Richardson v DF Haulage Pty Ltd - [2018] NSWWCCPD 28

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Richardson v DF Haulage Pty Ltd [2018] NSWWCCPD 28
APPELLANTS:	Brenda Richardson (First Appellant) Kacey Richardson (Second Appellant) Joshua Thomas Richardson (Third Appellant)
RESPONDENT:	DF Haulage Pty Ltd
INSURER:	AAI Ltd trading as GIO – Agent for the NSW WorkCover Scheme
FILE NUMBER:	A1-4790/17
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	23 February 2018
DATE OF APPEAL DECISION:	12 July 2018
SUBJECT MATTER OF DECISION:	Section 4 of the Workplace Injury Management and Workers Compensation Act 1998; Intention to create a legal relationship; application of Ermogenous v *Greek Orthodox Community of SA Inc* [2002] HCA 8; 209 CLR 95, *Ashton v Pratt* [2015] NSWCA 12, Vacik Distributors v Kelly (1995) 12 NSWCCR 30
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellants:	Beilby Poulden Costello Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:	1. The pleadings in matter number 4790/17 are amended to delete “The Estate of the Late Anthony Paul Richardson” wherever it appears. 2. The pleadings in matter number 4790/17 are further amended to nominate Brenda Richardson as the First Applicant, Kacey Richardson as the Second Applicant and Joshua Thomas Richardson as the Third Applicant, wherever they appear. 3. The Arbitrator’s Certificate of Determination dated 23 February 2018 is confirmed.

INTRODUCTION

Brenda Richardson, Kacey Richardson and Joshua Thomas Richardson (the appellants) claimed lump sum compensation pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) together with funeral expenses pursuant to s 26 of the 1987 Act in respect of their deceased husband and father, Anthony Paul Richardson.
Mr Richardson suffered severe injuries on 14 December 2014, when he was leaning over the wheel of a Kenworth prime mover while the cabin of the prime mover was raised and tilted forward. Mr Richardson became pinned between the cabin and the wheel when the cabin dropped down onto him. Mr Richardson died as a result of those injuries on 16 December 2014.
The prime mover was owned by DF Haulage Pty Ltd (the respondent) and was parked on the property of Rocco Fabiano, a director of the respondent, at the time of the incident.
The claim for compensation was disputed in a notice issued pursuant to s 74 and dated 18 November 2015. The respondent disputed Mr Richardson was a worker as defined within s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It also disputed that Mr Richardson was a “deemed worker” within the meaning of cl 2 of Sch 1 of the 1998 Act. In the alternative, it disputed that Mr Richardson was in the course of his employment when he suffered the injuries causing death.
The dispute came to arbitration on 14 December 2017. In view of time constraints the Arbitrator heard submissions limited to the issues expressed in the s 74 notice and foreshadowed a potential telephone conference to deal with the apportionment of any entitlement. The Arbitrator indicated that a claim pursuant to s 66 of the 1987 Act made the day prior to arbitration would also be dealt with, if necessary, on a later occasion.
The Arbitrator handed down a Certificate of Determination (COD) on 23 February 2018, entering an award in favour of the respondent.

