which disclosed that the ABN status had been active from 18 October 2013 as an individual/sole trader. Also attached to the report was a copy of the cheque referred to in the paragraph below, and which was identified as having a date of 10 August 2017.
Attached to the application was a copy of a cheque from the first respondent in the sum of $1000 made payable to the deceased. The cheque was dated 10 August, although I was not able to discern from that copy the final digit of the year. Elsewhere, the date was referred to as 10 August 2016 in the statutory declaration of the applicant noted above, although it was not disputed that this cheque was given to the applicant following the death of her husband. As noted in the previous paragraph, the Quantumcorp investigation report recorded the date of the cheque as being 10 August 2017. The latter date in my view is the correct date of the cheque, and the date noted by the applicant in my view is a typographical error.
The tax returns of the deceased were also attached to the Application and were the subject of submissions by the applicant. These tax returns, commencing with the 2013/14 year, show earnings from employment with Multigate, with a gap in time, it was submitted, due to the legal and rehabilitation issues that were described by the applicant at that time. Subsequent tax returns indicated that the applicant worked for Beta Trading as a warehouse assistant in the return for 2015/16 and that was his only income in the year preceding commencement with the first respondent.
Also attached to the application were bank statements for a joint bank account held by the applicant and her late husband. The applicant stated that this was the only bank account held by herself and her husband. The statements disclose salary deposits by Beta Trading in 2016, prior to commencement with the first respondent. They do not disclose any subsequent wage or other income payments, other than Centrelink payments.
As noted above in respect of the evidence of the applicant, attached to the application were copies of text messages between the deceased and Mr Quoc Khai Tran. These disclosed that upon return from the family holiday in Vietnam in May 2017, he requested work from
Mr Quoc Khai Tran, who directed him to attend for work at the subject premises and at the premises nearby.

