Rai v Beresford - [2021] TASSC 38

[2021] TASSC 38

COURT: SUPREME COURT OF TASMANIA

CITATION: Rai v Beresford [2021] TASSC 38

PARTIES:  RAI, Harjot Singh
  v
  BERESFORD, Darren Leslie trading as

Darren's Home Handyman Service

FILE NO: 598/2021
DECISION

APPEALED FROM: R v DLB trading as Darren's Home Handyman Service [2021] TASWRCT 9

DELIVERED ON:  25 August 2021
DELIVERED AT:  Hobart
HEARING DATE:  24 June 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Workers' Compensation – Entitlement to compensation – Persons entitled to compensation – Who is a "worker" or "employee" – Particular occupations – Volunteer – Friend assisting handyman doing roofing work – No contractual relationship.

Aust Dig Workers' Compensation [46]

Workers' Compensation – Proceedings to obtain compensation – Determination of claims – Evidence – Generally – Dispute as to existence of contractual relationship – Power of tribunal to inform itself as it thinks fit – Evidence as to subjective intentions of parties.

Workers Rehabilitation and Compensation Act1988 (Tas), s 49(1)(a).
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, 209 CLR 95, distinguished.
Aust Dig Workers' Compensation [310]

REPRESENTATION:

Counsel:
             Appellant:  J R C Zeeman
             Respondent:  In person
Solicitors:
             Appellant:  Simmons Wolfhagen

Judgment Number: [2021] TASSC 38
Number of paragraphs: 67

Serial No 38/2021
File No 598/2021

HARJOT SINGH RAI v DARREN LESLIE BERESFORD
trading as Darren's Home Handyman Service

REASONS FOR JUDGMENT BLOW CJ

25 August 2021

The respondent, Darren Beresford, operates a business as a sole trader using the name Darren's Home Handyman Service. On 8 March 2017 the appellant, Harjot Rai, was helping him with work that he was undertaking on the roof of a building in Sandy Bay. The appellant fell through the roof and was badly injured. He made a claim for workers compensation. The claim was disputed. It was referred to the Workers Rehabilitation and Compensation Tribunal. It was dismissed by a Commissioner, Ms L D Wilkins, on the basis that the appellant was not a "worker" for the purposes of the Workers Rehabilitation and Compensation Act 1988 ("the Act"): R v DLB, trading as Darren's Home Handyman Service [2021] TASWRCT 9. The learned commissioner determined that there was no contractual relationship between the two men. That is to say, she concluded that there was no contract for the appellant to be paid for his work. This is an appeal from that decision.
By virtue of s 63(1) of the Act, this appeal cannot succeed unless the appellant establishes an error of law on the part of the Tribunal.

Background

There was uncontroversial evidence before the learned commissioner to the following effect:
·     At all material times the respondent lived in a motel at Lutana. The appellant worked there in late 2014 and early 2015, and met the respondent. They did casual work together on a couple of occasions during that period. The two men worked together at the motel doing maintenance jobs on a couple of occasions in January 2015.
·     On at least two occasions the respondent looked at some cars for the appellant at his request. That did not take long. No payment was made for his assistance.
·     In March 2015 the appellant started working as a taxi driver and his wife took over his job at the motel. They had a young child. Each week from Wednesday to Sunday the appellant's wife worked in the mornings and until about 3pm, while the appellant looked after their child. On those days he then went to work from 6pm until 4am, and his wife looked after the child.
·     In early 2017 the respondent fixed a tap at the appellant's home, and did not charge for his services.
·     Not long before the day he was injured, the appellant was in his taxi when he saw the respondent walking along, carrying shopping bags towards the motel. He gave the respondent a lift. They had a conversation about the appellant helping the respondent with some roof work on the Sandy Bay property on 8 March. The appellant said that he would have to speak to his wife.
·     As a result of that conversation the appellant went to the motel at 7am on 8 March. The respondent was there with another man, Mr Jarzynka. They travelled to the Sandy Bay property. The appellant went in his own car. Mr Jarzynka travelled with the respondent. The three men worked through the morning, stopped for lunch, and had resumed work when the appellant fell through the roof.
The learned commissioner received conflicting evidence from the appellant and the respondent as to the conversation in the taxi. The appellant gave evidence that the respondent said he would pay him for the work. The respondent gave evidence that he did not discuss any arrangements for payment. In her reasons at [49] the learned commissioner made a finding that the respondent did not offer to pay the appellant for the work. That finding has not been challenged in this appeal.

