Northern Beaches Services Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Northern Beaches Services Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 289
APPLICANT:	Northern Beaches Services Pty Ltd
RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	20 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application pursuant to section 145(3) to dismiss notice issued by respondent pursuant to section 145(1); applicant disputed jurisdictional precondition that employer be uninsured at relevant time; whether there was an employer (labour hire company) for the purposes of section 140; employment; injury; substantial contributing factor; weekly benefits; medical expenses; and whether the respondent was able to rely on first statement of principal, provided to factual investigator engaged on behalf of respondent; consideration of WorkCover Authority of NSW v Mackley, Kula Systems Pty Ltd v Workers Compensation Nominal Insurer, Sun Alliance & Royal Insurance Australia Ltd v WorkCover Authority (NSW), WorkCover Authority of New South Wales (on behalf of the Workers Compensation Nominal Insurer) v Sadler, Personal Injury Commission Rules 2021 and Procedural Direction PIC 4; expert witness evidence; statement of principal of applicant provided to investigator admitted; Held – worker was employed by applicant; worker sustained injury arising out of or in the course of employment with applicant; employment was substantial contributing factor to injury; appropriate weekly benefits paid; medical and related treatment reasonably necessary; applicant to reimburse respondent the sum of $39,633.87 pursuant to section 145(4).
determinations made:	1. Pursuant to s 145(4) of the Workers Compensation Act 1987, the applicant is to reimburse the respondent the amount of $39,633.87.

STATEMENT OF REASONS

BACKGROUND

The applicant, Northern Beaches Services Pty Ltd (Northern Beaches Services), did not at the relevant time hold a policy of insurance for workers compensation.
Mr Michael Proud (the claimant/Mr Proud) claimed that he was employed by Northern Beaches Services, and on 24 April 2021, he sustained injury to his left knee.
On a date that is unclear from the evidence, Mr Proud made a claim on the respondent, Workers Compensation Nominal Insurer (iCare).
ICare accepted liability for Mr Proud’s claim and has made payments to, for, and on his behalf.
On 17 June 2022, iCare issued the applicant with a Notice to Reimburse (the s 145 notice), pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act).
The s 145 notice sought reimbursement of $39,633.87.
The applicant lodged a Miscellaneous Application (the Application) on 14 July 2022.
The applicant denied that Mr Proud had sustained the alleged injury; denied employing
Mr Proud; maintained that it could not reasonably have expected itself to be regarded as an employer at the time of the alleged injury; maintained that Mr Proud was not injured on its premises; denied liability for the injury; and denied the quantum of the claim for reimbursement.
The respondent lodged its Reply on 26 July 2022.
On or about 28 October 2022, the applicant filed an undated and unsigned Amended Application (the Amended Application).
The Amended Application, in addition to the matters already pleaded, disputed (in Annexure A) the following:
(a)    whether, for the purposes of Part 4, Division 6 of the 1987 Act there was in fact an uninsured liability;
(b)    whether the respondent satisfied the jurisdictional precondition to invoke power under Part 4, Division 6 of the 1987 Act, namely that an employer was uninsured at the relevant time and/or that after due search and inquiry an employer could not be identified;
(c)    whether Serendipity (WA) Pty Ltd trading as AM Employment Services [sic: APM Employment Services (APM)] was a s 20 1987 Act principal for the purposes of s 140 of the 1987 Act; further or in the alternative;
(d) whether APM was an employer for the purposes of s 140 of the 1987 Act pursuant to schedule 1.1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(e)    whether APM was an employer for the purposes of s 140 of the 1987 Act pursuant to schedule 1.2A(1) of the 1998 Act;
(f)    whether the respondent was for the purposes of s 142A [of the 1987 Act] the relevant insurer of the relevant employer at the relevant time;
(g)    whether the payment made to the worker by the respondent was ultra vires Part 4, Division 6 of the 1987 Act and not a payment for the purposes of s 145 of the 1987 Act that can be reimbursed;
(h)    further and/or in the alternative whether the payment made and claimed was in respect of a worker, and/or an injury and/or suffered in the course of employment and/or to which employment was a substantial contributing factor to any injury within the meaning of the 1987 Act;
(i)    whether the payment claimed was in respect a [sic] of any reasonably necessary medical treatment and/or incapacity within the meaning of the 1987 Act;
(j)    whether the demand in the certificate dated 17 June 2022 claiming reimbursement under s 145 of the 1987 Act is null and void as ultra vires Part 4, Division 6 of the 1987 Act;
(k)    whether the respondent knew or has had [sic] reason to believe that the demand and certificate were null and void as ultra vires Part 4, Division 6 and the that [sic] respondent was not eligible to make or maintain a claim under s 145 of the 1987 Act, and
(l)    whether in maintaining the demand and claim when the respondent knew or had reason to believe the respondent was not eligible to seek reimbursement the respondent be ordered to pay the applicant’s costs of and incidental to the demand and the proceedings.
The Amended Application sought (in Annexure B) the following declarations:
(a)    the demand in the certificate dated 17 June 2022 claiming reimbursement under s 145 of the 1987 Act is null and void as ultra vires Part 4, Division 6 of the 1987 Act;
(b)    the certificate dated 17 June 2022 claiming reimbursement under s 145 of the 1987 Act is null and void as ultra vires Part 4, Division 6 of the 1987 Act, and
(c)    the respondent knew or had reason to believe that the demand and certificate were null and void as ultra vires Part 4, Division 6 of the 1987 Act and the respondent was not eligible to make or maintain a claim under s 145 of the 1987 Act.
The applicant sought an order that the respondent pay its costs of and incidental to the proceedings, pursuant to s 235B of the 1998 Act.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a)    whether the respondent had satisfied the pre-condition of non-insurance to enliven jurisdiction under Part 4, Division 6 of the 1987 Act;
(b)    whether Mr Proud was a worker employed by the applicant;
(c)    whether Mr Proud was a deemed worker of APM under a labour hire contract;
(d)    whether the statement of Sk Md Anisur Rahman, principal of the applicant, dated 24 June 2021 is admissible;
(e)    whether Mr Proud sustained injury on 24 April 2021;
(f)    whether employment was a substantial contributing factor to the injury, and
(g)    Mr Proud’s capacity to work.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for preliminary conference before me on 15 August 2022. Mr Georges appeared for the applicant, and Mr Dolan appeared for the respondent. Mr Rahman and
Mr Butcher of iCare also attended.
The applicant conceded that it was not insured at the relevant time, as its policy had lapsed.
Directions were made regarding the joinder of Mr Proud as the second respondent to the proceedings, and service of the Amended Application and the direction on him; and the matter was listed for further preliminary conference on 5 October 2022.
On 28 September 2022, a Disputes Service Officer sent an email to the applicant’s solicitor, requesting that she file a Certificate of Service, certifying service of the Amended Application on Mr Proud.
On 28 September 2022, the applicant’s solicitor requested that the timetable I had set at the preliminary conference on 15 August 2022 be varied. She had failed to comply with my direction to serve Mr Proud with the Amended Application and the direction. The respondent objected in part to the proposed revised timetable and suggested alternative orders.
On 4 October 2022, a further direction was issued, regarding service of the Amended Application on Mr Proud and listing the matter for further preliminary conference on
10 November 2022.
The matter was listed for further preliminary conference on 10 November 2022. Mr Hallion of counsel, instructed by Ms Sukkar, appeared for the applicant, and Mr Dolan appeared for the first respondent. Mr Proud appeared in person. Mr Rahman and Mr Butcher also attended.
Mr Proud advised that he had not been served with the pleadings. He had been advised of the preliminary conference by iCare.
Directions were made regarding service of the pleadings on Mr Proud, and for further conduct of the matter.
The matter was listed for further preliminary conference on 1 February 2023. Mr Hallion appeared for the applicant, instructed by Ms Sukkar. Mr Dolan appeared for the first respondent, and Mr Estephan appeared for the second respondent, Mr Proud. Mr Rahman and Ms Merchant of iCare also attended.
Mr Proud instructed his solicitor that he had no incapacity for work, was not having treatment, and had no intention of claiming compensation for permanent impairment. He did not feel that he needed to remain a party to the Application. The Application was therefore discontinued against him.
Mr Hallion and Ms Sukkar advised that the applicant had a further statement from
Mr Rahman to be filed and may seek to rely on further statements.
Directions were made for the filing and service of any further evidence, and leave was granted to the applicant to issue Directions for Production on Mr Proud’s treating medical practitioners. The matter was listed for conciliation/arbitration hearing on 4 April 2023. The parties were granted leave to request a further preliminary conference, as the respondent was yet to be served with the applicant’s additional evidence.
The matter was listed for further preliminary conference on 9 March 2023. The respondent had requested leave to issue a Direction for Production to APM. This was opposed by the applicant, so the respondent had requested a further conference.
Mr Hallion, instructed by Ms Sukkar, appeared for the applicant, and Mr Dolan appeared for the respondent. Mr Rahman was present, and Mr Butcher sent his apologies.
For reasons that were given at the preliminary conference, and recorded, leave was granted to the respondent to issue Direction for Production to APM. The time for production of documents pursuant to Directions for Production issued by the applicant to Drs Lee and Sivewright was extended to 23 March 2023. The parties were granted leave to request a further preliminary conference.
The matter was listed for conciliation/arbitration hearing on 4 April 2023 on the Teams platform. Mr Hallion, instructed by Ms Sukkar, appeared for the applicant; and Mr Doak of counsel, instructed by Mr Dolan, appeared for the respondent. Mr Rahman and Mr Butcher attended.
The respondent sought an adjournment to allow it to obtain evidence to respond to a statement by Mr Rahman regarding the circumstances in which he provided an initial statement to an investigator engaged on its behalf.
The applicant opposed the application for adjournment. It advised that it did not press its reliance on s 235B of the 1998 Act.
For reasons that were given at the hearing, and recorded, the application for adjournment was granted. Directions were made for the filing and service of any further evidence and written submissions. The parties were advised that at the conclusion of the period allowed for submissions, the dispute would be determined “on the papers”.
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)    Miscellaneous Application and attached documents;
(b)    Amended Miscellaneous Application and attached documents;
(c)    Reply and attached documents;
(d)    Application to Admit Late Documents dated 8 November 2022 and attached documents, filed by the applicant;
(e)    Application to Admit Late Documents dated 29 November 2022 and attached documents, filed by the applicant;
(f)    documents filed by the applicant, referred to as “submissions”, on 14 February 2023, attaching statements of Mr George Chiotis and Mr Rahman;
(g)    Application to Admit Late Documents dated 2 March 2023 and attached documents, filed by the applicant;
(h)    Applications to Admit Late Documents (2) dated 28 March 2023 and attached documents, filed by the applicant;
(i)    Application to Admit Late Documents dated 29 March 2023 and attached documents, filed by the respondent;
(j)    Application to Admit Late Documents dated 4 April 2023 and attached documents, filed by the applicant;
(k)    Application to Admit Late Documents dated 24 April 2023 and attached documents, filed by the respondent;
(l)    Application to Admit Late Documents dated 3 May 2023 and attached document, filed by the applicant, and
(m)     Application to Admit Late Documents dated 9 May 2023, filed by the applicant, attaching submissions.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of Michael Proud