Submissions on liability

It was submitted by the first respondent that the three main parties, that is the deceased,
Mr Quoc Khai Tran and Mr Viet Ha Le were all related. The deceased was a cousin of the director, Mr Quoc Khai Tran, of the first respondent, and Mr Quoc Khai Tran was the son in law of Mr Viet Ha Le, who in turn was said to be the uncle of the deceased. It was submitted that each of the members of the family have a vested interest in this case, which involves a substantial outcome.
The first respondent also submitted that the deceased had his own ABN which was active from 18 October 2013 as an individual or sole trader. The first respondent questioned why the deceased had an ABN if not to run his own business.
The first respondent also submitted that the case was made complicated because this is a matter where the deceased received payment for his services provided in cash, so there was no paper trail or bank records to be able to refer to establish what the relationship was. The insurer had difficulty obtaining basic information from Mr Quoc Khai Tran, who referred their investigator to his solicitors, who did not respond to enquiries. The first respondent questioned that position.
The first respondent submitted that the deceased was a contractor in the eyes of the director of the first respondent, Mr Quoc Khai Tran. The first respondent pointed to the statements of Mr Quoc Khai Tran
The first respondent also submitted that there was “no extensive statement” from Mr Viet Ha Le, a position which raised the question as to why. The first respondent submitted that the deceased was the employer of Mr Viet Ha Le.
It was submitted by the first respondent that the cheque for $1000 from the first respondent dated 10 August 2017 was also consistent with the deceased being a contractor of the first respondent, not an employee.
It was submitted that if it was found that Mr Viet Ha Le was employed by the deceased, then the deceased was not a deemed worker.
The applicant submitted while the deceased may have been a trader at the time of commencement of the ABN in 2013, he was not at the time of his death. The applicant referred to the deceased’s tax returns commencing 2013/14 to show that the deceased earned income from employment, not from trading as a business. Significantly, it was submitted, the evidence from the statement of the applicant was that the applicant had significant legal issues and was disqualified from driving from easter 2014 for an extended period until 2023.
The applicant submitted that the deceased and Mr Viet Ha Le were both contractors of the first respondent. The applicant submitted that Mr Quoc Khai Tran, director of the first respondent, accepted that both men were contractors of his company, and there was no suggestion that Mr Viet Ha Le was a contractor of the deceased. It was submitted that the deceased at the time of his death was working as a contractor of the first respondent and the deceased did not employ any person.
The applicant submitted that the evidence established that the first respondent provided tools and the deceased had no tools. It was also submitted that the text messages established a pattern over a continuous period of communication between the deceased and the director, Mr Quoc Khai Tran as to when and where the deceased should work.
The applicant submitted that this is consistent with the deceased being in a relationship with the first respondent of worker or deemed worker, not of an independent contractor. It was submitted that the deceased’s sole work was with the first respondent and, without a driver’s licence, he relied upon the first respondent or Mr Viet Ha Le or someone else to drive him to and from work.
The applicant submitted that while the first respondent attributed the state of evidence to a difficult family situation there has to be a Jones v Dunkel[1] inference arising from there being no evidence put on by the first respondent, in respect of Mr Quoc Khai Tran, other than that obtained in the SafeWork NSW investigation. It was submitted that the first respondent, as an insured, had obligations to cooperate with the insurer to provide a statement. It was submitted that there was some effort by the insurer at an early stage to obtain a statement from Mr Quoc Khai Tran, but there was no evidence of any further effort. It was submitted that this absence of evidence can only go to the fact that Mr Quoc Khai Tran has nothing to say to assist the first respondent’s case.
[1] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
The applicant also submitted that the statement of Constable Singh is hearsay evidence. It was submitted that Constable Singh’s was contrary to the clear admission by the first respondent that Mr Viet Ha Le was a contractor for the first respondent, not the deceased’s contractor, and also that the evidence was that the deceased was in a direct relationship with the first respondent either as an employee or a deemed worker.
The applicant submitted that the existence of the cheque was not disputed and it was rather a question of its significance. It was significant, it was submitted, because the cheque represents payment by the first respondent to the deceased.
The applicant also submitted that the statutory declaration of 26 May 2021, with attached joint account bank statements for the applicant and her husband, was evidence of regular deposits which were consistent with cash payments that the deceased was receiving from the first respondent.
The third respondent submitted that the evidence of the first respondent established that the deceased and Mr Viet Ha Le were each a contractor of the first respondent. This, it was submitted, was in stark contrast to the statement of Constable Singh. The third respondent submitted that there may have been some misinterpretation by Constable Singh, noting that Mr Viet Ha Le does not speak English well. The third respondent submitted that this misinterpretation may have been in respect of the word “for” instead of the word “with” when Constable Singh noted that Mr Viet Ha Le “works full-time for the Deceased”. It was submitted that Constable Singh also noted that Mr Viet Ha Le performed duties as requested by the deceased and that such duties mainly involve cutting Wood and hammering nails and also that the deceased paid Mr Viet Ha Le in cash. It was submitted that there was tension with the handwritten statement of the first respondent’s director in which it was said that
Mr Viet Ha Le was patently employed by the first respondent. The third respondent submitted that the statement of Constable Singh was hearsay and is of problematical weight in this regard.
The third respondent also submitted that the applicant’s statement of 26 September 2018 confirmed the receipt of the cheque of $1000 from the first respondent and is also evidence of exclusivity of employment of the deceased by the first respondent, or its previous guise of Spot On Construction. It was also submitted that the statement of the applicant confirmed that the only bank account held by the deceased and also by the applicant was the joint account. It was submitted that in the joint bank account statements that were in evidence there were no entries for wages paid by contractors for whom the worker might have been said to have been employed separately. It was submitted that the evidence indicates no record of payments or invoicing and accounts made out in the course of a regular business by the deceased.
The third respondent submitted that a Jones v Dunkel inference should be drawn against the first respondent because if it were the case that the deceased had been carrying on a business in his own right as a contractor and holding himself out to customers at large as a contractor or carpenter then it would be expected that he would have submitted invoices or accounts to the first respondent and such documents would have been produced by the first respondent in evidence, or at least produced its own record of documents in its own evidence, but there was nothing to that effect produced. This absence, it was submitted, fitted well with the applicant’s contention that the deceased was a contractor exclusively working for the first respondent, and as stated by Mr Quoc Khai Tran, such work was for about four years. It was submitted that this period of four years may well have been correct and although the deceased worked for a coffin making business for some of his employment history, it is not the case that he could not additionally work as a contractor separately at other times for the director of the first respondent.
The third respondent also submitted that the bank statements entries showed that the deceased received regular income from the time of working for Beta Trading and that this work was as an employee or common law worker. It was submitted that from time to time the deceased had regular employment but according to the evidence of the director of the first respondent he had worked for four years before the incident casually as a contractor. It was submitted that the evidence of the applicant was that the deceased had lost his drivers licence and when he worked for the first respondent his license had been suspended for many years and he had been transported to work by the director of the first respondent or
Mr Viet Ha Le Monday to Friday or Monday to Saturday. It was submitted that the evidence showed that there was exclusivity in the employment of the deceased by the first respondent.
The second respondent submitted that the tax returns of the deceased showed that the use of the ABN was historical. It was submitted that in 2016 his occupation was listed as a warehouse assistant in his tax return. It was submitted that the use of an ABN was not determinative. It is necessary to look at all of the circumstances of the arrangements between the deceased and the first respondent. The second respondent referred to the authorities and approach referred to in the decision of Malivanek v Ring Group Pty Ltd[2]. It was submitted that the evidence established that in going to work for the respondent the deceased’s only equipment was his boots. It was submitted that the statements from the SafeWork inspectors established that, on visiting the site of the accident, carpenters tools were found lying near the deceased and none had been taken to work by him. It was also submitted that the SafeWork inspector’s statement (Inspector Mizzi) there was a list of tools that had been found on site near the deceased, none of which had been taken by the deceased worker in his daily attendance at work for the first respondent. This was not an indication of an independent contractor’s relationship, it was submitted. The statement of Xuan Thai Binh Nguyen, it was submitted, was also evidence that work done by the deceased was part of the first respondent’s enterprise. It was submitted that the only contribution by the deceased to that enterprise was his labour. Further evidence that it was the system of work of the first respondent were to be found in the statements of Jianen Wang and Jawad Fayazi.
[2] [2014] NSWWCCPD 4 (Malivanek).