The appellant's contentions

The appellant's notice of appeal contains ten grounds of appeal. In substance, his contentions are as follows:
·     That, in determining whether the parties intended to enter into a contract, the learned commissioner impermissibly took into account evidence as to the subjective intentions of each party (Grounds 1 and 2).
·     That the learned commissioner drew an inference that the respondent was most likely mistaken about something said in a phone conversation when there was no evidence to support that inference (Ground 3).
·     That the learned commissioner erred in making use of evidence as to "post-contractual conduct" in determining whether a contract existed (Ground 7).
·     That the determination that the appellant was not a worker was one that was not open on the evidence (Grounds 4 and 5).
·     That the learned commissioner failed to give adequate reasons for her decision, particularly having regard to a delay on her part in delivering it (Grounds 6, 8, 9 and 10).

Intention to create legal relations

At common law, when there is a dispute as to whether parties intended to enter into contractual relations, a court is required to make an objective assessment of the state of affairs between the parties, rather than identifying "any uncommunicated subjective reservation or intention that either may harbour": Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, 209 CLR 95 per Gaudron, McHugh, Hayne and Callinan JJ at [25].
The learned commissioner referred to that case in her reasons at [8] and [9], and went on to review a number of cases relating to that principle. However she did take into account evidence of the subjective intentions of both parties.
She made findings that the respondent had no intention of paying the appellant for helping him with the roofing work. She said the following at [109]-[110]:
"109 I accept the respondent's evidence that he had no intention of paying the applicant to help him for the roofing work. This is because the applicant had no experience or expertise in roofing work; the discussion in the taxi was fortuitous, in that the respondent had not sought out the applicant to request his assistance, and there was a history of the respondent helping out the applicant on some earlier limited occasions for free. There was also a history of the respondent calling upon another person (Mr Jarzynka) on other occasions when he needed help, but not ever paying for that assistance. This is also consistent with what the respondent said to the WorkSafe Inspector on 10 March 2017, which is before he had the benefit of any legal advice.
110 I accept the submission of counsel for the respondent that the hourly rate being charged by the respondent for the roofing work was a relatively modest figure, and paying other people from that hourly rate would reduce the respondent's profit to virtually nil."
At [113] she rejected the appellant's evidence that the respondent had said in the taxi that he would pay him. At [115] she made a finding that the appellant "was working on the assumption that he would be paid for his time helping the respondent".
Her conclusion that there was no contractual relationship between the parties appears at [118], where she said:
"118 Because I have determined that there was no subjective intention on the part of the respondent to enter into any form of contract with the applicant, and no objective indication of any intention by the respondent to do so, I find that there was no mutual intention between the parties to enter into a contract of any kind. In addition, the absence of any consideration from the respondent, or of any mutuality of obligation, mitigates against the existence of any contractual arrangement."
It is clear that the learned commissioner took into account evidence of each party's subjective expectations. It is true that she also took into account objective evidence, including evidence that the respondent did not pay Mr Jarzynka for his work on the day of the accident or on other occasions when he provided help, evidence that the respondent was charging an hourly rate so low that he would not be able to afford to pay helpers, and evidence that the appellant could have earned money from his taxi driving job instead of helping the respondent with the roof work. However taking into account the evidence of the parties' subjective intentions or expectations was inconsistent with the common law rule.
Grounds 1 and 2 assert that the learned commissioner erred in law as follows:
"1At [7] and [118] of the Determination she misdirected herself as to the law in that she failed to identify the correct legal principle in respect to the question of whether there was an intention to create contractual relations, and in consequence failed to focus upon the correct question in determining whether there was an intention to create legal relations between the appellant and the respondent.
2At [8]-[9] of the Determination she refers to the correct legal principle in respect to the question of whether there was an intention to cerate contractual relations but then misunderstood and misapplied this principle."
At the hearing of this appeal, counsel for the appellant relied on the judgment of Pearce J in Thorpe v Jason Weller Plumbing & Contracting [2015] TASSC 57. That was an appeal from a decision of the Tribunal in which a claimant was held not to have been a "worker" because the parties had no intention to create legal relations. The claimant contended that the only finding reasonably open to the Tribunal was a finding that he was a worker. That contention was rejected. In rejecting it, Pearce J relied on authorities requiring an objective determination as to whether there was an intention to create legally binding relations: Taylor v Johnson (1983) 151 CLR 422; Ermogenous v Greek Orthodox Community of SA Inc (above). However there is nothing in his Honour's judgment that suggests that it was argued that the common law rule requiring a purely objective assessment did not apply.
Section 49(1) of the Act provides as follows:
"(1) The following provisions apply to a proceeding before the Tribunal:
(a) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit."
In my view the power conferred on the Tribunal by s 49(1)(a) to "inform itself on any matter in such manner as it thinks fit" must mean that it is not bound by the common law rule requiring an entirely objective assessment of the state of affairs between the parties. Furthermore, strict enforcement of the common law rule, at least in this case, would involve the sort of technicality that s 49(1)(b) is aimed at avoiding.
Grounds 1 and 2 must therefore fail.