Mr Proud’s statement is dated 2 June 2021.
He was registered with a job agency, APM, through Centrelink. The contact at APM was Sarah Elchami (Sarah). He had to attend the agency three times per week to look for employment.
He saw an advertisement on Gumtree, under the name “Anis”, asking for a store assistant to work in a Lakemba shop. He called the number and applied for the job.
He advised Sarah when he saw the job on Gumtree and had applied for it. He understood from Anis that he was interviewing three other people from Centrelink, as he wanted to use the subsidy, as half the wages would be paid by Centrelink.
He had to hand a sheet to Sarah to confirm positions he had applied for. He indicated he was keen on the job with Anis. She arranged an interview for him the next day, 14 April 2021.
On 14 April 2021, he went to the address at Lakemba as organised. He spoke to “Manuka” (Ms Manuka Subedi). He waited about 45 minutes until Anis arrived. During that time, he was chatting to Manuka about the job, and she was showing him how the ordering system worked. The business did mobile phone repairs and covers, and sold miscellaneous goods in bulk, directly or online.
Anis arrived at about 12:45 pm. He interviewed him for only about five minutes, asking about his employment history, health, why he wanted to work, and whether he was looking for a job straight away. He said he would get back to him.
On 16 April 2021, he went back to APM, looking for work, as was required. He found Sarah to hand in his forms for the job search. She told him Anis had contacted her and wanted to hire him.
Sarah had received a text message from Anis, which she forwarded to him. It listed three days, Monday and Saturday from 11am to 3:30pm, and Sunday from 11am to 5pm. It said if there were any changes, Anis would let Sarah know.
He worked on Monday 19 April 2021 from 11am to 3:30pm. Manuka was in the shop when he arrived. She showed him boxes of goods and told him Anis wanted them moved to the top storeroom. He did that work for that shift. Anis arrived about 40 minutes after he started and stayed until he left at 3:30pm.
As he had to report to Centrelink, he asked Anis what his pay rate was. He told him $20 per hour. He did not speak to him about tax, superannuation (super), or leave. Anis did not ask him to fill in any forms.
He reported to Centrelink on 22 April 2021 that he had completed five hours work (rounded up) the previous day, and his rate of pay.
On 22 April 2021, he had a missed call from Anis, who then sent him a text. He had said he would be open on Anzac Day, but the text said they would be closed on the Sunday. He was to go to work on 23 April 2021, as he wasn’t required to work on the public holiday.
He worked on 23 April 2021 from 11am to 5pm. He did the same work as on 19 April 2021. Anis was there all day. Manuka was not there.
He went to work on 24 April 2021, starting at 11am. Anis was there when he arrived, and his son, about three to four years old, was also there. Manuka was in the shop working.
He worked until 1:30 to 2pm, at which time he was injured. Anis wanted boxes moved from the back where the dock was, to a storeroom, and he did that work all morning, until he was injured.
He was putting a box down in front of him, in front of another box, and moving the boxes around. As he was standing straight, he pivoted his left leg out, his foot went onto a small piece of carpet, his foot slipped and his knee went to the left, then back to the right, and he fell onto the ground.
No one saw or heard him fall. He tried to get up himself and could stand but couldn’t weight bear on his left foot. About two minutes later, Anis came down and asked if everything was OK. He said, “no, I just fell over”. He said to take a few minutes to see if he would be all right and walked away.
He sat down and waited, trying to get better, trying to weight bear on his left leg, because he wanted to keep working there.
Manuka came down and he told her he had fallen and couldn’t weight bear on his left foot. She went to get Anis, and he asked him to call an ambulance. He said he would and went back upstairs.
At that time, he was still in the back storeroom, which was about 30m to 40m from the showroom. He hopped forward to the stairs and saw Anis standing there. Manuka was also there. He sat on the bottom stair, as he couldn’t stand any longer. Anis told him the ambulance was on its way.
He waited about half an hour and then asked Anis to call the ambulance again, which he did. He said there was a lot going on in the area, it could be a long wait, and the ball was in his court.
He decided if there wasn’t going to be an ambulance, he would get upstairs somehow, so he worked his way up “on my bum”. He asked Anis to call a taxi. He picked up a piece of wood and helped him hobble to the front of the shop, waiting 10 to 15 minutes for the taxi.
He saw another taxi passing, so he took it to Bankstown Hospital (Bankstown-Lidcombe Hospital). He had X-rays that found no fracture. His left leg was put in a brace, and he was sent home.
He returned to Bankstown Hospital on Monday and a nurse organised an MRI on
28 April 2021. That showed a fracture. He had another brace fitted to his left leg, which he still had fitted.
The only paperwork he signed for the job was with Sarah. That was for Centrelink and just confirmed he was working. He had a copy and would send them.
He did not have any other paperwork, but Manuka saw him working there on two occasions, including the day he was injured, and she knew he was injured.
He would provide the text messages that listed the days and hours he was to work for Anis. He was able to work anywhere else if he wanted, but his Centrelink contract only required him to work 15 hours per week, without affecting his benefits and concession cards.
He was to be paid on an hourly basis.
He called Anis on 26 April 2021 and told him his leg was still sore, he didn’t know what was wrong with it, and he would have to go back to the hospital. He told him he needed help, as he had to pay for an MRI. He said he didn’t work there, and he couldn’t help. He asked when he could collect his wages. He just said “Thursday”.

When he went to Bankstown Hospital, the triage nurse wasn’t sure whether to put it down as workers compensation or Medicare. He later received a call from “Sylvana” [sic: Savana] at the hospital. She asked for Anis’s number, and he gave it to her.
She called back about five minutes later, and told him Anis kept denying he worked there, and said he was a customer.
On 29 April 2021, he did not call Anis first, as he thought he would not stay at the shop if he knew he was coming. His mother drove him to the shop. She went inside and Anis came out with her. He asked for his wages. He counted out six $50 notes and handed them to him. His mother saw him hand him the cash. He said thanks and left with his mother.
He was not required to wear a uniform. He only worked there three days. He did not work for anyone else during that week.
The only other person working in the shop was [sic] Manuka, Anis, and there was one other person there on 23 April 2021, but he was not introduced and did not know her name.
He did not have any staff reporting to him. He did not have an ABN (Australian Business Number).
A copy of the Job Plan and the text messages are attached to the statement.

Evidence of Sk Md Anisur Rahman

Mr Rahman is the director and sole shareholder of the applicant. His first statement is dated 24 June 2021.
Michael Proud called him about a job he advertised on Gumtree. It was advertised as being for a part-time employee, for 20 hours [a week]. The employment was casual to start, and if the person was a good employee, he would put them on as a part-time or full-time employee.
Mr Proud rang him, said he was looking for work, and he wouldn’t need to pay full wages. Centrelink would pay the other half, under a subsidy.
He had a call from an agency in Bankstown. He could not remember the name of the person who called. She confirmed Michael Proud would be paid under the Centrelink subsidy. She took his details and said she would apply the job subsidy.
On 29 April 2021, he received an email from the agency, APM. He was waiting for the email to show Mr Proud was approved, so he could put his employee details on their system straight away.
Michael Proud turned up for an interview on 14 April 2021. He did not bring a resumé. He asked if he really wanted to work, or was it just that Centrelink sent him? He said, no, he wanted a chance, so they agreed for him to work there. He told Mr Proud he could start when the paperwork was organised.
Mr Proud sent him a text to the shop mobile, with his resumé, later that day.
He called the agency and said Mr Proud didn’t look physically fit to work. He didn’t look that well, and he was shaking. They said he might have been nervous.
He agreed for Mr Proud to start work. He was still waiting to hear from Centrelink. He offered a three day week, for a total of 15 hours, as the agency told him he could offer.
Mr Proud worked for two days. He could not remember the dates. He did not bring any paperwork and did not give him his tax file number (TFN).
Mr Proud came in on the third day to work, because they were closed on the Sunday because of Anzac Day. He was in the shop but had to take his son home. He left Michael Proud in the shop with his friend in charge. He told him to wait until he came back. He would then have told him what work he was to do.
His friend, Ken Georges (Ken), was in the shop at the time. He sometimes stopped in and visited, but he did not pay him.
Apparently, while he was out of the shop, Michael Proud fell over in the back of the shop. He did not know exactly where.
When he came back to the shop, Michael Proud was standing at the back of the shop and told him he had hurt his knees. He didn’t say anything was bad, so he didn’t worry about it. But after about five minutes, he asked if he could call an ambulance, because he couldn’t walk.
He called the ambulance and answered some questions. Michael Proud said he fell on his left side. He was sitting on the stairs in the shop.
He didn’t wait for the ambulance. He said he was impatient and was asking how long they would be. He called them back and they said they had other people to look after, and they had to wait. Mr Proud said something rude about the ambulance people and left. He got a taxi.
Nobody actually saw him fall. He asked Ken, and he said he didn’t hear any noise and didn’t see anything.
There was no employment contract signed by “the worker” or himself. APM asked how much he would pay him, and he said $20 per hour. They said they would pay $10 of that.
He received a resumé from Michael Proud. He asked him again by text to send his details so he could register him as an employee. He sent a text with an attachment. He was busy, and didn’t check until later, when he realised he had sent the resumé again, but no TFN.
The hours and days Mr Proud would work hadn’t been definitely agreed. He would decide that later, once the agency confirmed his employment details. He was paid on an hourly basis. He was not required to wear a uniform displaying any logo. He did not work regular hours, the hours had not been worked out definitely.
He did not know if Mr Proud worked for anyone else while working for him. He did not have any staff reporting to him.
He also had a friend, Manuka, there. She was in the shop at the time Michael Proud said he fell over, but she did not see anything either.
Michael Proud asked if he could work for cash. He told him he would not agree to that. He could not remember if he asked that before or after, when he said he had the fall.
After Mr Proud left the shop in a taxi, he contacted him by phone. He thinks it was on the Monday, and he asked for some money. He said he had been hurt, and wanted some money, and would get some treatment and find his own way, “or something like that”. He did say he wouldn’t be coming back for an insurance claim or any other work-related matters.
He asked how much he wanted for his treatment. He said $300. He agreed to give him $300.