The fifth respondent submitted that, in addition to the other submissions and evidence referred to by the applicant and other respondents save the first respondent, the handwritten notebook of SafeWork Inspector Sharon Cook was significant, particularly the statement of Khai Tran that was contained within the notebook. It was submitted that this statement was given by Khai Tran to the SafeWork inspector on the day of the accident and that the relevant persons referred to in the statements were referred to as workers and not contractors. It was submitted that where there is any discrepancy between the statements of Mr Khai Tran, the statement on the day of the incident should be preferred. It was submitted that the notebook statement of Mr Khai Tran is evidence of the relationship between the deceased, the first respondent and Mr Viet Ha Le and that it is evidence of his care, custody and involvement with these workers, including the deceased. It was submitted that the evidence was that the tools and equipment with those of the first respondent rather than the deceased who only had a hammer and a tool belt. It was submitted that the contemporaneous handwritten statement of Mr Khai Tran should be accepted as evidence that he was telling the inspector the truth and that the first respondent was in control. It was submitted that it was not a situation where the deceased was a decisionmaker in relation to the work, who was working with materials provided by the first respondent and as directed by the first respondent as to the work site and work to be done.
The sixth respondent submitted that both the deceased and Mr Viet Ha Le were separate contractors employed by the first respondent. It was submitted that it was unlikely that the deceased would have paid Mr Viet Ha Le, as the final statement by the applicant in the form of the statutory declaration dated 26 May 2021, established that Mr Quoc Khai Tran and
Mr Viet Ha Le lived in the same house together and were related. It was submitted that the statement of Mr Quoc Khai Tran taken by Inspector Cook shows that the deceased and
Mr Viet Ha Le were independent contractors employed by Mr Quoc Khai Tran.

Findings and reasons

The first respondent invited the Commission to consider that this is a matter where family members, including the deceased, Mr Quoc Khai Tran and Mr Viet Ha Le, have a vested interest in a substantial outcome. However, I did not understand this general observation of the first respondent as being an attack on the evidence presented in this matter. It seemed to me that this general observation by the first respondent was a reason why the first respondent did not provide further material in its Reply, such as a further statement from
Mr Quoc Khai Tran, in addition to the statements contained in the police notebook and in the handwritten response to the SafeWork NSW inspector’s list of questions.
This submission by the first respondent in my view was made as an explanation to counter that an inference should be made pursuant to the rule in Jones v Dunkel.
The first respondent submitted there was a lack of a “paper trail” or documentary evidence between the first respondent and the deceased. However, in my view, there is sufficient evidence to assist in the determination of this matter.
The evidence was that the deceased activated an ABN in his own name as an individual/sole trader on 18 October 2013 and that ABN was current at the time of his death. There was no evidence that the applicant had a business name. The mere existence of an ABN is not determinative. As noted in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3)[3]:

“Each of these interpreters perceived themselves to be self-employed and had an ABN. Their evidence also indicated that they interacted with the ATO on the basis that they conducted a business. I attach little weight to those indicators. Obtaining an ABN is a simple process in which the existence of a business is not required to be demonstrated. Further, it is not surprising that in circumstances where these individuals perceived themselves to be self-employed that some of the regulatory requirements of a business were in evidence. For many of the witnesses, their self-assessment of themselves as independent contractors was largely based on their capacity to accept or reject work as it suited them. That self-assessment was also likely to have been significantly influenced by the characterisation of their status by On Call and other agencies. In the absence of other indicators of the existence of a business, the fact that some of the regulatory requirements of a business were in place, is likely to have had more to do with an incorrect self-assessed conclusion of the existence of a business than the fact of such a business existing.”

[3] [2011] FCA 366 at [244] per Bromberg J.