The parties

In the Application to Resolve a Dispute (ARD) and in the Application – Appeal Against Decision of Arbitrator (Appeal), the Estate of the Late Anthony Paul Richardson (the estate) was nominated as the first applicant and first appellant respectively. The estate was included in order to address the contingency that none of the appellants were wholly or partly dependent on Mr Richardson in accordance with s 25(1)(a) of the 1987 Act.
Section 25(1)(a) of the 1987 Act provides that if there are no dependants, the prescribed lump sum payment is to be paid to the worker’s legal personal representative. It was not sufficient to nominate the estate as a party to the appeal proceedings and the claim on behalf of the estate should properly be brought by the legal personal representative of the estate.
The appellants’ solicitor advised the Commission that Mr Richardson had died intestate and no application for letters of administration had been made. The reason for not doing so was because Mrs Richardson, who was the appropriate person to make such an application, had no funds and there were no assets in the estate.
I convened a telephone conference with the parties’ representatives on 28 June 2018. At the telephone conference, the respondent conceded that Mrs Richardson was dependent on Mr Richardson for the purposes of s 25(1)(a) of the 1987 Act, but did not concede dependency in respect of Kacey or Joshua Richardson.
As there was at least one dependant that satisfied s 25(1)(a) of the 1987 Act, then it was unnecessary for the legal personal representative to bring a claim. The appellants indicated that the claim by the estate would be discontinued, noting that any claim made pursuant to s 66 of the 1987 Act would have to be brought by the legal personal representative of the estate. The parties indicated that in any event, the claim pursuant to s 66 was not supported by medical evidence and therefore not ready to proceed. In the event of this Appeal succeeding, the appellants advised that the claim pursuant to s 66 (if any) would be brought in separate proceedings.
The appellants filed an amended Application – Appeal Against Decision of Arbitrator (amended Appeal) on 29 June 2018 nominating only Brenda Richardson, Kacey Richardson and Joshua Richardson as appellants.
As a consequence, it is necessary for an order to be made amending the proceedings before the Arbitrator by deleting the estate as a party and renaming the parties accordingly.

BACKGROUND

Prior to 2014, Mr Richardson operated his own trucking business. He and Mr Fabiano had become acquainted while both were performing contract work for another trucking company. They became friends. On occasions, Mr Richardson would also perform haulage work under contract for the respondent. Mr Richardson would submit an invoice for the work done, using an ABN number and would be paid by direct deposit into his bank account.
Before the incident on 14 December 2014, Mr Richardson suffered health problems that resulted in the loss of his truck and motor vehicle driver’s licence. This appears to have happened in 2013.
Mr Richardson and Mr Fabiano had discussions about Mr Richardson commencing some truck driving duties once his truck driver’s licence had been reinstated.
In the meantime, from early to mid-2014, Mr Richardson attended Mr Fabiano’s property and washed trucks belonging to the respondent.
The evidence about this arrangement is plagued with inconsistencies. The uncontradicted evidence is that:
(a)    Mr Richardson would be driven to Mr Fabiano’s property to wash trucks and a member of the family would remain with him because of his health;
(b)    Mr Richardson would do this on a Sunday morning, although Mr Fabiano disputed the frequency;
(c)    money would pass from Mr Fabiano to Mr Richardson;
(d)    Mrs Richardson was with Mr Richardson when the incident on 14 December 2014 occurred, and
(e)    Mr Fabiano was not there at the time of the incident.
On the day of the incident, Mr Fabiano had been fixing the fan belt of the Kenworth prime mover with the cabin of the truck locked in the forward tilted position. He temporarily left the premises, leaving the truck in that position and leaving the tools he was using on the truck battery box. His evidence was that he told Mr Richardson not to wash the Kenworth prime mover and not to attempt to fix it.
The factual discrepancies in the evidence are discussed below.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
All parties are content for the matter to be determined on the papers.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the amended Appeal can proceed to be determined on the basis of those documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing. This is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute that:
(a)    the decision appealed against is final and not interlocutory;
(b)    the monetary threshold prescribed by s 352(3) of the 1998 has been met, and
(c)    the Appeal has been filed within the time prescribed by s 352(4) of the 1998 Act.