100.Later, he received a call from a lady who said she was from Bankstown Hospital and was shouting at him. She said he could not have a worker without paperwork. He told her he came from Centrelink and was in the process of employment.
101.She kept “telling me a lot of story about how he couldn’t do this or that”. He didn’t expect that from a hospital person. She asked about the money, and if he didn’t work there, did he agree to pay him $300 to get him out of the way? He told her he agreed to pay him $300. He did not really know why the hospital person would be calling and asking him questions like that.
102.He didn’t understand why, if when Mr Proud left in the taxi, and Canterbury Hospital was just down the road, he received a call from someone who said they were from Bankstown Hospital. He never told the person from the hospital that Michael Proud was a customer.
103.Mr Proud came to the shop on a Thursday. He did not remember the date. His mother came into the shop. He went out to the door and handed him $300 cash. He said he would not go for any insurance claim. Mr Proud said good luck. He said, OK, if he got better, he could come back to work. Then he left.
104.It was of concern to him that, if Mr Proud did fall down that day, he didn’t want the ambulance to come.
105.Mr Rahman’s next statement is dated 7 February 2023. It has attached a photograph, which he stated was taken from Google maps, but the premises were the same in April 2021. It also attached drawings made by him of the floor plans, and photographs of the shop. There is some repetition in this statement.
106.On 24 April 2021, Mr Proud informed him that while at the company’s premises, he had twisted his left knee. After about 15 minutes, he requested he call an ambulance, which he did. Later that day, he received a call from Bankstown Hospital, after Mr Proud told them he was employed by him.
107.On or about 20 May 2021, he received a call from iCare informing him that Mr Proud claimed he suffered an injury while employed by the company. He disputed then that the company was an “employer”, as claimed in the notice dated 17 June 2022.
108.Mr Proud was present as part of a three day placement trial arranged through his employment agency, APM. A principal arrangement was made with the company, that APM would provide a subsidy to employ Mr Proud, subject to him satisfactorily completing the trial.
109.During the trial, Mr Proud was introduced to the purchasing and despatch systems used in the business. This was done at a desk, sharing a computer screen, in the shop. He was not required to do any job from which the company derived any benefit, nor did he receive any remuneration or payment in kind.
110.He knew who iCare was, as he had taken out a workers compensation policy after Mr Proud told him he had injured himself, and his landlord asked if he had insurance. This conversation took place shortly after Mr Proud left the premises. The landlord had come into the shop on the day of the alleged injury, as he had introduced him to an accountant who was renovating an office in the building that day.
111.The landlord told him he had had a contractor do work at a property, and he subsequently made a claim saying he had hurt himself. Ever since, he had taken out workers compensation insurance, even though he didn’t employ anyone.
112.He didn’t think Mr Proud was working for him and didn’t think much more of the landlord’s suggestion until he received a call from Bankstown Hospital asking details of his workers compensation insurance. Mr Proud had told them he was working for him. He told them he was on Centrelink. He could hear a woman in the background screaming, which was distracting the hospital lady while she was talking to him.
113.The next day, out of abundant precaution [sic] he called iCare and was given a policy that commenced from the next day, that is, 25 April 2021. Although he was ignorant of the requirement to have workers compensation insurance, he had relied on his insurance brokers, who advised him a Business Pack policy covered everything he needed. He only found out it did not include workers compensation from his solicitors in the preparation of this statement.
114.The accountants he used for the company, Safe Accountants, had an associated broker, Safe Insurance Brokers, who advised and placed the insurance he needed. He was never advised that the company was required by law to have a workers compensation policy.
115.In or around 20 May 2021, he received a call from iCare. He “again” told them he had not employed Mr Proud and he was trialling under a placement arranged with APM. He confirmed he had no agreement with Mr Proud to employ him at the time he claimed to have injured his knee. He again stated he was not there for the purpose of working and had not been paid wages.
116.On 26 May 2021, he received a call from a lady who introduced herself as Colleen Pont. She said she was an investigator for iCare. She said she wanted to come to the premises to take photographs as part of her investigation into Mr Proud’s injury. His solicitors had shown him a copy of the letter of instruction from iCare to Ms Pont, dated 24 May 2021. He could see she was aware he was disputing Mr Proud’s claim.
117.The letter of instruction also requested Ms Pont to confirm Mr Proud’s “employment with Mr Rahman’s business”. He had viewed emails from Ms Pont to APM in June 2021, where she advised she was seeking “evidence that he was employed” with the company.
118.He received a letter on 26 May 2021 from iCare, notifying him that it assessed Mr Proud as being entitled to weekly compensation and how much it was. ICare informed him there was no admission of liability for the claim. The letter did not notify him that iCare would make the company responsible for the payments it was making to Mr Proud.
119.On or about 24 June 2021, Ms Pont attended the premises as agreed, and expected to be about one hour. She was accompanied by a Bengali interpreter. However, most of the conversation was conducted directly between him and Ms Pont in English. He is proficient in English. However, he continued to think in Bengali, and for complex matters would translate from English into Bengali.
120.During the meeting, Ms Pont “departed from the agreed purpose of the attendance” and engaged him in a conversation in English, during which she volunteered advice about how the interests of the company and himself would be best served by providing information in response to questions about the circumstances of the claim.
121.Ms Pont advised, “to the effect”, that if he didn’t provide a statement about the matters she had been asked to investigate, iCare would not pay compensation from a fund used for employers who did not have insurance, and this would result in the company and himself becoming personally liable.
122.Ms Pont had introduced herself as working for iCare, and he believed she had the authority to make decisions affecting the company and himself, and if he cooperated and gave a statement, iCare would pay compensation and he and the company would be relieved of any liability in relation to Mr Proud’s claim.
123.“Faced with the option of giving a statement and finalising the matter or having the matter continue with no certain outcome”, he agreed to give a statement on the basis that if iCare determined Mr Proud was eligible to receive compensation, that would be the end of the matter as far as any further liability he and the company might have.
124.Ms Pont made a number of representations in what she said and failed to say as follows:
(a)    there were many employers who were uninsured, because of which iCare had a scheme under which the workers compensation was paid by iCare to uninsured employers [sic];
(b)    to have iCare pay for a business that did not have a current workers compensation [sic] and was uninsured, the business had to cooperate in its investigation;
(c)    Ms Pont had the authority to approve payment of a claim and the company would no longer be liable for the payments; alternatively;
(d)    Ms Pont failed to disclose she was instructed to investigate the company’s liability, including for recovery purposes, and both he and the company would be prejudiced by giving a statement when they had already disputed the claim and had interests contrary to those of iCare;
(e)    If he didn’t provide a statement, then iCare would not pay and he and the company would be personally liable to Mr Proud, and
(f)    Ms Pont did not say she would use any statement given in order to prove the company was liable when iCare recovered payments.

125.At the time he cooperated he was ignorant of his rights to privacy, confidentiality, and privilege against prejudicing the interests of himself and the company. He relied upon
Ms Pont’s representations that in doing so iCare would pay the claim and he and the company would have no personal liability for the payments.
126.At the time of the request, he was not informed that the statement would be used for any other purpose than to determinise [sic] whether Mr Proud had suffered an injury. He was not informed that if Mr Proud was found to be entitled to claim compensation, the company may be held liable for the payments, and the investigations being carried out included whether any payments made to Mr Proud could be recovered from the company.
127.At the time, he was not informed that he was not under any obligation to speak to the investigator, or if he did, what he said was going to be used against the company. He was not informed that in speaking to the investigator, he was waiving his right to privacy and confidentiality in respect of the management, affairs and conduct of the company, which were protected under law.
128.He was not informed at the time of giving the statement that there was a conflict between the interests of the respondent and those of himself and the company, and through participating in the interview and providing a statement, he was prejudicing defences the company may wish to rely upon in the event the respondent sought to recover payments made.
129.Had he been informed prior to giving the statement [of] the purposes to which the information was [sic] to be used, he would have consulted a solicitor and “expect[ed]” he would have been advised that privacy principles would apply to the information provided.
130.He had become aware that under Privacy Act 1988 (the Privacy Act), the investigator was required to disclose, and he was entitled to know, why his personal information was being collected, how it was to be used, and who it would be disclosed to. He was not made aware that in speaking to the investigator, the personal information disclosed would be used by iCare for the recovery of payments it made.
131.Had he been informed of the true purpose to which the personal information was to be applied, he would not have agreed to disclose any information other than that he was required by law to disclose. The investigator misrepresented the purpose to [sic] which the information was to be used.
132.In an addendum to his statement dated 24 June 2021, the investigator represented that he gave consent, which he now understood was required for the purposes of s 6(1) of the Privacy Act. He disputed that for the purposes of the Act, he knowingly gave either express or implied consent. He disputed that the necessary elements of consent required were satisfied, in particular:
(a)    he was not adequately informed before giving consent;
(b)    he did not give consent voluntarily to the use of the information to assist a claim against himself and the company;
(c)    the consent was not specific in the use of the information prejudicially against him and the company, and
(d)    he did not have the capacity to understand and communicate his consent based on the representations made to him about the purpose and use.

133.He now understood that a condition of the use of confidential information under the Privacy Act is that an individual’s personal information would not be disclosed in any way that an individual would not expect and only be used or disclosed for the particular or primary purpose for which it was collected. He was not informed the information was to be used for any purpose other than determining the circumstances of Mr Proud’s claims.
134.As a consequence, his rights under the Privacy Act had been infringed, and iCare had made misrepresentation to him about the purpose of the interview and statement made by him, to obtain information to prejudice the company and him, upon which it relied to recover payments.
135.The manner in which his statement was taken was unfair, as it involved him answering a series of questions that were proposed [sic] through a translator and his answers were translated and incorporated into a narrative form, “which make up the statement”.
136.The questions proposed [sic] used terms which have particular significance for workers compensation, none of which he was familiar with, or aware of their significance, and which, if he was aware of the complex legal issues involved, he would not have accepted.
137.He used the word “chakuri”, which has no direct translation to “employment” as used in the statement. Chakuri can refer to a person carrying out jobs not necessarily through a relationship of “employment”. In the situation, Mr Proud was provided with chakuri, that is a job in a trial through the placement arranged with APM.
138.As a result of iCare’s unfair conduct, which included misrepresentations as to the law and facts, unlawful infringement of privacy law and failure to afford the company procedural fairness in the decision to issue the notice, the company had been prejudiced and deprived of the right to a fair hearing of the Application.