The observation by the Federal Court of Australia in the preceding paragraph in relation to an ABN was referred to with approval in the Workers Compensation Commission in the presidential decision of Amalgamated Pest Control Pty Ltd v Chaaya[4].
[4] [2015] NSWWCCPD 53 at [85].
The individual tax returns of the deceased for 2014 (1 July 2013 to 30 June 2014), 2015 (1 July 2014 to 30 June 2015), 2016 (1 July 2015 to 30 June 2016) and 2017 (1 July 2016 to 30 June 2017) were in evidence. Each of these tax returns disclosed income from salary or wages as a warehouse assistant for entities with an ABN that were not the same as that of the deceased. None of these tax returns disclosed other income, with the exception of some income from distribution from a family trust, which was not the subject of specific submissions and is not relevant in this consideration. It was submitted that the tax returns of 2014 and 2015 disclosed income from employment with MultiGate and the tax returns of 2016 and 2017 disclosed income from employment with Beta Trading. This was not disputed by the first respondent. I find that the deceased was employed by MultiGate in the financial years ending 30 June 2014 and 30 June 2015 and by Beta Trading in the financial years ending 30 June 2016 and 30 June 2017, in the general occupational category of warehouse assistant.
The applicant in her statutory declaration and statement evidence stated that her late husband was disqualified from driving and faced legal issues and consequences in 2014 and was disqualified from driving until 2023. This was not disputed by the first respondent. I find that the deceased was disqualified from driving from 2014 until the date of his death.
The joint bank account statements of the applicant and her late husband for the period from September 2016 to September 2017 disclosed periodic cash deposits. The applicant stated that periodic deposits that she identified from 8 September 2016 to 3 July 2017 were deposits of her late husband’s cash wages from the first respondent after payment of household expenses. The first respondent did not dispute the applicant’s evidence in this regard, although I would note that the first respondent in disputing the nature of the relationship did not accept the description of “wages”. I find that the joint bank account statements and the applicant’s evidence in this regard establish that applicant’s late husband received cash payments from the first respondent.
The existence of the cheque dated 10 August 2017 was not disputed by the first respondent. Although the cheque might be consistent with differing explanations, including being consistent with the relationship of an independent contractor as the first respondent submitted, in my view the cheque was significant as evidence of payment by the first respondent to the deceased, as submitted by the applicant. In my view, the cheque adds weight to the evidence of the applicant that payments were made by the first respondent to her late husband and supports the finding that the first respondent paid the applicant’s late husband on a periodic basis.
The applicant annexed copies of text messages that she said were between her late husband and Mr Quoc Khai Tran. Mr Quoc Khai Tran was referred to as “Khai” in the text messages. The first respondent did not dispute the provenance or veracity of these text messages, nor the applicant’s evidence in this regard. The text messages commenced on 13 May 2017, with messages following on 15 May 2017, 21 May 2017, 27 May 2017, 9 June 2017, 10 June 2017, 23 June 2017, 27 June 2017, 30 June 2017, 13 July 2017 and 8 August 2017. The initial text messages in May 2017 were to the effect that the applicant’s late husband informed Mr Quoc Khai Tran that he was back and asking if they were working on the following Monday. Mr Quoc Khai Tran replied that they were working the following day, that is the Monday. This was in the context of the applicant’s evidence that she and her late husband and their children had been on a holiday in Vietnam and on their return her late husband asked Mr Quoc Khai Tran for work. The text messages also showed that Mr Quoc Khai Tran told the deceased as to when and where he would be working. In my view, this was not evidence of the deceased conducting a business independent of the first respondent. I find that the first respondent in the period from May to August 2017 directed the deceased as to the dates and locations of his work. In my view, this evidence also supports the applicant’s evidence as to the work arrangements between the first respondent and her late husband prior to the family holiday in Vietnam in April and May 2017. I find that the first respondent in the period from at least the middle of 2016 until April 2017 directed the deceased as to the dates and locations of his work.
The work relationship of Mr Viet Ha Le with the deceased and also with Mr Quoc Khai Tran was contested. The signed statement of Mr Quoc Khai Tran on the day of the accident, as contained in the notebook of Inspector Cook, was specific in identifying the workers of the respondent as being Mr Viet Ha Le (referred to as “Ha Le”), Binh and the deceased. The notebook statement of Xuan Thai Binh Nguyen (Binh) stated that employment details were with “Spot on Construction”, the predecessor trading name of Mr Quoc Khai Tran as noted in the notebook statement of Mr Quoc Khai Tran. Binh stated that he had been employed 2.5 years in the role of a carpenter. In his handwritten responses to the schedule of questions of SafeWork NSW, in respect of Spot On Constructions and in respect of the first respondent, Mr Quoc Khai Tran stated that he had two casual contractors, his father-in-law (Mr Viet Ha Le) and his cousin (the deceased). Mr Quoc Khai Tran described both Mr Viet Ha Le and the deceased as casual contractors for the first respondent. In my view, neither of the handwritten responses by Mr Quoc Khai Tran to the SafeWork NSW schedules of questions for Spot On Constructions and the first respondent indicate that Mr Viet Ha Le was employed or subcontracted by the deceased. In my view, both of these handwritten responses by
Mr Quoc Khai Tran indicate that Mr Viet Ha Le was a casual contract of the first respondent and not of the deceased. To that extent, in my view both the handwritten responses of
Mr Quoc Khai Tran were not inconsistent with his signed statement on the day of the accident that he had three workers, including Mr Viet Ha Le.
The first respondent also sought to rely upon the handwritten responses of Mr Quoc Khai Tran dated 13 December 2018 to a Notice to Give Information to SafeWork NSW, in which Mr Quoc Khai Tran stated that he had no employees and no workers, that the deceased and Mr Viet Ha Le were contractors and Mr Quoc Khai Tran was the sole worker of the first respondent. I prefer the statement of Mr Quoc Khai Tran on the day of the accident as to the nature of these working arrangements with Mr Viet Ha Le to this latter handwritten response to the SafeWork NSW Notice to Give Information, as was submitted by the sixth respondent. In my view the statement of Mr Quoc Khai Tran on the day of the accident was unambiguous as to the work arrangements. The statement of Mr Quoc Khai Tran on the day of the accident was earlier in time and was given directly to a SafeWork NSW inspector and signed by
Mr Quoc Khai Tran. On balance, the signed notebook statement of Mr Quoc Khai Tran on the day of the accident was more likely to be a more accurate description of the working arrangements with respect to the deceased and Mr Viet Ha Le, and, in addition, an absence of employment records is not inconsistent with those working arrangements.