An inference with no basis?

The learned commissioner received evidence of three conversations that occurred in the days following the accident in which the respondent spoke of the arrangements between the appellant and himself. According to the evidence, what he said in the second conversation was inconsistent with what he said in the first and third. That second conversation was with a solicitor, Mr Munting. He created a file note in relation to the second conversation. The appellant contends that the learned commissioner drew an impermissible inference that Mr Munting was mistaken about what the respondent said in that conversation.
The first of the three conversations was on Friday, 10 March 2017 at the scene of the accident when the respondent spoke to a WorkSafe inspector. WorkSafe is part of the Department of Justice. The inspector completed a form called a Workplace Attendance Record. It included a summary of the conversation. That summary included the following:
"I inquired [sic] if Beresford holds a workers compensation policy with a reply of 'no', Beresford indicated that he always works alone and believed that Jot had personal insurance due to being a taxi driver and only helping out for the day (approximately 5 hours before the incident occurred) so he did not need a workers compensation policy.
...
Beresford appeared to be in a highly distressed state over the incident, I advised Beresford to obtain legal advice on the matter and a separate investigation would take place into not having a workers compensation policy."
The second conversation occurred on the morning of 14 March 2017 when the respondent phoned the solicitor, Mr Munting, and spoke to him about the accident. Mr Munting created a typed file note recording details of that conversation, and initialled every page. That file note contains the following:
"Darren tells me that had a contractor fall through the roof. He said he only has public liability and product liability with GIO and does not have any workers compensation.
...
There has been no workers compensation claim yet and no discussion of payment. In relation to wages Darren was just going to get Josh to invoice him and he would pay it. He said he is a one man show who does not normally do rooves."
The third conversation occurred the following day, 15 March 2017, when the respondent saw Mr Munting in his office. Mr Munting again created a file note, recording the respondent's instructions. It includes the following:
"He said that there was no intention to pay Jot for his time. He considered it was a mate helping out a mate.
Apparently in hospital Jot mentioned to a Social Worker that he was going to invoice Darren. It is believed that Jot has an ABN."
The learned commissioner referred to these conversations in her reasons at [87] and [88], where she said the following:
"87 There is are some discrepancies between the file note of the initial telephone discussion between the respondent and his solicitor, and the file note of the meeting the following day. The record of the initial telephone call is that that respondent said that he was intending to ask the applicant to invoice him for the work. The notes of the meeting are that the respondent said he was not intending to pay the applicant, but that applicant had told a social worker at the hospital that he was intending to invoice the respondent.
88 I find that the respondent's solicitor most likely was mistaken in his note of that part of the initial telephone call. This is because the respondent had told the WorkSafe Inspector on 10 March 2017 that the applicant was 'only helping him out' (and this was before the respondent had received any legal advice), and then when he met his solicitor on 15 March 2017, he gave instructions that he had no intention to pay, it was just a mate helping out a mate. It is clear from the solicitor's notes of the meeting on 15 March 2017 that the respondent understood that the applicant had told the social worker in hospital that he had been going to invoice the respondent. I had the benefit of hearing the respondent give evidence. He speaks very fast. I think it is most likely that the respondent's solicitor misunderstood that part of the phone conversation, rather than the respondent changing his story between the Friday and the Tuesday, and then changing it back again on the Wednesday."
The last sentence of [88] is the subject of ground 3 of the notice of appeal, which asserts that the learned commissioner erred in law as follows:
"3 At [88] of the Determination she drew an inference that the respondent's solicitor was most likely mistaken in part of his note of his telephone conversation with the respondent on 14 March 2017 in circumstances where there were no primary facts upon which this secondary fact could be inferred, this secondary fact being crucial to the ultimate finding as to whether or not the appellant was a worker for the purposes of the Workers Rehabilitation and Compensation Act1988."
The drawing of an inference of fact upon which a decision is based amounts to an error of law if the inference cannot be drawn from the facts as found: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367. The appellant contends that the learned commissioner made such an error in the last sentence of [88]. I disagree.
It should be noted that the learned commissioner did not make a finding of fact that Mr Munting misunderstood what the respondent was saying during the phone conversation. She went only so far as to opine that that was the most likely explanation for the discrepancy between what the respondent was recorded to have said in the phone conversation and what he was recorded to have said in the other two conversations. She mentioned one other possibility – that he changed his story on the Tuesday and changed it back again on the Wednesday. It was open to her to find as a fact that Mr Munting's note of the phone conversation was inaccurate, given that (a) she had made a finding that the respondent had not offered to pay the appellant for his work, (b) there was evidence that the respondent could not afford to pay helpers from the remuneration he was to receive, (c) Mr Jarzynka was not paid for his work on the day of the accident or on previous occasions, (d) there was evidence of the respondent saying that the appellant was "only helping out" and that he had no intention to pay him, and (e) she had heard the respondent giving his evidence and was able to assess the likelihood of someone misunderstanding him. She did not go so far as to make a finding that the respondent had been misunderstood, but it was certainly open to her to conclude that that was a strong possibility, and consequently to attach no weight to what Mr Munting recorded about a contractor, and a plan to get an invoice and pay it.
Ground 3 must therefore fail.