139.He was born in Bangladesh, where he studied Bachelor of Business, with a major in accounting. His family ran an import and export business, which he was involved in throughout most of his life.
140.He came to Australia on a student visa in 2009, to study a Master’s degree in Business and worked part time. He never completed the degree, as he got involved in importing and selling merchandise.
141.In April 2014, he incorporated the company and commenced the business. The company employed him as a manager. He was its only full time employee.
142.The business maintained a “bricks and mortar” presence, but attendances there were overwhelmingly by couriers and Australia Post to the shop desk.
143.The building was spread over three levels. The shop was at the front, at street level, where a counter and desk were located. That was where most of the work took place, as it primarily involved the use of computers and telephone. He received deliveries and despatched orders from the shop, where they were picked up and dropped off by couriers.
144.Behind the shop, there was a set of stairs leading to the lower ground, where a door gave rear access. There was a set of stairs leading to an upstairs storage area, and a middle level which was a continuation of the shop front. On the ground level behind the shop front were the toilets and kitchen.
145.There was no “dock” on ground level. There was a roller door that could not be used, as there was shelving in front of it. The storage area on the third level was where furniture that had not been sold was stored. The company used to import a lot of furniture, which was sold online, but the mobile phone side of the business, as well as toilet paper during COVID-19, took off.
146.He had no need to move any of the boxes containing furniture during 2021, as there was nowhere to move them.
147.In April 2021, he was the only full time employee, but was assisted by contractors and sales agents. He used to engage Ken to assist with repair and advise on mobile phones. Ken was retired and close by. He had been in the telecommunications industry for 20 years. He was introduced to him about 10 years ago and remained friends with him. He would contact Ken when he needed a phone repaired, or for advice or recommendations.
148.The other person at the premises on 24 April 2021 was Manuka Subedi (Manuka), a Nepalese nursing student. She had responded to a Gumtree advertisement the company had placed, inviting interest in a new venture he wanted to launch. The company would sell mobile phones to a sales agent at wholesale (with its margin factored in) and the sales agent would sell at retail at the price they set.
149.Manuka was on the premises for about two weeks, learning the products and how to use Amazon and eBay. She decided not to go ahead, as she found employment in a hospital.
150.The landlord would frequently “drop in” if he was in the area. He was in the area on
24 April 2021 and dropped in and out during the course of the day, as he was supervising the fit out of an office.
151.Other than showing Mr Proud around, and explaining where stock could be found, the majority of the trial was at the desk on the computer, with him explaining the systems. If he was not present, Mr Proud was left at the front to familiarise himself with the products.
152.Leading up to April 2021, he had received about five unsolicited approaches from an employment agency about placement of unemployed people, which he didn’t take up or show any interest [sic]. He regularly had Centrelink recipients put in applications, many of whom made no secret of the fact that they only applied to fulfil their quota and did not want to work.
153.He was unaware why the company became a target of these approaches, or how the agencies knew about the business, as he always found help through word of mouth or placing an advertisement through Gumtree.
154.In April 2021, the business was operating under COVID-19 restrictions. There was no public access. The online business remained operating, and business was improving. He was not interested in recruitment through the agency, as the company had in the past recruited successfully by placing an ad, which would be responded to by overseas students, who under their visas could work up to 20 hours.
155.These were casual positions to start with, and if the person was a good employee, he would put them on as permanent part time. Young foreign tertiary students were preferred, because they were generally smart, motivated, very reliable, and dependable. COVID-19 had resulted in a decline of overseas students, which meant he had to look beyond the usual candidates.
156.His preference was to advertise and recruit people actively looking for work, and not go through an agency, who [sic] was acting as the go-between and offering incentives to the employer to take on their clients, because the client had a history of being unattractive to employers.
157.The position he proposed involved preparing mobile phone packages for posting orders. It entailed taking the orders (online or phone), taking the item off the shelf, packing it, and sending it to the client. The maximum weight of the articles would have been 5kg.
158.He was hopeful of face to face trading (walk in business) returning, so retail experience was something he believed would assist.
159.At the time, most of the smaller deliveries were made at the front of the shop, via Australia Post or other delivery services. Australia Post did not pick up on Saturdays, so there were no deliveries on the weekend.
160.There were very long waiting times for deliveries of orders, and escalation in the costs of shipping containers meant there was no new supply. The larger deliveries came via container from China, between one and a half to two months.
161.A delivery shipment was brought to the shop in a “ute”, unloaded at the back, and brought in via the back door. Anything had to be small enough to get through the door. At the time, the ute was broken down and not repaired, as he had no driver to drive it.
162.He did not recall having any deliveries during April 2021, and there was no stock to be moved from the back store. There had not been a large container delivery for at least a month prior to the incident.
163.He had searched the company records and the last delivery was from China in March 2021. It was related to phones. As a consequence, there were no boxes that needed to be moved. The business was “dead at the time” and there was no need to bring in new stock while existing stock was on the shelves.
164.The advertisement placed on Gumtree has been reproduced in the statement. I have summarised it below.
165.The advertisement referred to “Salary Plus Performance bonus” and “will provide work experience”; “the right attitude is everything…”
166.The position required a “genuine love for retail, with a passion for great customer service”; “a team player that is flexible to work different tasks”; “agile and adaptable to change”; “reliable and willing to work, and available to work a flexible roster”.
167.The benefits available included employee discount; employee training; travel reimbursement; and visa sponsorship. “Supplemental pay types” included commission and performance bonus.
168.The requirements of the position included a passion for customer service and sales achievement; the ability to work well in a team focused and fast paced environment; strong interpersonal and communication skills; and being reliable and dedicated to the job. Previous retail experience was preferred, but not essential.
169.The job involved eBay listing, data entry, customer service, retail assistant. Overseas students were welcome. The applicant could provide any relevant documents to help students for their visa. It would provide training.
170.The position involved an administrative and sales role, and not a stores role. He was looking for either a man or a woman, and any candidate was not expected to perform any labouring or physically demanding duties. The ad said that the job was for 20 hours per week, which was the maximum an overseas student on a study visa could work.
171.He expected younger candidates and overseas students, as the hours were part time, and the role was an entry position. He was uncertain about the future and the hours that could be offered.
172.The company did not receive any applications from overseas students, due, he expected, to most having been forced to leave Australia due to COVID-19.
173.At the time he placed the ad, he was prepared to pay the hourly rate advertised, and just wanted a reliable, honest, and fit worker. He had given not regard to a wage subsidy at the time.
174.He disputed having told Mr Proud he was only interviewing “people from Centrelink” as he “wanted to use the subsidy”. This was incorrect, and he disputed he said anything of the sort.
175.The only responses he received to the ad were from Centrelink recipients, all of whom he now suspected were registered with APM. He guessed now it was APM that had been cold calling him to take on trial their clients and using the wage subsidy as an incentive.
176.He had in the past never taken up the offer from APM, although he had been offered the subsidy. However, at the time, there was a general labour shortage, so there were limited options, and the only respondents were all receiving Centrelink payment, and with an agency used by Centrelink, so that was what was available.
177.The three who responded to the ad all volunteered that they would be given a subsidy. At the time he thought nothing more of this. However, “with the benefit of hindsight”, he realised all three were clients of APM, and part of their job preparation was a resumé and instructions on a script.
178.Mr Proud was the first response to the ad, and he received two more enquiries, all of whom it became apparent were prompted by APM.
179.Mr Proud told him he was with APM and if he got the position, he would get a 50% wage subsidy. Two others also told him they were subsidised and working through an agency.
180.Mr Proud told him that if he wanted to receive the subsidy, he would need to go through APM, who he would contact and have them liaise with him. He proposed alternatively that if he was interested in paying cash, then he wouldn’t have to involve the agency.
181.He responded that if he was to offer Mr Proud a placement, he wanted the subsidy. He asked him, if the interview went ahead, to bring his resumé with him. In his experience as an employer, the most reliable guide to whether an applicant was genuine was whether they had a past working history or referees, or an explanation for why they had not been working.
182.He was sceptical as to whether he would hear anything further and suspected Mr Proud was not really interested and just making the call to get Centrelink payments. His attraction to Mr Proud was that if he took a chance on him, he wouldn’t be taking all the risk, but sharing it with APM, so if his fears were realised, it wasn’t going to be total loss.
183.The company had been approached in the past by people who acted in a way that would make an employer uninterested. They did not have a resumé, follow up on requests for further information, or show any interest in what they would be doing.
184.After speaking to Mr Proud, he was contacted by an agency representative from Bankstown. He didn’t know the agent’s name until he was shown documents in relation to Mr Proud, which showed that he was a client of APM and Ms Sarah Elchami was his placement coordinator.
185.Ms Elchami confirmed that Mr Proud was with APM and eligible for a subsidy, should he be interested in trialling him. From the beginning, the discussion was about trialling Mr Proud through a placement, and not providing an offer of employment, although he understood APM’s goal was to secure employment for Mr Proud.
186.The conversation with Ms Elchami was brief. A job interview was arranged for Mr Proud to attend at 11am on 15 April 2021 with a hard copy of his resumé. Ms Elchami confirmed that if he decided to proceed with employment, 50% of any wage would be paid through APM as a Centrelink subsidy. She advised that APM would be responsible for applying for and getting approval.
187.APM did not require any commitment to an offer of employment, just that if Mr Proud was placed with the company, the subsidy would be applied, and a co-payment guaranteed if he proved satisfactory.
188.Mr Proud turned up for the interview on 14 April 2021 but did not bring a resumé. He was unimpressed and he assumed the application was being done to satisfy Centrelink. He asked, using words to the effect, “Do you really want to work or was it just that Centrelink sent you?” He said, “No, I just want a chance”.
189.Mr Proud sounded genuine, and he showed him around briefly and explained the role, which was pretty much self-explanatory from the ad. He ended the meeting by saying he needed to see his resumé before he could do anything more.
190.He never received the resumé. After Mr Proud had left, he discovered it was sent to him as a text message. He was sufficiently computer savvy that he did not open attachments unless he was satisfied about the source.
191.On the Monday, after Mr Proud told him of his injury, he telephoned asking that he assist by paying for an MRI. In frustration, he asked, using words to the effect of “Have you ever worked anywhere before?”. He replied, using words to the effect, “Yeh I use to work at Bunnings but had to stop because of a blood clot”.
192.It was not until he was requested by his solicitor to provide a copy of the resumé that he opened it, when he found Mr Proud had left Bunnings in 2019. He attached a copy of the resumé.
193.Mr Proud appeared much older than he expected for an entry level role. He presented as physically fragile and out of condition. He was noticeably very nervous during the meeting and appeared to be shaking. The landlord suggested that his impression was that of someone who may have been involved with drug use.
194.He was sufficiently concerned that after the meeting he raised with Ms Elchami his concerns about Mr Proud’s health and nerves. She assured him there was no issue and attributed his shaking to interview anxiety.
195.He referred to the Job Plan and Mr Proud’s history of musculoskeletal concerns associated with rheumatoid arthritis. Mr Proud was reported to suffer from osteopenia. He had become aware from his solicitors that in the “medical literature”, there is a recognised association between rheumatoid arthritis and the development of osteopenia.
196.His “belief” is that at the time Mr Proud hurt his knee he was suffering from rheumatoid arthritis and osteopenia so as to be at risk of suffering injury to the knee wherever he was or whatever he was doing.
197.He had around two years before agreed to a placement when an insurance company asked the company to take on a worker as part of a rehabilitation or return to work.
198.The worker was Bangladeshi and had severed his fingers while working as a butcher. Under the agreement with the insurer, it paid his wages, and he was just required to give him anything he could manage. He looked after the shop when he went out and accompanied customers to the upstairs and back rooms. He gave him a job but did not employ him.
199.The next day, Mr Proud sent a text message attaching his resumé, which he was afraid to open. He asked for a hard copy and to send his TFN, which he needed if he was to get the subsidy from APM.
200.Mr Proud sent his resumé again by text message, which he again didn’t open. He decided, given APM only arranged for him to meet Mr Proud, they would go ahead with a three day trial placement.
201.The next morning, he sent a text message to Ms Elchami agreeing that “at the moment” and “for now” he was prepared to give Mr Proud an opportunity to trial over three days. He did not wish to commit to more than three days, and APM had not requested that he provide anything more than a placement trial.
202.He didn’t receive any confirmation from Ms Elchami as he expected. APM didn’t confirm Mr Proud’s eligibility for employment through it and nothing was sent for another 14 days, on 29 April 2021, by which time he had left.
203.He agreed with Mr Proud that nothing was signed or agreed between him and Mr Proud. The agreement was between him and Ms Elchami, with whom he confirmed the days, for an in principal trial placement.
204.He didn’t know whether Mr Proud would be paid for the trial, it was up to APM whether it confirmed there was to be a subsidy, and he didn’t receive confirmation from it. He was not intending to pay Mr Proud for the trial, other than if APM directed he was to proceed, and guaranteed the subsidy.
205.When Mr Proud asked him to assist on the Monday after the alleged incident, he did so as he said he needed it for medical expenses and to have an MRI. He didn’t say he wanted wages.
206.By this time, he was wary, because of what his landlord had warned him about, and he just wanted to get on with things. His concerns about Mr Proud’s intentions were heightened when he came to collect the $300 cash and said words to the effect that “he wouldn’t make an insurance claim”.
207.He didn’t hear any more from Mr Proud until iCare telephoned him on or about 21 May 2021. If Mr Proud reported he had earned $300, he didn’t receive anything from APM or Centrelink asking him to confirm that he had worked any hours or that he had earned anything that week.
208.He didn’t send anything to APM to claim a subsidy as he didn’t believe Mr Proud had been paid anything that would entitle the company to a subsidy. APM or Centrelink did not request that he confirm Mr Proud had reported income for the week.
209.He proposed to APM an initial three day placement for a total of 15 hours, which he had agreed with the agency. The exact words he used in the SMS to APM were “for now” he was prepared to trial Mr Proud. He had not agreed to more than a three day trial. When APM gave approval, he texted Mr Proud giving him the dates for the placement.
210.The first day Mr Proud was to attend was 22 April 2021 at 11am. He asked him about the paperwork, which was his TFN, but he said he forgot. He felt suspicious about how focused he was on work, so it started off badly.
211.The first day was an induction type process, during which he showed (Mr Proud) how the system worked and where the stock was located. He was not requested to, nor did he do, any lifting of boxes or moving stock from the back on that day. He was in the shop with him during that time.
212.On day one, he explained their operations. This included how to create shipping labels and pack the product; helping couriers with pickup; handling in store pickup; helping customers over the phone, including some general questions they may ask, and what would be the answer; walking through the building; and showing Mr Proud around the three levels of the shop.
213.On day two, Mr Proud told him again he would bring his “ID address”, TFN, bank and super details, and anything they needed to know about his medical condition. He again didn’t bring what he was asked. He told him to bring the information the next day if the trial was to go ahead.
214.On day two, there was more of the same, that is, walking through their products and their location. He ended the session focused on using the computer system, showing Mr Proud the systems used to fill an order.