The first respondent also submitted that evidence that the deceased was not a worker or deemed worker of the first respondent was in the notebook entry of Inspector Cook that the deceased was a “contracted carpenter” and also in the NSW Police Force Report of Death to the Coroner, which included in the narrative summary of the incident a statement that the deceased worked as a carpenter and was contracted by a building company “Effective Building & Construction” to do work at the construction site. I am not persuaded by this submission. The reference by Inspector Cook in her notebook entry to a contracted carpenter did not state the source of the information on which she relied. The signed notebook statement of Mr Quoc Khai Tran referred to the deceased as a worker. The police report to the coroner did not identify the source of the information, and the report summary was in my view in any event incorrect in referring to a company which was not named in any evidence before me as an entity to which the deceased was contracted.
The first respondent sought to rely on the handwritten responses of Mr Viet Ha Le to the SafeWork NSW questions in support of a submission that the deceased was the employer of Mr Viet Ha Le. I do not accept that submission. Those handwritten responses commenced with a statement that he was not able to read and understand the English language. There was no evidence as to whether or not Mr Viet Ha Le was assisted by an interpreter. The only question as to the work arrangements with the deceased on the day of the accident was a question as to who told Mr Viet Ha Le what work he would be doing on that day. The response was that it was the deceased, his nephew. There were no questions as to the work arrangements between Mr Viet Ha Le and the first respondent. Mr Viet Ha Le also stated that he did not know who was supervising him on the day of the accident nor who was supervising the deceased at the time of the incident. In my view, the handwritten responses of Mr Viet Ha Le to the SafeWork NSW questions do not indicate an employment or subcontracting arrangement with the deceased.
The applicant also gave evidence that Mr Viet Ha Le did not speak English and her late husband often partnered with him because of this. The applicant also stated that Mr Viet Ha Le lived in the same house as Mr Quoc Khai Tran. This evidence was not disputed by the first respondent. In my view, it is likely that Mr Viet Ha Le was under the direction of Mr Quoc Khai Tran. In my view it is also unlikely that the deceased paid Mr Viet Ha Le in these circumstances, given his own domestic arrangements and the fact that Mr Viet Ha Le lived in the same house with Mr Quoc Khai Tran. I accept the submissions of the applicant in this regard.
The statement of Constable Shyam Singh was relied upon by the first respondent as evidence that Mr Viet Ha Le worked full-time for the deceased, that he was directed by the deceased in his duties and that he was paid by the deceased in cash. The statement of Constable Singh in this regard was objected to by the applicant and the third and other respondents as being hearsay. I accept the submissions of the applicant and other respondents in this regard. I do not place any weight upon the statement of Constable Singh in this regard.
The first respondent submitted that it was questionable as to why there was no “extensive statement” from Mr Viet Ha Le in evidence, if he were in the position to be able to provide information to assist with the proposition that the deceased was a worker or deemed worker. I did not understand this to be a submission by the first respondent that an adverse inference against the applicant should be drawn. In any event, I do not accept this submission. The evidence indicated that Mr Viet Ha Le was an old man who did not speak or understand English and who was the uncle of the deceased. He was with the deceased at the time of the accident and the evidence was that he was in a state of shock as a result. There was no evidence before me that Mr Viet Ha Le was not cooperative with the insurer’s investigation. Indeed, the Quantumcorp factual investigation report did not mention Mr Viet Ha Le as being a person relevant to the matter. In my view, the evidence of Mr Viet Ha Le was such that it was equally open to the first respondent to pursue and provide a further statement of Mr Viet Ha Le.
I find on the balance of probabilities that Mr Viet Ha Le was not an employee or subcontractor of the deceased. I also find on the balance of probabilities that Mr Viet Ha Le worked for the first respondent and not for the deceased.
In relation to tools, the applicant’s evidence was that the applicant did not take tools to work with the first respondent and the only safety equipment that he took to work were his boots. The applicant also said that Mr Quoc Khai Tran provided a tool belt and tools to her late husband at work. This evidence was not disputed by the first respondent. The second respondent submitted that SafeWork NSW Inspector Mizzi in his notebook on the day of the incident recorded a list of tools that had been requested for retrieval by Xuan Thia Binh Nguyen, who had been working on the other site nearby and who had observed a ladder at the accident scene. The list of tools included saws, a tool bag, a drill and a ladder. The second respondent submitted that the deceased had not left for work that day with any tools or safety equipment other than his boots. This evidence was not disputed by the first respondent. I find that the deceased did not provide his own tools for his work with the first respondent. I also find that the first respondent provided tools to the deceased for his use in his work for the first respondent. In my view, Xuan Thia Binh Nguyen also worked as an employee or contractor of the first respondent. He stated that he was an employee of the first respondent and he regarded Mr Quoc Khai Tran as his “boss” and Mr Quoc Khai Tran in his statement of the day of the accident regarded him as one of his workers. In my view, when Xuan Thia Binh Nguyen asked Inspector Mizzi for retrieval of the tools he was asking for retrieval of the tools of the first respondent.
In relation to the first respondent’s submission that the deceased was an independent contractor or conducted business on his own account at the time of his death, both the applicant and the third respondent submitted that a Jones v Dunkel inference should be made as noted above. I accept those submissions. In my view, there was insufficient explanation provided by the first respondent in relation to the further efforts to obtain a further statement from Mr Quoc Khai Tran or to obtain documents in the possession of the first respondent, such as invoices from the deceased or documents generated by the first respondent evidencing a business relationship with the deceased. The Quantumcorp report provided some explanation of efforts to contact Mr Quoc Khai Tran, but it was reported that the investigator was instructed to cease investigations on 26 September 2018. There was no evidence or explanation of any attempts to obtain information from Mr Quoc Khai Tran after that date. In my view, it is insufficient to point to a generalised perception of difficulties arising from family relationships between the deceased, Mr Quoc Khai Tran and Mr Viet Ha Le. It seems to me that an inference in accordance with Jones v Dunkel should be made in these circumstances. I infer that a further statement or evidence from Mr Quoc Khai Tran would not have assisted the first respondent’s case that the deceased was not a worker or deemed worker. I am also able to draw an inference, with greater confidence, on the basis of the notebook statement of Mr Quoc Khai Tran on the day of the accident, that the deceased was a worker or deemed worker of the first respondent.[5]
[5] Kuhl v Zurich Finance Australia Ltd [2011] HCA 11 at [62].