Conduct after the accident

Ground 7 of the grounds of appeal asserts that the learned commissioner erred in law as follows:
"7 She failed to identify and apply the correct legal principle in respect to the use of post-contractual conduct and as a consequence took into account irrelevant evidence."
The use of the term "post-contractual" is inappropriate since there is a dispute as to whether a contract existed. This ground is concerned with conduct after the parties made arrangements for the appellant to assist the respondent on the day of the accident.
In Mushroom Composters Pty Ltd v I S & D E Robertson Family Trust [2014] NSWSC 164, McDougall J observed, at [127], that in some cases "it is necessary to look at the conduct of the parties at a time when or after one of them says a contract was formed, to see if indeed a contract was formed at all." His Honour prefaced a review of the relevant authorities with the following, at [130]:
"... the authorities seem to me to establish two, related, propositions. The first is that post-contractual conduct may be relevant to prove whether a contract of the kind for which one party contends was made. The second is that such conduct may be relevant to prove an admission by the other party of such a contract, or of (some of) its terms, or of a fact relevant to the existence of such a contract."

The appellant's written outline of submissions, in dealing with this ground, focussed on evidence of the respondent's conduct that was relied upon to prove admissions by him of facts relevant to the existence of a contract. There is nothing in the learned commissioner's reasons to suggest that she took an erroneous approach to the evaluation of such evidence. She clearly took into account the evidence of what the respondent said on 10, 14 and 15 March.
At the hearing of the appeal, when the appellant's counsel addressed this ground he made submissions about the evidence of what happened between the arrival of the parties at the house and the time of the appellant's fall. There was evidence that, after they arrived at the site, the respondent gave the appellant some gloves and some safety glasses, and that he told him to walk on the roofing nails, and not to go close to the edge of the roof. There was evidence that the respondent supplied some tools, and that the appellant had none. There was evidence that the respondent gave the appellant and Mr Jarzynka instructions as to what they were to do, how they were to do it, when they were to stop for lunch, and when they were to resume work. The learned commissioner did not mention these details in her reasons. Counsel for the appellant submitted that she should have, and that her failure to mention these details indicated that she erred in law in her approach to "post-contractual conduct".
I reject that submission. The evidence as to gloves, safety glasses, tools, safety advice, instructions, and the timing of the lunch break was all equally consistent with the appellant being an unskilled unequipped unpaid volunteer assisting the respondent in one job in the course of his business, and with him being an unskilled unequipped employee hired for the day to assist the respondent with one job in the course of his business. There is nothing in the learned commissioner's reasons to suggest that she considered that it was contrary to principle for her to have regard to that evidence. There is no reason why she should have considered that evidence important enough to mention.
Although ground 7 asserts that the learned commissioner took into account irrelevant evidence, the argument presented to me was that she failed to take into account relevant evidence. For the reasons stated, this ground must fail.