215.Day three was 24 April 2021, a Saturday. He had asked Mr Proud to come at 11am. He arrived without his TFN or super fund details. He was wary and sure he was deliberately withholding them, or incapable of organising himself. He had on the previous working day said words to the effect “I need your paperwork so that I can add you on QuickBooks”.
216.QuickBooks was the software accounting program that recorded details of money paid, tax, and super. He told Mr Proud the trial could not be completed if he didn’t bring the paperwork. He informed Mr Proud in front of Ken, who was in the shop at the time, to sit and wait for him. There was nothing he could do without him, and by this stage he didn’t intend to proceed with the trial.
217.He was frustrated with Mr Proud by the second day and didn’t feel he had done enough to have confidence in him to extend the trial, especially given he couldn’t comply with a simple request to provide his TFN and super details. However, he had agreed with APM for a three day placement.
218.He had arranged to meet Ken at the shop, and had with him his four year old son. His son was complaining that he was sick and wanted to go home. He wanted to take him home but waited until Mr Proud arrived.
219.When Mr Proud arrived, he again asked whether he had brought his paperwork, and he told him he hadn’t. He decided he would let Mr Proud go. However, he had to drop off his son and come back. He expected to be back by midday, and left Ken in charge. He asked
Mr Proud to sit down and wait for him. There was nothing for him to do and he was not required to move stock.
220.He was probably gone for about an hour and back around midday. When he returned, he thinks Ken had left. He found Mr Proud at the back of the shop at the top of the stairs, using words to the effect “I twisted my knee”.
221.He asked whether he was all right and he told him he just needed a moment and sat down at the top of the stairs. He asked Manuka what had happened, and she said she hadn’t seen or heard anything. She was at the desk that looks down the stairs and into the back of the downstairs.
222.He asked Ken, who told him Mr Proud appeared very agitated while he was waiting and had gone outside a number of times. This was not unusual, as he had constantly interrupted their session with a request to smoke.
223.Ken told him Mr Proud had told him he hurt himself when he went to the back of the shop to get a drink of water. The kitchen is down the stairs in the downstairs area. Ken told him he did not observe Mr Proud to be walking with a limp or appear injured.
224.After about 15 minutes, Mr Proud was still sitting at the top of the stairs. He asked him if he wanted an ambulance, which he accepted, and he called an ambulance. Mr Proud was unhappy about the wait and left to take a taxi. He left without assistance and waited out the front.
225.There is a kitchen downstairs and a toilet at the back of the shop downstairs. The statement attached a photo of the backroom, showing the kitchen, taken on 19 December 2022. The area had not changed since Mr Proud was in the shop. This is the room in which Mr Proud told him he twisted his knee.
226.The statement attached a floorplan, showing where he found Mr Proud standing and where he sat at the top of the stairs; and the desk where Ken and Manuka sat. It also attached a photo taken on 22 December 2022, showing the area and chair where Mr Proud was left. If Manuka was sitting at the desk, there would be an uninterrupted line of sight into the back room. There is another photo showing the desk and work areas, and what is stated to be this view.
227.There are photos which have not reproduced sufficiently to be clear, stated to be of the area referred to as the back room behind the shop, as of 20 May 2021. There appears to be another copy of the floorplan, which is also not clear, but is stated to be marked with an “x” (illegible) where he found Mr Proud at the top of the stairs.
228.Mr Proud did not tell him when he “twisted his knee” that he was lifting a box, so he did not look for any boxes on the ground. He did not find any boxes on the ground when he later inspected the downstairs back area, to cause him to believe there was anything different about the room as a result of Mr Proud having gone downstairs.
229.There is no “dock”, and the roller door was blocked with shelves, so was not used. There was no room or purpose to lift boxes and nowhere to move them. He did not know what box would be required to be moved or where it would be moved. Part of the trial process was learning where the stock was stored to retrieve it.
230.There was no purpose to “moving boxes around in the storeroom” and he didn’t ask
Mr Proud to move boxes. The position was not a stores position.
231.Mr Proud has stated the shopfront was about 30m to 40m from the rear. It would be at most
10m. He stated he placed a box on the ground. There is limited space in the rear of the shop, and a narrow aisle to access stock. Mr Proud did not show any box on the ground. If there was one, it would have to be moved as it would obstruct the access.
232.He disputed that he was present at the time Mr Proud said he injured himself, or that he came downstairs as a result of him falling.
233.Mr Proud was not downstairs when he told him he had twisted his knee, but at the top of the stairs, after he returned from dropping his son home. He did not ask for assistance to gain access to the street level to leave the premises.
234.He disputed that he assisted Mr Proud to leave the shop. He left the shop without assistance, due to being impatient with the ambulance delay. He would have provided assistance if it was needed, but it was not requested and did not appear to be needed.
235.If Mr Proud went downstairs to the kitchen, it would not be because he had requested it for work. He attributed his fall to being caught by a small piece of carpet. The carpet was made of laid carpet squares and had been in place for 12 months. Its condition was good, and it remained in good condition, without raised edges or uneven surface. Mr Proud did not report to him that his foot had been caught by a piece of carpet.
236.When he became aware in May 2021 that Mr Proud explained his fall as due to “a small piece of carpet”, he inspected the carpet and could not [see] any squares that were not in place or raised. MJM Corporate Risk Services (MJM) examined the carpet a few weeks after
Mr Proud’s incident and could not find any hazard in the carpet.
237.There were no boxes weighing between “10kg -15kg” and no request that boxes move from ground level to the rear of the shop.
238.Later on 24 April 2021, he received a call from a lady who said she was from Bankstown Hospital, and she was shouting at him. She said he could not have a worker without paperwork. He told her Mr Proud came from Centrelink and was on a trial.
239.She kept telling him “A lot of story about how he couldn’t do this or that”. She asked about money, and “If he didn’t work here, would I agree to pay him $300 for the cost of his medical treatment”, if it would “get him out of the way”, and he said yes.
240.He disputed that he told the person from the hospital that Mr Proud was a customer, but said he was from Centrelink. He could hear in the background another voice of a woman who sounded very agitated.
241.Mr Proud came to the premises the following Thursday with his mother, and he handed him $300 cash he had told the hospital he would pay. Mr Proud said words to the effect that “I will not go for any insurance claim”.
242.He heard nothing further about Mr Proud until he received documents from APM setting out the terms on which he could be employed through a wage subsidy.
243.Mr Proud did not lodge a claim with him. He received about a month later a call from iCare informing Mr Proud was claiming he was employed by the company.
244.About two weeks after his discussion with Ms Elchami, he received from APM on 29 April 2021 a document headed “Wage Subsidy Agreement” (the agreement), prepared by APM, which was referred to as the “Employment Service Provider”.
245.He did not look at the agreement until it was shown to him while preparing this statement. The terms and conditions provided that the placement was for a role that had not been made due to reducing or retrenching staff, and that the conditions of employment met award standards.
246.The agreement with Mr Proud was a three-way arrangement. APM controlled the hours that could be worked and were to pay 50% of the wages. There would be no subsidy if the placement ended within six weeks. He would not have accepted this term as the basis to employ Mr Proud.
247.The agreement required the company to provide evidence of the days and hours Mr Proud worked, and how the information was to be provided, that is, “Gross Wage/Week” and shown as GST inclusive. He would not have accepted this term as a basis to employ Mr Proud.
248.He had not considered the GST implications at the time of agreeing to the placement, but now understood that as far as APM was concerned, the company was providing a service to APM in providing the placement. This meant APM required the company to add to the bill for reimbursement an amount of 10% for GST.
249.APM required the company to provide on request, as the employment service provider, all payslips/payroll summaries for the period under the agreement.
250.Under the agreement, the company had to discuss with APM, as the “employment services provider” any difficulties Mr Proud was having sustaining employment, and work towards supporting him in continuing with the job. He would not have accepted this term as the basis to employ Mr Proud.
251.The agreement provided that if the company accepted the terms, then [it] would provide under the placement 15 hours employment for six months between 19 April 2021 and
18 October 2021. It stated the position would be a “general hand”, which did not reflect what the ad called for, what he had discussed with APM, or what he had proposed. He would not have accepted this term as a basis to employ Mr Proud.
252.The agreement included a “good faith” expectation that the company would employ Mr Proud when the placement ended, “barring unforeseen circumstances”. They were that, if the company did not wish to proceed to employ Mr Proud, APM, as the service provider, had to discuss when it was identified that the role would not be offered on a permanent basis. He would not have accepted this term as the basis to employ Mr Proud.
253.The agreement did not require the company to have workers compensation or any other insurance. When he had taken on a worker previously the insurer was responsible for legal requirements and liabilities of having a worker on the premises. He had been advised by his solicitors that the law requires the employment agency to be responsible for having workers compensation.
254.He instructed his solicitor to investigate whether APM had a workers compensation policy and those enquiries established that at the time of the incident it was insured for injuries where they had placed a client with a host employer.
255.He had been shown a letter from iCare to Mr Proud dated 26 May 2021, in which it stated that Mr Proud’s pre-injury average weekly earnings (PIAWE) were $408.45. The letter stated that it was based on the Retail Award “applicable to your employment”. The award rate was used as he had not provided “sufficient information to confirm” earnings.
256.This was because Mr Proud never received a wage, and any money he received was never requested as a wage. The PIAWE were not based on Mr Proud’s evidence, his evidence, or the proposed arrangement with APM. Mr Proud said his expectation was to receive $300 and anything more would affect his Centrelink payments. That was why the trial was for 15 hours per week.
257.He disputed the PIAWE assessed and that the amount claimed was assessed in accordance with the 1987 Act. There was no agreement to pay Mr Proud for the time he attended the premises. There was an agreement with the agency that if he successfully trialled, he would be paid $20 per hour, for which 50% would be contributed by APM.
258.Mr Rahman’s final statement is dated 2 May 2023.
259.He referred to Ms Pont’s statement dated 23 April 2023.
260.His recollection was that Ms Pont indicated the interview would be about an hour. At the time, he had no one to assist him, and was running the shop and giving the interview at the same time. Had she informed him the interview would take more than an hour, he would probably have asked for it to take place at a different time, so he could be more focused on it.
261.Ms Pont volunteered advice to him. She gave him the example of a worker on a construction site. He had never worked on a construction site and did not know the different scenarios that could arise until she told him about them.
262.He recalled Ms Pont telling him he would be liable if iCare did not pay. He had previously employed [sic] Ms Pont that Mr Proud was not employed by the company.
263.Ms Pont did not tell him she was a private investigator. He believed she was working for iCare. He did not know iCare had engaged an investigator to investigate the matter. He had been speaking to people from iCare and thought she was part of its team. He had no concept of what a private investigator was.
264.Ms Pont did not give him a proper explanation of her role. He did not have any concept of the role of an investigator in these types of matters.
265.Ms Pont did say there was a scheme for uninsured workers and gave him the example of a construction site worker. He did not have any other way of knowing about the scheme until that time, as he did not have any previous experience with iCare.
266.Ms Pont informed him that he should cooperate and gave him the example of a construction site worker, and he recalled her saying Mr Proud may sue him personally.
267.He understood Ms Pont had the authority to approve the payment of the claim. He was very influenced by the statements made during the interview, and she convinced him she would influence the outcome.
268.He informed Ms Pont that he disputed the claim. She said words to the effect “Did you tell the hospital that Mr Proud was a customer?”. He said “No, I did not say he was a customer. I said he was there for induction interview.” He also told her Mr Proud was not yet an employee as they had not completed the paperwork.
269.He understood from representations made by Ms Pont that if he did not make a statement, iCare would not pay, and he and his company would be liable.
270.Ms Pont was aware that he disputed Mr Proud’s alleged employment. He would not have provided a statement to her had she not convinced him it was in his best interests to do so.