There was no evidence of an acceptable standard before me that the deceased conducted a business of his own accord while he worked for the first respondent. There is no evidence of an acceptable standard before me that the deceased held himself out as an independent contractor or as a business, nor that he worked for or with other entities, at least from July 2016. I have preferred the signed notebook statement of Mr Quoc Khai Tran on the day of the accident to his later response to the Notice. The evidence was that the deceased worked in employment from July 2013 with MultiGate and then with Beta Trading. Mr Quoc Khai Tran referred to the deceased working with him for a period of four years, indicating some overlap in the period of work with Beta Trading. This in my view is not inconsistent with employment with both Beta Trading and the first respondent, when it was trading in its previous guise as Spot On Construction. Significantly, in my view, the deceased was disqualified from driving from 2014 and in his work with the first respondent he was transported to and from work by either Mr Quoc Khai Tran, Mr Viet Ha Le or Binh. This in my view is consistent with an employment relationship and not a relationship of independent contractor or business. The deceased did not provide his own tools. There is no evidence that the deceased issued invoices to the first respondent. There is no evidence that the deceased worked for other contractors from at least July 2016 and probably earlier. The Quantumcorp report acknowledged that there was no evidence of alternative employment.
The evidence in my view supports a conclusion that the deceased did not work as an independent contractor or as a business from the time that he was disqualified from driving in 2014. In my view, the existence of an ABN that was registered by the deceased was historical and was outweighed by the matters considered above.
In relation to the issue of “worker” or whether there was an employment relationship between the first respondent and the deceased, there are a number of indicia of employment that should be considered.[6] One of the indicators of an employment relationship is the employer’s right of control.
[6] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16.
In considering whether the relationship between the first respondent and the deceased was one of employment, it is necessary to consider whether the first respondent had the right of control of the deceased. Mr Quoc Khai Tran in his evidence indicated that the deceased was very experienced on sites and that the first respondent relied upon the building contractor for supervision of the work site. This indicates that the first respondent did not provide actual supervision on the work site on the day of the accident. However, this is not determinative of the question of control. As observed in Humberstone v Northern Timber Mills[7],
“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”
[7] [1949] HCA 49; (1949) 79 CLR 389.
As I have found above, the first respondent directed the deceased as to the dates and locations of his work. The applicant also stated that her late husband was required to seek permission from Mr Quoc Khai Tran if he wished to cease work early or for a period during the day, including on the day of the accident. This was not contested by the first respondent. Mr Quoc Khai Tran in his signed notebook statement on the day of the accident stated that
“I order everything – all deliveries”. Mr Quoc Khai Tran in the same statement said that “I am very cautious about safety”, indicating in my view that he was cautious about safety of the deceased. Mr Jianen Wang, director of WYZ, stated that he understood that the deceased was one of the workers of the first respondent and that the first respondent should have supervised the deceased. In my view, the first respondent had the right of control of the deceased in his work, and that such control could be exercised in matters such as the date and location of work, the provision of materials, and time off work. As observed in Zuijs v Wirth Bros Pty Ltd[8]:
“The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters.”
[8] [1955] HCA 73; (1955) 93 CLR 561 at [571].
As I have found above, the deceased did not provide his own tools for his work with the first respondent. This in my view also is an indicator of an employment relationship between the first respondent and the deceased. Additionally, I have found that the first respondent provided the deceased with tools for the performance of his work with the first respondent. This is also an indicator that there was an employment relationship between the first respondent and the deceased. The first respondent also ordered all materials for the work.
In my view there was also exclusivity in the work performed by the deceased for the first respondent. The first respondent arranged for transport of the deceased to and from work, which was performed from Monday to Friday or Saturday. There was no evidence of invoices submitted by the deceased to the first respondent. There was no evidence of payments to the deceased by any other contractor.
The remuneration paid by the first respondent to the deceased in my view also indicated an employment relationship. Although it was generally in cash, it was also paid by way of the cheque dated 10 August 2017. The payments by the first respondent were also regular, with the evidence of the applicant being of regular deposits to the joint bank account, after payment of household expenses.
In my view, there was an obligation to work. The evidence of the applicant was that her late husband was required to seek the permission of Mr Quoc Khai Tran for taking time off work or time off during the day.
There was no evidence that the first respondent deducted income tax from payments made to the deceased, nor was there evidence as to a right to delegate work or of dismissal, nor for the provision of holidays.
As observed in Malivanek,[9]:
[9] At [181-182].
“182. Consistent with this approach, Buchanan J (Lander and Robertson JJ agreeing) observed in ACE Insurance Ltd v Trifunovski [2013] FCAFC 3 ([93]) that in Hollis ‘a real emphasis was authoritatively placed on the notion of working in the business of another, rather than in the business of the individual’. This statement attempts to overcome the broad, and often unhelpful and imprecise, ‘multi-factorial’ approach developed in Stevens v Brodribb.
183. As Bromberg J explained in On Call Interpreters, while the majority in Hollis applied a multi-factorial approach, they provided a ‘focal point around which relevant indicia can be examined’. His Honour added, at [207]:
‘That focal point has been elsewhere expressed as the ‘ultimate question’ posed by the totality approach: Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 at [34] (referred to with approval by Crispin P and Gray J in Yaraka Holdings Pty Ltd v Gilgevic (2006) 149 IR 339 at [303]); and see Sappideen C, O’Grady P and Warburton G, Macken’s Law of Employment, (6th ed, Lawbook Co., 2009), at [2.80]. As Wilson and Dawson J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 observed at 35 ‘the ultimate question’ was posed by Windeyer J in Marshall v Whittaker’s Building Supply Co Ltd (1963) 109 CLR 210 at 217, in a passage which the majority in Hollis strongly endorsed at [40]. The majority in Hollis (citing Windeyer J) said, the distinction between an employee and an independent contractor is ‘rooted fundamentally’ in the fact that when personal services are provided to another business, an independent contractor provides those services whilst working in and for his or her own business, whereas an employee provides personal services whilst working in the employer’s business: at [40]. Unless the work is being provided by an independent contractor as a representative of that entrepreneur’s own business and not as a manifestation of the business receiving the work, the person providing the work is an employee: Hollis [39], [40], [47], and [57] and see Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at [30]-[32]. The English courts have taken a similar approach. There the ‘entrepreneur test’ seems to be the dominating feature: Selwyn NM, Laws of Employment (2006) Oxford University Press at [2.34].
[208] Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:

(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?

If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.’ (emphasis added)”

In my view, the indicia that I have discussed above indicate that the deceased was not performing the work of an entrepreneur who owns and operates a business while he worked for the first respondent. In my view, the indicia above also indicate that while the deceased worked for the first respondent he was working for the business of the first respondent and not in and for his own business.
I find that the deceased was a worker and was employed by the first respondent at the time of his death. Notwithstanding the section 78 notice, there was no evidence that the death of the deceased did not result from injury in the course of his work on 16 August 2017. There was no submission on the part of the first respondent that the deceased’s death did not result from injury for the purposes of section 25 of the 1987 Act. The evidence unequivocally established that death resulted from injury at work on 16 August 2017.
If I am found to be wrong in finding that the deceased was a worker at the time of his death, then in my view he was a deemed worker pursuant to clause 2 of schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which provides:
“(1)    Where a contract—
(a)to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b)(Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
(2)     (Repealed)
(3)     A person excluded from the definition of worker in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”
It must be established[10] that:
“(1)    he (or she) was a party to a contract with the respondent to perform work;
(2)     the work exceeded $10 in value;
(3)     the work is not work incidental to a trade or business regularly carried on by the deceased in his (or her) own name or under a business or firm name, and
(4)     the deceased neither sublet the contract nor employed workers in the performance of it.”
[10] Scerri v Cahill (1995) 14 NSWCCR 389.
In my view, the deceased was a party to a contract with the first respondent to perform work at the time of his death. The contract was not in written form, but in my view it was evidenced by the cheque of the first respondent payable to the deceased dated 10 August 2017, the evidence of the applicant that her late husband worked for the first respondent on a regular basis and was regularly paid cash for his work, and the statements of Mr Quoc Khai Tran that the deceased worked for him and also that the deceased was a contractor of the first respondent.
In my view the work exceeded $10 in value. The cheque dated 10 August 2017 was for one thousand dollars in respect of work done by the deceased for the first respondent. The regular payments by the first respondent to the deceased also exceeded $10.
I have found that the work that the deceased performed for the first respondent was not incidental to a trade or business regularly carried on by the deceased in his own name or under a business or firm name.
I have found that the deceased did not sublet the contract nor did he employ Mr Viet Ha Le in the performance of it. There was no evidence of any other person to whom the deceased may have sublet the contract or employed in the performance of it. I find that the deceased did not sublet the contract nor did he employ any worker.
I also find that the deceased’s work was for more than five days as the evidence of the applicant and the first respondent was that he worked for the first respondent at least from July 2016 until the date of the accident.

Dependency

There was no dispute as to issues of dependency. The fourth respondent stated that she was not dependent upon the deceased at the time of his death and that she did not wish to make a claim and her only interest was with respect to the claims for dependency of her daughters, the fifth and sixth respondents.
The applicant married her late husband in 2011. She stated that her late husband would look after the family medical and dental expenses and all household and personal items and he would also pay rent of $200 per week for the housing and pay all utility accounts. The applicant stated that she was not working when her husband passed away as she was looking after her two small children and was assisting with the running of the household. The applicant also gave evidence that she had an expectation that she and her late husband would buy a house and also experience travel and normal family activities that they had planned for the future. I find that the applicant was totally dependent upon the deceased at the time of his death.
The second and third respondents are the daughters of the deceased and the applicant. The second respondent was born in 2014 and is now seven years of age. The third respondent was born in 2016 and is now four years of age. From the applicant’s evidence noted above,
I find that the second and third respondents were each totally dependent upon the deceased at the time of his death.
The fifth and sixth respondents are the daughters of the deceased and his former de facto spouse, the fourth respondent. The fifth respondent was born in 2004 and is now 17 years of age. The six respondent was born in 2005 and is now 16 years of age. The applicant stated that the deceased would also pay child maintenance to the children of his former relationship, the fifth and sixth respondents. The fourth respondent stated that she had a civil relationship with the deceased, his parents and his wife and she did not mind her daughter’s spending time with them and building a relationship with their family. She stated that in or around 2010, following a letter from the Child Support Agency an assessment was made of Child support payments by the deceased. Child support payments were made by the deceased for the period from 1 January 2011 to 31 March 2012 and then again from about July 2017 until his death. Both the fifth and sixth respondents are full time high school students. I find that the fifth and sixth respondents were partially dependent upon the deceased at the time of his death.
The deceased’s parents, Mrs Bich Lien Tran and Mr Van Thinh Tran each provided a statutory declaration that they were not dependent upon the deceased and did not wish to make a claim.
I find that there were no other persons who were dependent upon the deceased at the time of his death.

Apportionment

Compensation payable pursuant to section 25(1)(a) of the 1987 Act as at 16 August 2017 is $775,600.
Apportionment was agreed between the dependents as follows:
(a)    applicant – $500,000;
(b)    second respondent – $83,000;
(c)    third respondent – $95,650;
(d)    fifth respondent – $50,000, and
(e)    sixth respondent – $46,950.

In my view, the agreed apportionment is appropriate. Pursuant to section 85 of the 1987 Act, payments of each of the above lump sum apportionment amounts in respect of the second, third, fifth and sixth respondents are to be made to the NSW Trustee.