A finding not reasonably open?

The learned commissioner's ultimate finding, at [119], was as follows:
"119 There being no contract of any kind between the applicant and the respondent, the applicant was not engaged under a contract of service with the respondent, and was not a 'worker' within the meaning of the Workers Rehabilitation and Compensation Act 1988."
Grounds 4 and 5 each contain assertions to the effect that, as a matter of law, that finding was not open to her. They assert that she erred in law as follows:
"4 At [119] of the Determination she found that the appellant was not a worker for the purposes of the Workers Rehabilitation and Compensation Act 1988 when such finding was not reasonably open on the whole of the evidence.
5 At [119] of the Determination she found that the appellant was not a worker when no Tribunal acting judicially and properly instructed as to the law could have reached such a conclusion."
Section 25(1) of the Act provides that if in any employment "a worker suffers an injury, not being a disease, arising out of or in the course of his employment ... his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act ... to the worker".
In s 3(1) of the Act, "worker" is defined as follows:
"worker means –
(a)any person who has entered into, or works under, a contract of service or training contract with an employer, whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, or is oral or in writing; and
(b)any person or class of persons taken to be a worker for the purposes of this Act –
and when used in relation to a person who has been injured and is dead, includes the legal personal representatives or dependants of that person or other person to whom or for whose benefit compensation is payable".
The question whether the appellant was a "worker" or not is a question of fact. The question whether it was open to the Tribunal to make a finding that he was not a worker is a question of law: Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354 per Crawford J (as he then was), with whom I agreed, at [22]-[28].
As Jordan CJ said in The Australian Gas Light Co v The Valuer-General (1940) 40 SR(NSW) 126 at 138:
"... if the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law."
If different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact: Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 per Mason JA (as he then was) at 557.
Counsel for the appellant submitted that the evidence as to the totality of the relationship between the parties led to only one possible conclusion, namely that the appellant was a "worker" as defined. In his written outline of submissions, the facts that were said to leave no other conclusion open were listed as follows:
"a) The Respondent exercised, and had the power to exercise, control over what work the Appellant did and how he did it;
b) The Appellant was subject to the Respondent's direction at all time [sic];
c) The Respondent supplied all the tools and equipment;
d) The Respondent provided the Appellant with gloves and glasses for the work
e) The Respondent determined the start and finish time of work;
f) The Respondent determined when the lunch break was to be taken;
g) The Appellant had no ability to delegate;
h) The Appellant provided his labour only;
i) The Appellant had not [sic] business name or brand; and
j) The Appellant had no insurance."
It was the respondent who carried on a handyman business, and who had been engaged to undertake some roofing work on the house where the accident occurred. All of the facts listed above were equally consistent with the appellant being an unskilled unequipped unpaid volunteer helping a friend, and with him being an unskilled unequipped assistant who had been engaged as an employee for the day. They did not compel a conclusion that he must have been engaged by the respondent pursuant to a contract.
The conclusion that the appellant was not a "worker" was supported by other evidence that I have already referred to. Nothing had been said about him getting paid. The respondent's hourly rate was so low that he could not afford to pay helpers for their assistance. He did not pay Mr Jarzynka for his work on the accident site or on the previous occasions.
Grounds 4 and 5 have no merit at all. They must fail.