Evidence of Ken Georges

271.Mr Georges’ statement is dated 24 November 2022.
272.He had known Anisur Rahman (Anisur) for 10 to 12 years. Anisur would call him when he needed a phone repaired and he would either assist him or recommend someone. He often visited the shop and sometimes ran errands for Anisur if he got stuck.
273.He was at the shop on the Saturday before Anzac Day in 2021. Anisur’s son was with him. Anisur said he needed to take his son home and asked if he would stay at the shop until he returned. He agreed.
274.Mr Proud was also at the shop. He heard Anisur say words to the effect “I can’t employ you unless you give me the paperwork”, and “Sit down and wait for me to come back”.
275.After Anisur left, Mr Proud began walking about in the shop. He went outside for a smoke a few times. He also began wandering around the back of the shop. He said, “You were asked to sit down and wait. Sit down and wait”.
276.When he saw Mr Proud going towards the back of the shop, he said “You are not allowed around the back.” He said, “I need to get a drink of water from the kitchen”.
277.He went to the toilet and when he returned Mr Proud said, “I fell and broke my leg”. He said, “I will call an ambulance”. He said “No, don’t call an ambulance”. He then left the premises. He did not know where he went. He did not appear to have any injuries.
278.He left the premises. He believed Mr Proud later returned, because Anisur told him he was there when he returned.

Evidence of Theresa Sukkar and MJM regarding Ms Subedi

279.Ms Sukkar’s statement is dated 25 November 2022.
280.On 23 November 2022, she telephoned a mobile number, which appears in the statement. A female person answered the phone. She asked, “Is this Manuka?”. She replied “Yes”.
281.She identified herself and said she was representing Northern Beaches Services and was phoning in relation to an incident that occurred in April 2021 at its premises.
282.The female replied with words to the effect “I do not remember the incident” and “I do not want to get involved”.
283.She asked if she would be prepared to provide a statement of her recollection of the events and she said words to the effect “No. I don’t want to get involved”.
284.MJM reported on 28 June 2021 that Ms Subedi had been contacted by phone on 25 June 2021.
285.The investigator reported that Ms Subedi could not recall the date, but confirmed she was in the shop on the day of the alleged fall.
286.The claimant had arrived for work as he had on previous days. “The insured” told him to sit and wait until he returned. He went to the back of the shop.
287.When the insured returned, he saw the claimant at the rear of the shop. He apparently told the insured he had fallen and hurt himself.
288.Ms Subedi did not see or hear anything to confirm the claimant had fallen, and he did not say anything to her about a fall.

Evidence of George Chiotis

289.The applicant is one of Mr Chiotis’ tenants. His statement is dated 7 February 2023.
290.He regularly attended the premises to ensure everything was OK. He had become well acquainted with Anisur. He usually dropped in to say hello when he was in the area.
291.On 24 April 2021, he went to the premises because a new tenant was moving in and was carrying out some tiling work.
292.To the best of his recollection, he arrived at about 11am. He checked with the new tenant and dropped in to say hello to Anisur, probably at about 11:15am.
293.Ken and a gentleman who he now knew to be Michael Proud were sitting at the back of the shop. He had met Ken before. He could not recall whether he was introduced to Mr Proud that time, or when he returned the next time. He said hello to Anisur and Ken and then went back to check on the new tenant.
294.He returned to the shop about 15 to 20 minutes later. Ken told him Anisur had gone home and would be back soon. Ken and Mr Proud were sitting at the back of the shop talking.
295.He left shortly thereafter to check on the other tenant. He went back to the shop at about 12:45pm to 1:00pm. Anisur had returned. Mr Proud was no longer there.
296.Anisur told him Mr Proud had complained that he twisted his ankle while going downstairs. He said he had called an ambulance. Mr Proud did not wait for the ambulance and caught a taxi instead.
297.He asked Anisur if he had workers compensation insurance and he said he was not sure. He suggested that he should check and take out insurance if he did not already have it.

Evidence of Colleen Mary Pont

502.The respondent submitted that, in his statement dated 7 February 2023, Mr Rahman went to some lengths to put forward reasons why the claimant’s account of the incident should not be accepted; and those matters are addressed at some length in the applicant’s submissions.
503.However, the respondent submitted that the evidence is entirely one way. Mr Proud attended the applicant’s premises on 24 April 2021 without any injury to his right [sic] knee. The applicant had led no evidence that he was suffering from an injury prior to his attendance at work that day. It is undisputed that while he was at the premises, he complained of injury to his left knee. At the time of the injury, he was in the rear of the premises, which was confirmed by Mr Georges. It is irrelevant what he was doing at the time of the injury, as is the precise mechanism of injury.
504.The respondent submitted that, unless there was evidence that the claimant had taken himself outside the course of employment at the time of the injury, then the requirements of ss 4 and 9A of the 1987 Act were satisfied. There was no such evidence.
505.The respondent referred to the applicant’s “speculative and rather fanciful set of propositions” about why the injury could not have happened as alleged. It overlooked the fact that both
Mr Rahman and Mr Georges confirmed Mr Proud’s contemporaneous account of having suffered injury to his left knee in the applicant’s premises. The extent of the injury was confirmed by the medical records, in particular the report from Dr Konidaris.
506.The respondent submitted that, unless it was being suggested that Mr Proud deliberately injured himself at the premises for the purposes of claiming compensation (and no allegation to that effect has been made, nor squarely put to the claimant, who was left out of the proceedings) the various references to the apparent inconsistencies in his account of the injury do no more than underscore the fact that he is a relatively unsophisticated individual, who should not be expected to provide a word perfect account of the incident.
507.The respondent referred to the evidence of the “witnesses” and submitted there were no witnesses to the incident, and at no stage in Mr Rahman’s initial statement did he suggest that the claimant could not have suffered injury as alleged.
508.The respondent submitted that the applicant’s submissions relied on what was said to be “an absence of evidence commenting on the causal relationship between the mechanism of the work-related accident and the injury…”, which overlooked the evidence of Dr Konidaris, who clearly had no difficulty accepting that the claimant injured himself at work.
509.The respondent submitted that the applicant’s submission that there needed to be expert evidence commenting on the specific causal relationship, beyond the medical records, was erroneous. Firstly, it presumed the respondent had an onus of proving the causal mechanism; and secondly, it overlooked the evidentiary requirement that what needed to be shown was that the injury was causally related to the alleged incident on a “common sense” basis.
510.The respondent submitted that when the evidence in this case was considered, it admitted of only one conclusion – that the claimant injured himself in the course of his employment with the applicant, suffering a fracture of the left knee, which he both reported to the employer at the time, and [for which he] sought medical treatment on the same day.
511.The applicant sought to rely on studies relating to osteopenia and made submissions to the effect that the injury could have occurred “spontaneously and/or without any forces associated with occupational stress”. The respondent submitted the hypothesis was entirely speculative, and unsupported by any medical opinion. It again overlooked the fact that
Dr Konidaris did not suggest the claimant’s left knee fracture was, or even could have been, caused by osteopenia. The suggestion that his is not expert evidence is difficult to understand.
512.The respondent submitted that, in the absence of medical opinion to support the applicant’s speculative hypothesis, the Commission would have little difficulty accepting that the claimant sustained an injury to the left knee due to work with the applicant. In any event, it is well established that “employers take their employees as they find them”.[22] Even if the claimant’s left knee was more susceptible to the type of injury that occurred on 24 April 2021, the evidence clearly supported a finding that the alleged injury at work with the applicant was the main contributing factor to an aggravation of that condition.
[22] State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249.
513.The respondent referred to the reports of Dr Konidaris, which it submitted addressed the nature and extent of the injury, the degree of incapacity, and the treatment required. That evidence was supported by the reports of Mr Brown and the clinical records of Dr Georgy.
514.The respondent submitted that the applicant’s submissions engaged in a speculative analysis about the effect of the claimant’s other medical conditions on his capacity for work after the date of the injury. They were “unencumbered by any medical opinion” to support its submissions. The respondent submitted that the plain and incontrovertible fact is that
Mr Proud was capable of working for the applicant for two days prior to the date of injury, when he suffered a fracture of his left knee.
515.The respondent submitted that it could not seriously be suggested that the cause of the claimant’s incapacity during the period covered by the notice was due to some other medical condition or factor. Had the applicant wished to properly advance that argument, it was required to lead expert medical opinion to that effect. The Commission would have little hesitation in rejecting the applicant’s submission and finding the claimant’s incapacity and need for medical treatment were caused by the injury sustained while working at the applicant’s premises on 24 April 2021.
516.The respondent finally submitted that the Commission would be comfortably satisfied that the claimant sustained an injury to his left knee while working for the applicant on 24 April 2021, which caused him incapacity and the need for medical treatment. It would also be satisfied that the weekly compensation payments and medical expenses were properly incurred by the respondent; and that reimbursement is properly sought by the notice issued under s 145 of the 1987 Act.
517.The respondent sought an order under s 145 of the 1987 Act that the applicant reimburse the Fund the amount specified in the notice.
SUMMARY
518.Division 6 of part 4 of the 1987 Act contains the provisions relevant to uninsured liabilities.
519.Section 140 of the 1987 Act provides:

“140 Persons eligible to make claims

(1) A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if--
(a) the employer is uninsured, or
(b) the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer.
(2) An employer is considered to be
‘uninsured’ if the employer--
(a) had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer's liability under this Act in respect of the injured worker at the relevant time, or
(b) having been a self-insurer at the relevant time, has ceased to undertake liability to pay compensation to the employer's own workers (but only if the claim cannot be paid under section 216 from any money deposited with the Authority or under any arrangement relating to the refund of any such deposit).
(2A) A claim may not be made under this Division in respect of a claim for work injury damages against a person who is an employer as a result of being a principal within the meaning of section 20 who is liable to pay compensation to the worker.
(2B) The regulations may prescribe the searches and inquiries necessary to constitute due search and inquiry to identify an employer for the purposes of this section.
(3) If a payment is made by the Nominal Insurer in respect of a claim under this Division and the employer is subsequently identified, the Nominal Insurer may recover the amount paid from the employer or the employer's insurer in the manner provided by this Division.
(4) A claim shall not be made under this Division if the person claiming the compensation is entitled under section 20 to claim compensation against a principal within the meaning of section 20.
(5) If a person is entitled to claim compensation against a principal within the meaning of section 20 and the principal was not maintaining in force a policy of insurance for the full amount of the principal's liability under this Act at the relevant time--
(a) the person may make to the Nominal Insurer a claim for compensation under this Division, and
(b) the Nominal Insurer may deal with any such claim as it thinks fit.
(6) The Nominal Insurer is to notify the Authority of any claim made under subsection (5).”

520.Section 141 of the 1987 Act provides:

“141 Making of claims

(1) Claims under this Division shall be made in the form and manner for the time being determined by the Nominal Insurer.
(2) The Nominal Insurer may, by notice, require an employer to furnish to the Authority and to the Nominal Insurer within the period (being not less than 7 days) specified in the notice any information described in the notice which--
(a) is available to the employer, and
(b) is required by the Nominal Insurer in order for it to deal with a claim under this Division.
(3) An employer shall comply with a notice given under subsection (2).
: Maximum penalty--20 penalty units.
(4) In this section--
‘employer’ includes any person whom the Nominal Insurer has reason to suspect is an employer.”

521.Section 142 of the 1987 Act provides:

“142 Publication of claims etc

(1) The Nominal Insurer may, before considering a claim under this Division, publish a notice of the claim in such manner as the Nominal Insurer considers appropriate.
(2) If notice of a claim is so published, any person who, without reasonable cause, fails to notify the Nominal Insurer within the time specified in the notice that the person is the insurer of the liability in respect of the claim of any person who is an employer within the meaning of this Division in respect of the claimant, or who fails to supply the Nominal Insurer with any information it has which may be material to the matter--
(a) is liable to reimburse the Insurance Fund such amount as the Nominal Insurer has paid out in respect of the claim and any costs incurred in connection with the claim, and
(b) is guilty of an offence and liable to a penalty not exceeding 100 penalty units.
(3) If, in respect of a claim under this Division, a licensed insurer with whom the Nominal Insurer considers the injured worker's employer had a relevant policy of insurance at the relevant time is located, the following provisions apply--
(a) the Nominal Insurer shall supply the insurer with all relevant details of the claim,
(b) the insurer shall, within 14 days of being advised of the claim, either accept or deny liability to indemnify the employer,
(c) if the insurer accepts liability to indemnify the employer, the Nominal Insurer shall--
(i) inform the claimant of the existence of the insurance, and
(ii) transfer the claim documents to the insurer,
(d) if the insurer denies liability to indemnify the employer, or does not either accept or deny liability to indemnify the employer within 14 days of being advised of the claim, the Nominal Insurer shall deal with the claim in the manner provided by this Division.
(4) For the purposes of subsection (3),
‘licensed insurer’ means a specialised insurer or self-insurer.”

522.Section 145 of the 1987 Act provides:

Employer or insurer to reimburse “145Insurance Fund

(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was--
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2) The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that--
(a) the amount is beyond the capacity of the employer to pay,
(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.
(3) A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person's liability in respect of the payment concerned.
(4) The Commission may hear any such application and may--
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5) In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that--
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6) The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7) An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 59 of the Personal Injury Commission Act 2020 .”

523.Firstly, the applicant’s submission that the respondent has not satisfied the pre-condition of non-insurance is rejected.
524.The applicant, through its principal, Mr Rahman, has conceded that it did not hold a statutory policy at the relevant time.
525.The provisions of ss 141, 142 and 145 of the 1987 Act are not mandatory. There was no requirement that iCare take any of the actions referred to in those sections as actions it “may” take.
526.In Mackley, Bryson JA stated that the Commission had a broad discretion under s 144(3) of the 1987 Act, and a similar discretion under s 145(4).
527.In Kula, Keating P said at [190-193]:
“Once the worker’s claim for compensation was satisfied under s 140 of the 1987 Act by the Nominal Insurer, the Nominal Insurer was entitled to seek reimbursement of the compensation paid pursuant to the Deed. This was achieved by issuing a notice under s 145 of the 1987 Act on the uninsured appellant.
It was then open to the uninsured appellant to bring these proceedings in the Commission seeking a determination of its liability under s 145(4) of the 1987 Act. That is the basis on which the matter proceeded.
I do not accept the appellant’s submission that the onus of proof was reversed by requiring it to discharge the evidentiary onus in circumstances where the Nominal Insurer had not discharged its legal onus, at least to a prima facie level.
A certificate issued under s 145(5) of the 1987 Act is evidence of the matters stated in it. However, it is not conclusive evidence and is open to an employer to prove that at the relevant time it was not liable to pay compensation to the injured worker. It follows that the certificate is prima facie evidence that the appellant was liable for payments made by the Nominal Insurer to the worker in the sum of $225,000, unless proven otherwise.”

528.The applicant submitted that in Sun Alliance Bishop CCJ construed the word “may” in
s 142(1) of the 1987 Act as mandatory. With respect to his Honour, he appears to have simply misquoted the section. He was concerned in that case with the question of whether WorkCover Authority (NSW) was entitled to recover from Sun Alliance its administration costs, in circumstances where no payment was made to or on behalf of the worker. The publication of the notice was not relevant to his decision.
529.The applicant also submitted that, in Sadler, Deputy President Roche [sic: Deputy President O’Grady] considered that the Nominal Insurer should have issued a notice to the putative employer, pursuant to s 141(2).
530.What O’Grady DP was considering in Sadler was the onus on Ms Sadler, the worker, to establish that her employer was uninsured at the relevant time, which involved her proving a negative. There was no dispute as to the identity of her employer, but non-insurance was not conceded. O’Grady DP said (at [105]):
“I make the observation that it was open to the Authority to issue a Notice addressed to the Hospital requiring, pursuant to section 141(2) of the 1987 Act, all information relevant to the question of insurance at the relevant time. Had such a course been adopted and responses scrutinised at an early stage in the conduct of Ms Sadler’s claim, it may reasonably be expected that the hiatus in insurance that has been revealed after many years of investigation by those representing Ms Sadler would likely have been established and accepted soon after the claim was forwarded to the Uninsured Liability and Indemnity Scheme. That delay is regrettable and should not have occurred.” (Emphasis added).

531.O’Grady DP’s observations were apposite to the particular circumstances of Ms Sadler’s claim. I do not accept that they establish that there was any obligation on the respondent to issue a notice on APM or any other entity.
532.Section 141(4) provides that “employer” includes any person the Nominal Insurer has reason to suspect is an employer. For the reasons given below, the Nominal Insurer had every reason to “suspect” that the applicant was an employer.
533.The respondent accepts that it bears the onus of establishing that Mr Proud was a worker employed by the applicant; that he sustained injury in that employment; that the injury resulted in incapacity and the need for medical treatment; and whether the reimbursement sought exceeds the amount of the payments made.

Worker

534.Section 4 of the 1998 Act defines “worker” as follows:

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

535.Clause 2A of schedule 1 to the 1998 Act provides:

“2A Contractors under labour hire services arrangements

(1) In this clause--
‘labour hire services contract’ means a contract or arrangement (not being a contract of service or a training contract) under which a person is provided with services to facilitate the performance of work by the person, such as the following services--
(a) services for finding work for the person,
(b) services for payment for work performed by the person,
(c) services for insurance coverage in connection with any such work.
(2) If--
(a) a person (‘a labour hire agency’) under a labour hire services contract with another person (‘a contractor’) arranges for the contractor to perform work for a third person (‘the host employer’), and
(b) the work performed is not 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, and
(c) the contractor neither employs any worker, nor subcontracts with any person, to perform any of that work, and
(d) the labour hire agency provides services to the contractor under the labour hire services contract during the performance of that work,
the contractor is, for the purposes of this Act, taken to be a worker employed by the labour hire agency while performing that work.
(3) For the avoidance of doubt, this clause applies--
(a) where a labour hire agency and a host employer are related bodies corporate, and
(b) in addition to any other provisions of this Act relating to the employment of workers.”