Weekly Compensation

The fourth respondent in her statement dated 29 June 2021 stated that both her daughters, the fifth and sixth respondents, are full-time high school students. The fifth respondent is in year 12 and the sixth respondent is in year 11.
Weekly compensation is payable in respect of each of the second, third, fifth and sixth respondents from 16 August 2017 to date and continuing at the relevant statutory rate pursuant to section 25(1)(b) of the 1987 Act. The weekly payment to each dependent child is at the following rates and periods, as adjusted from time to time:

16 August 2017 to 30 September 2017 $138.90

1 October 2017 to 31 March 2018 $140.00

1 April 2018 to 30 September 2018 $141.80

1 October 2018 to 31 March 2019 $142.90

1 April 2019 to 30 September 2019 $145.00

1 October 2019 to 31 March 2020 $146.20

1 April 2020 to 30 September 2020 $148.10

1 October 2020 to 31 March 2021 $149.30

1 April 2021 to (as adjusted) $150.20

Pursuant to section 31(1)(a) of the 1987 Act, weekly compensation shall be paid to the surviving parent of each dependent child. Accordingly, weekly compensation in respect of the second and third respondents shall be paid to the applicant, and weekly compensation in respect of the fifth and sixth respondents shall be paid to the fourth respondent.

Funeral expenses

From 5 August 2015 the maximum amount pursuant to section 26 of the 1987 Act for funeral expenses is $15,000. There has been no adjustment to this amount.
Receipts provided with the Application show that funeral expenses were about $27,000. Those receipts were addressed to the Mr Van Thinh Tran, the deceased’s father.
Accordingly, the respondent is to pay the amount of $15,000 in respect of funeral expenses.

Interest

The applicant and the second to sixth respondents sought an order for interest pursuant to section 109 of the 1998 Act.
The second respondent submitted that the applicant’s solicitor submitted a letter of claim to the insurer dated 16 July 2018 in which particulars of the claim for death benefits were provided. It was submitted that it was at that time that the claim was duly made for the purposes of a claim for interest pursuant to section 109 as on that date the insurer was in a position to know the extent of dependency, that is the applicant and the deceased’s four daughters. It was submitted that interest should run from that date at a rate that is in a range of a discretionary rate of 2 to 3% per annum. It was submitted that should interest be awarded then the amount of interest should be apportioned in accordance with the agreed apportionment noted above.
The first respondent submitted that evidence in this case was still being accumulated as recently as the last couple of weeks prior to the conciliation and arbitration hearing. The Application of this matter was not filed until 27 January 2021. It was submitted that if any interest were to be ordered that it would be more appropriate that interest be paid at a rate of 2% from the time of the filing of the application at the latest.

In my view interest pursuant to section 109 should be awarded. In my view the claim was duly made on 16 July 2018. Further, as noted above, the Quantumcorp factual investigation report of 8 October 2018 recorded that they were instructed by the insurer to close the investigation on 26 September 2018 following a lack of response from the solicitor for
Mr Quoc Khai Tran. The section 78 notice was not issued until 8 July 2019. The section 78 notice did not dispute dependency and erroneously disputed that death resulted from an injury for the purposes of section 25 of the 1987 Act. The section 78 notice also relied upon the ABN which in my view without more was a tenuous argument. The section 78 notice also pointed to a lack of information including particulars of the ABN (which the insurer had courtesy of its investigation report) and details of the deceased’s contract of employment with the first respondent (which it should have been aware was not a written contract courtesy of its own factual investigation report and of the applicant’s statement provided with the letter of claim). The section 78 notice referred to attempts by the insurer’s solicitors to follow-up with correspondence requesting information which was not provided. The section 78 notice also simply stated that similar information had been unsuccessfully sought from the first respondent. There was no explanation as to the nature and extent of such seeking of information from the first respondent, nor of any further steps that would be taken in this regard. Although the insurer was entitled to investigate the claim, as it did initially, the investigation by Quantumcorp ceased in September 2018 and a section 78 notice was not issued until July 2019. In my view the insurer had sufficient information, including dependency information, to be properly on notice from 16 July 2018.
The respondent is to pay interest on the section 25(1) amount, and on the section 25(2) weekly payments for each of the second, third, fifth and sixth respondents for the entire period. The period of the interest is to run from 16 July 2018 to the date of this determination. In my view, the reference point for the rate of interest should be that set by the Supreme Court of NSW in accordance with its Practice Note SC Gen 16. Given that the Supreme Court interest rate is at a somewhat higher rate than the discretionary amount proposed in submissions, in my view a rate of interest of 3% per annum is reasonable. The total interest amount is to be apportioned according to the same apportionment ratio agreed between the dependents above in respect of the section 25(1) sum.
The respondent is to pay Mr Van Thin Tran interest on the section 26 funeral expenses amount of $15,000 at the rate of 3% per annum from 16 July 2018 to the date of this determination.

Ambulance expenses

The Application attached a tax invoice for ambulance expenses, although this was not claimed as part of the application, presumably because the relevant form did not allow for such a claim. There were no submissions in this regard.
In my view, it is not necessary to make an order in this regard, as the insurer should consider payment in light of the findings in this decision.

16 August 2017	to	30 September 2017	$138.90
1 October 2017	to	31 March 2018	$140.00
1 April 2018	to	30 September 2018	$141.80
1 October 2018	to	31 March 2019	$142.90
1 April 2019	to	30 September 2019	$145.00
1 October 2019	to	31 March 2020	$146.20
1 April 2020	to	30 September 2020	$148.10
1 October 2020	to	31 March 2021	$149.30
1 April 2021	to	(as adjusted)	$150.20

[2021] NSWPIC 305

25 August 2021