Adequacy of reasons and delay

The remaining grounds of appeal relate to contentions that the learned commissioner erred in law by failing to give adequate reasons for her decision, and that she had a duty to give unusually thorough reasons because of her delay in reaching a decision.
The Tribunal hearing concluded on 14 October 2019. The learned commissioner delivered her determination some 16 months later, on 26 February 2021. Section 49(1)(b) of the Act, quoted above, contains a requirement that a proceeding before the Tribunal be conducted "with as much expedition as the requirements of this Act and a proper consideration of the matters to be resolved permit".
Ground 10 of the notice of appeal asserts that the learned commissioner erred in law by failing to comply with s 49(1)(b). I think it is clear that non-compliance with that provision could not, of itself, make a determination or order of the Tribunal void or voidable. Counsel for the appellant did not make any submissions to that effect. A breach of a statutory requirement regulating the exercise of a statutory power will not result in invalidity unless it was a purpose of the legislation that an act done in breach of the provisions should be invalid: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. If a determination of the Tribunal is not made as expeditiously as s 49(1)(b) requires, but is not otherwise affected by an error of law, it would not be consistent with the purpose and object of the Act for the determination to be invalid. For one thing, that would result in a need for a new hearing. The non-compliance asserted in ground 10, if established, would therefore not warrant allowing this appeal. Ground 10 must therefore fail.
Under s 61(3) of the Act, if the Tribunal makes an order in respect of a claim for compensation referred to it, subject to some exceptions not presently relevant, "it is to provide a statement in writing of its reasons for making the determination to which the order relates". A failure to give adequate reasons amounts to an error of law: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
When there is a duty to give reasons, a tedious examination of detailed evidence is not required, nor is a minute explanation of every step in the reasoning process Soulemezis v Dudley (Holdings) Pty Ltd (above) at 259; James v Eyles [2007] TASSC 55 at [27]. As Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, "Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."
However, when a judgment or decision is given after an unusually long delay, it is necessary for the judge or decision-maker to give a more comprehensive statement of reasons than would ordinarily be required. In R v Maxwell (1998) 217 ALR 452, the New South Wales Court of Criminal Appeal dealt with an appeal against a conviction for murder. The appellant had been tried by a judge alone. There had been a delay of some ten months between the trial and the judgment. Spigelman CJ, Sperling and Hidden JJ said, at 463:
"Indeed, a delay of the order of 10 months is, of itself, such as to require a more comprehensive statement of the relevant evidence than would normally be required, in order to manifest, for the parties and the public, that the delay has not affected the decision."
In Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189, 140 FCR 17, Carr, Emmett and Gyles JJ said the following, at [71]-[73]:
"[71] ... After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.
[72] In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath [2001] NSWCA 416 at [34] and [53]).
[73] Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge's advantage, confidence will be maintained in the decision."
Grounds 6 and 9 of the notice of appeal assert that the learned commissioner erred in law in the following respects:
"6 She failed to give adequate reasons in so far as she failed to deal with the substantial points that were raised, including findings on material questions of fact."
"9 Her delay in making the Determination and Order amounted to a denial of natural justice, in that the delay created a substantial risk that she was not able to fairly or reasonably deal with the issues, given the passage of time."
The learned commissioner's statement of reasons is 28 pages long. It contains 107 paragraphs. At face value it appears to make findings as to all important factual issues, to state the basis of every finding on a disputed issue, to state what inferences were drawn from the facts found and the basis for each inference, and to expose the reasoning process which resulted in the conclusion that the parties did not enter into a contract. It appears to be as thorough as the delay of 16 months necessitated. However the appellant contends that there were important matters that the learned commissioner failed to mention, of such significance that, taking into account the 16 month delay, the statement of reasons should be regarded as inadequate. It is necessary to consider the various matters that the learned commissioner is said to have omitted to address.
Ground 8 of the notice of appeal alleges that she erred in law as follows:
"8 She ignored evidence critical to the issue of the existence of a contract, specifically
a)that part of the respondent's solicitor's note dated 14 March 2017 that provides 'Darren tells me that he had a contractor fall through the roof';
b)that the respondent gave the appellant gloves and safety glasses before commencing work on Wednesday 8 March 2017, that the appellant worked under direction, that the appellant had a lunch-break and that the respondent supplied all tools; and
c)the contents of the 'Incident Advice' form completed on 10 March 2017 by Mr Malcom Armsby."
Ground 8(a) refers to Mr Munting's file note of 14 March 2017. The learned commissioner did not ignore it. She referred to it in her reasons. She decided not to attach weight to it. That course was open to her, for the reasons stated above in relation to ground 3. It did not support the case for either party.