536.The applicant submitted that it did not employ Mr Proud, and APM was a “labour hire agency” and deemed to be his employer for the purposes of s 138 of the 1987 Act.
537.It is in my view necessary to first deal with the applicant’s objection to the respondent relying on Mr Rahman’s first statement. I do not propose to exclude the statement.
538.The applicant submitted that Mr Rahman was somehow misled by Ms Pont, the investigator appointed to take his first statement, and/or that, although he was proficient in English, he thought in Bengali and for complex matters, translated from English to Bengali.
539.The submission is rejected. Ms Pont has given evidence about the circumstances in which Mr Rahman’s first statement was taken.
540.Ms Pont advised Mr Rahman in her email dated 26 May 2021 of the circumstances of her involvement. She stated that she had no part in the claim decision, but her role was to assist iCare by obtaining information. She has given evidence that she had no vested interest in whether any interviewee provided information, and I accept that evidence.
541.As the respondent submitted, the notice was issued in June 2022. Mr Rahman did not raise any complaint about any breach of “privacy, confidence and misrepresentation” by Ms Pont until after the filing of the Amended Application. He did not attach any statement to his Application, and his first statement was attached to the Reply, with which he was served on or about 26 July 2022. He had also been provided with a copy of that statement by Ms Pont on 24 June 2021.
542.Mr Rahman has at all relevant times been represented and had the opportunity to raise any issues he claimed to have with the investigation at preliminary conferences on
15 August 2022 and 10 November 2022.
543.Mr Rahman’s statement was interpreted for him. He signed each page of the statement, as did the interpreter. He acknowledged he had been advised of the possible use of the statement, including that it may be used in proceedings in the Commission. Ms Pont actually referred to the interpreter having been slow, but stressed the importance of Mr Rahman not having any concerns about what he had signed. He has stated that he is proficient in English. There is no evidence that his subsequent statements were interpreted for him.
544.Mr Rahman has stated that he believed that if he provided a statement to Ms Pont, then iCare would pay compensation and he and the company would be relieved of any liability. That does not explain why, if it was the case that Mr Proud was engaged in an unpaid work trial, Mr Rahman did not simply say so at that time.
545.I do not accept that, with the assistance of the interpreter, Mr Rahman was not able to convey in his statement the difference between a person carrying out jobs, but not necessarily through a contract of employment, and an employee.
546.Mr Rahman’s evidence is that he advertised the job on Gumtree; he had always found help through word of mouth; he had in the past recruited by placing ads, to which he often received responses from overseas students; he regularly had Centrelink recipients apply; he started people on casual positions, and sometimes made them permanent part-time employees; and his preference was to advertise and recruit people actively looking for work, rather than go through an agency.
547.Mr Rahman was clearly experienced in employing people, it is assumed by conversing with at least some of them in English; and of conveying to them the difference between paid employment and a job trial, between casual and permanent employment, the hours they would be expected to work; and the payment they could expect.
548.Mr Rahman gave evidence in his first statement that the job was advertised on Gumtree as for a part-time employee, 20 hours per week. It was casual employment to start, and if the person was a good employee, he would put them on part-time or full-time. That does not suggest any confusion between a person carrying out jobs and an employee.
549.As the respondent submitted, the evidence provided in Mr Rahman’s first statement is consistent with Mr Proud’s evidence and the records of APM. Had Mr Proud been engaged on the basis of a work trial, he would have been expected to advise APM of this, rather than, as it recorded on 19 April 2021, that he had started employment with the applicant.
550.In my view, the evidence Mr Rahman provided in his first statement regarding having employed Mr Proud is more likely to be correct, taking into account the other evidence, than that in his second statement. It is also supported by the text messages between Mr Proud and Ms Elchami and Mr Proud and Mr Rahman, which are attached to the factual investigation report. There is no reference to a work trial.
551.The applicant submitted that APM was a deemed employer, pursuant to cl 2A of Schedule 1 of the 1998 Act. That submission is rejected.
552.APM did not hire Mr Proud’s labour to the applicant. As part of his DES, it supported him to gain employment, and could provide assistance to his employer, including negotiating with it on his behalf.
553.As the respondent submitted, the nature of the scheme, under which APM was to arrange for payment of a subsidy to the applicant, is not consistent with a commercial labour hire agreement. That would involve APM lending Mr Proud’s services to the applicant, in return for which it would make payment to APM. APM was not in any sense hiring Mr Proud’s labour to the applicant.
554.As the respondent further submitted, in any event, the requirements of subclause 2A(2) were not satisfied by the arrangement.
555.The evidence has established to my satisfaction that Mr Proud was a “worker” employed by the applicant. APM was not a deemed employer.

Injury

556.Mr Proud stated that he reported the injury to his left knee on 24 April 2021 to Mr Rahman. Mr Rahman confirmed that was the case. Mr Georges confirmed that Mr Proud told him on that day that he had fallen and broken his leg, and he offered to call an ambulance.
557.The occurrence of the injury is further confirmed by the file note made by APM on
26 April 2021 that Mr Proud had injured himself at work and was asking about the medical requirements.
558.In addition, Mr Proud attended Bankstown-Lidcombe Hospital on 24 April 2021 with a history of injuring his left knee at work. His knee was mildly swollen. He had both a CT and MRI.
Dr Konidaris recorded a history of the injury and treatment. He expressed no concerns that the injury had not occurred as reported to him.
559.None of the applicant’s witnesses has suggested that Mr Proud presented at work on any of the days he attended with any sign of injury to, or disability affecting, his left knee; and on
24 April 2021, he reported an injury and had objective signs of injury. The evidence is all one way, in support of the fact that Mr Proud sustained an injury to his left knee on that date.
560.While Mr Proud has given somewhat differing accounts of the precise mechanism of injury, that does not mean that the conclusion cannot be reached that he sustained injury arising out of or in the course of his employment. The evidence establishes that he did sustain such injury; and I so determine.

Substantial contributing factor

561.Section 9A of the 1987 Act provides:

“9A No compensation payable unless employment substantial contributing factor to injury

(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note : In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section10, 11 or 12 applies.”

562.The applicant sought to rely on studies relating to osteopenia, from which Mr Proud suffers, and submitted that his injury could have occurred “spontaneously, and/or without any forces associated with occupational stress”. It has not adduced any medical evidence to support that submission.
563.Dr Kondaris was aware, as he noted in his report dated 28 May 2021, of Mr Proud’s medical history. He did not suggest that the injury had occurred “spontaneously”.
564.The applicant’s submission that Dr Konidaris’ evidence cannot be accepted as “expert evidence” is rejected. Dr Konidaris is an orthopaedic surgeon who has treated the applicant. He was not qualified by either party.
565.The applicant referred to both rule 35(3) of the Rules and Procedural Direction PIC 4.
566.Procedural Direction PIC 4 concerns the provision of expert evidence in the form of either an expert report prepared for a party to proceedings, or an expert witness proposed to be called to give evidence in the proceedings. (Emphasis added). It also provides that the President or a Member before whom a matter is listed may excuse a party from complying with any aspect of the direction before or after the time for compliance with any action required.
567.Rule 35(1) provides that rule 34 applies to an expert witness. Rule 34 applies to calling witnesses to give oral evidence, and the requirement that they provide a written statement of their evidence.
568.Rule 35(2) provides that a party proposing to call a witness to give evidence as an expert witness has a duty to ensure the witness is aware of and adheres to any procedural direction concerning the use of expert witnesses.
569.Rule 35(3) provides that unless the Commission orders differently, expert evidence that does not comply with the procedural direction referred to in subrule (2) is not admissible in Commission proceedings.
570.Dr Konidaris was not qualified by either party. He treated Mr Proud’s injury. Had it been necessary, and I do not believe it is, I would have ordered that his evidence was admissible. If the applicant’s submission was correct, then evidence from treating doctors would almost never be admissible in proceedings in the Commission.
571.The applicant has not relied on any medical evidence. Dr Konidaris did not suggest that
Mr Proud’s injury was due to, or could have been due to, osteopenia. While it may have made him more susceptible to fractures (and there is no evidence to that effect), an employer takes its employees as it finds them.
572.The applicant sought to rely on “medical literature”. As the respondent did not object to the evidence, I have reviewed it.
573.In summary, the evidence relied on by the applicant demonstrates no more than:
·        the presence of rheumatoid arthritis was associated with lower bone density and increased falls and fractures;
·        proximal tibial stress fractures can be associated with degenerative knee osteoarthritis;
·        delayed diagnosis of a tibial stress fracture may be associated with therapy used on a patient with rheumatoid arthritis;
·        fractures that may be most attributable to osteoporosis (none of which was the fracture sustained by Mr Proud, although tibial fractures were highly likely to be due to osteoporosis in older Caucasian women);
·        non-traumatic bilateral tibial fractures could present as flares in rheumatoid arthritis (a study of two cases);
·        the most common fractures in people with osteoporosis include the spine, pelvis, hips, and bones that take the stress of falling, such as wrists, forearms, and upper arms;
·        rheumatoid arthritis is a vital risk factor for developing osteoarthritis, and
·        prolonged periods of non-weight bearing are deleterious to skeletal integrity.

574.None of the evidence relied on by the applicant is persuasive.
575.I am satisfied on the evidence that employment was a substantial contributing factor to the claimant’s injury.

Incapacity and medical treatment

576.Mr Proud provided the respondent with COCs that recorded his capacity for work.
577.There is evidence that the respondent provided and updated injury management plans, and Mr Proud cooperated with its rehabilitation provider, Rehab Management, providing weekly job logs. Rehab Management was active in liaising with both his GP and physiotherapist to obtain approval for an upgrade in the hours he could work, and this was achieved. The fact that he was limited to using public transport was a factor in his ability to obtain employment.
578.I am satisfied that the weekly benefits paid by the respondent were appropriate.
579.The applicant did not make any submissions about the reasonable necessity of medical treatment afforded to Mr Proud. However, for completeness, I find that Mr Proud required medical treatment, including attendances on his GP to provide certification of his capacity, physiotherapy, and rehabilitation service, which were directed to assisting him to return to work.
580.I am satisfied that the medical and related treatment undergone by Mr Proud was reasonably necessary as a result of the injury.
581.I have determined that on 24 April 2021 Michael Proud was a worker employed by the applicant; on 24 April 2021, Mr Proud sustained injury to his left knee arising out of or in the course of his employment with the applicant, to which employment was a substantial contributing factor; Mr Proud was entitled to payment of weekly compensation and medical expenses paid to him, for and on his behalf, by the respondent; and at all relevant times the applicant did not hold a policy of workers compensation insurance.
582.The order is set out in the Certificate of Determination.

[2023] NSWPIC 289

20 June 2023