As to ground 8(b), I have already dealt with the evidence relating to the arrangements on the day of the accident, first in relation to ground 7, and then in relation to grounds 4 and 5. The learned commissioner was not obliged to refer to every piece of evidence in her reasons. The evidence as to the arrangements on the day was not, as ground 8 asserts, "critical to the issue of the existence of a contract" for the reasons explained above.
Ground 8(c) relates to a form completed by a man named Malcom Armsby. On 10 March 2017 he was an officer of WorkSafe Tasmania. The form records that he received a phone call from the respondent at 8.58am, had a conversation with him, and recorded the details on an "Incident Advice" form. Material on that form of arguable relevance to the appellant's status was to be found in two places. On the first page, Mr Armsby had written this:
"Description of the Incident: Subcontractor? Jot (caller to gather full name etc.) was working with caller on the roof ...".
On the second page of the form, against the words "Injured person's relationship to the PCBU", Mr Armsby typed "Worker".
The learned commissioner referred to the Incident Advice form in her reasons at [77], but not to Mr Armsby's use of the words "subcontractor" and "worker" in that form. Mr Armsby did not give evidence before the Tribunal. The respondent was not cross-examined about what, if anything, he said to Mr Armsby about the appellant's status. There was no evidence as to why Mr Armsby might have thought that the appellant was possibly a subcontractor, or why he thought he should be designated as a worker.
During their phone conversation, Mr Armsby advised the respondent to complete an "Incident Notice Form", which he did. That form contained a section headed "Relationship to the entity notifying". Under that heading there were seven boxes which the person completing the form could use to indicate the relationship. The alternatives were as follows:
"Ʒ¨      Worker
¨      Self-employed
¨      Member of the public
¨      Labour hire worker
¨      Contractor
¨      Group trainee
¨      Other (specify)".
The respondent placed an X in the box for "Contractor". He was cross-examined about the contents of the form, but said he did not remember seeing that document before. There was no questioning as to why he placed an X in the box for "Contractor".
The contents of the Incident Advice and the Incident Notice Form were relied on by the appellant's counsel in the Tribunal proceedings as evidence of a contractual relationship between the parties, but were not mentioned by the learned commissioner in her reasons. The appellant now contends that that evidence was so important that failure to mention it amounted to an error of law.
The learned commissioner made some general findings as to the credibility of the parties in her reasons at [19], as follows:
"19 In relation to the oral evidence of each of the applicant, and the applicant's wife and the respondent, there were inconsistencies between their written statements in evidence and the evidence that they gave before the Tribunal. I do not consider that any of them were doing anything other than telling the truth to the best of their ability in the hearing, but the many internal inconsistencies have meant that I have not been able to find any particular witness to be significantly more credible than any others in making the findings of fact that are set out below."
The learned commissioner made some findings as to the extent of the respondent's knowledge and his level of sophistication at [111], as follows:
"111 The respondent is clearly not sophisticated in relation to legal requirements or obligations surrounding the sorts of activities which might arise in his general line of business. He was unaware of WorkSafe requirements relating to working above height. He was apparently unaware of the Work Health and Safety Act 2012. He did not even consider that he ought to report the accident until someone told him he was obliged to. On the evidence as it stands, I consider it unlikely that the respondent turned his mind to anything other than his immediate need to get some extra help in relation to getting the roofing job done."
The respondent had not received any legal advice before he spoke to Mr Armsby and filled in the Incident Notice Form. It seems clear from the evidence that, at least until he received legal advice, the respondent would have had very little understanding of the distinctions between a subcontractor, an employed worker, and an unpaid volunteer helper. Having regard to the thoroughness of the learned commissioner's reasons in other respects and the very limited significance of the contents of the two forms, I think it is reasonable to infer that she did not refer to the contents of the forms, as distinct from the forms themselves, because she regarded the contents as not being sufficiently significant to mention.
Counsel for the appellant submitted to the learned commissioner that there was a contract of employment between the parties, and that it contained an implied term that the appellant would be paid a reasonable sum for his work. The learned commissioner did not mention the submissions about an implied term in her reasons. The appellant now contends that she thereby erred in law, in that failure to refer to those submissions made her reasons inadequate. I disagree. It is so obvious as to go without saying that, if the parties did enter into a contractual relationship, and no rate of remuneration was agreed upon, then their contract contained an implied term for the payment of reasonable remuneration. The respondent was represented by counsel in the Tribunal proceedings. In her closing oral submissions, his counsel told the learned commissioner that she accepted that "it doesn't matter that there was no agreement about the amount for pay", but that "firstly, you have to find that there is an intention to enter into binding legal relations". There was no need for the learned commissioner to refer to the submissions about an implied term because counsel for the respondent had accepted that those submissions were correct.

That brings me to the end of the submissions as to the asserted shortcomings of the learned commissioner's reasons. I reject all of those submissions for the reasons stated. Grounds 6, 8 and 9 must all fail.

Conclusion

For these reasons, the appeal is dismissed.