THE EVIDENCE

Evidence of Brenda Richardson

Mrs Richardson was interviewed by Constable Russell Budin of the NSW Police Force on 19 January 2015. A typed (but unsigned) transcript of that interview is annexed to the ARD.[1]
[1] ARD, pp 91–103.
The transcript records that Mrs Richardson told Constable Budin that on 14 December 2014, she and Mr Richardson left home at about 8.15 am as the day was forecast to be very hot. She said that “We [washed the trucks] … just to pick up a bit of spare cash … after Tony’s stroke … I think we were just on our last truck. So we’d already done the, the body, not the, the um, the wheels. I had one set of wheels to do … We’d already done the bottom of the truck.”[2]
[2] ARD, p 93.
Mrs Richardson said that she went to the other side of the truck to wash the remaining wheels. Mr Richardson was going to put the cabin back in place so that they could clean the windows and mirrors.
She said she heard Mr Richardson call out and that he was telling her to pump something but she did not know what he was referring to. She said he had a handle in his right hand and he put it down on the truck. She said she started to scream and ran for her phone, which had “frozen”. Using Mr Richardson’s phone, she rang 000. She attempted to flag down passing cars and because no-one stopped, ran out onto the road in front of a green car. She told the driver there had been an accident and her husband had his head caught.
The young driver of the green car went to the truck. Mrs Richardson then noticed the driver had rung somebody and he was then talking on the phone. At the same time he was trying to take the weight of Mr Richardson’s body.
Mrs Richardson said that an old man came from the house next door, who tried to pump something resembling a “jack”. She said nothing was happening so she took over. She turned a switch on the truck and started pumping, which started to elevate the truck cabin, but the young driver told her “they didn’t want it up any further”.[3]
[3] ARD, p 94.
Mrs Richardson said that then the police and ambulance and others arrived.
She confirmed that by the time she got to Mr Richardson, the cabin of the truck was already going down.
Mrs Richardson told Constable Budin that Mr Richardson had told Mr Fabiano that if Mr Fabiano needed his trucks washed, he would be happy to do it. She said that Mr Fabiano “used to pay us 50 bucks for each truck that we did”[4] and the work was cash in hand.
[4] ARD, p 96.
Mrs Richardson said that her brother-in-law told her to write everything down, and she did so. That document was at her home.
She said that Mr Richardson was taken to Nepean Hospital where he died two days later.
Mrs Richardson provided a signed statement dated 9 March 2017.[5]
[5] ARD, pp 1–2.
She said that Mr Richardson had been a truck driver for about 40 years and had subcontracted his services and his truck for about 15 of those years. She confirmed Mr Richardson had suffered a stroke in April 2013 and as a consequence they were short of money.
Mrs Richardson stated that she and Mr Richardson had known Mr Fabiano for approximately 10 years. In early 2014 Mr Richardson told her that he had approached Mr Fabiano about any work that may be available and that Mr Fabiano agreed to pay $50 for each truck that Mr Richardson washed.
She said that since then, Mr Richardson would attend the respondent’s premises almost every Sunday and wash between one and five trucks on each occasion. Generally, the payment would be made on the day in either her presence or in the presence of one or both of their children. Most of the time, the payment was made by Mr Fabiano directly to Mr Richardson. Mrs Richardson said that her husband advised her that If Mr Fabiano was not there, he would go to Mr Fabiano’s IGA shop where Mr Fabiano would pay him from the shop till. She never saw Mr Fabiano (or anyone else) give Mr Richardson money for lunch.
Mrs Richardson said that because of her husband’s condition, either she or one of the children (Kacey or Joshua) would stay with him when he was washing the trucks. She said they would help him by filling the buckets and scrubbers with detergent and water and turning the hose on and off. Unless Mr Richardson became very tired, she and the children would leave him to do the actual washing and scrubbing of the trucks.
Mrs Richardson stated that to the best of her knowledge, neither she nor the children were ever paid for work done by Mr Fabiano or Mr Richardson. She said that sometimes Mr Richardson would give them a gift of money or pocket money after receiving payment from Mr Fabiano.
Mrs Richardson stated that on the day of the injury, she and Mr Richardson arrived at the respondent’s premises at 8.30 am. Mr Fabiano advised them there were only two trucks to wash that day. Mr Fabiano was going to Penrith to get parts for one of the trucks. Before he left, he gave Mr Richardson two $50 notes.
She said that one of the trucks had “the cab lowered” when they arrived. She said that she and Mr Richardson went about their “normal process” and Mr Richardson started washing the truck with the cab down.[6] She said that while he was doing the front of the truck, she went around to the other side. After a while, she heard Mr Richardson yell for help. He was caught in the truck. She stated that he died as a result of the incident.
[6] ARD, p 2.
Mrs Richardson stated that she was financially dependent on her husband at the time. Mr Richardson was working for the local club as a courtesy bus driver earning $350 cash and was also in receipt of $650 per fortnight in Centrelink sickness benefits.
Mrs Richardson further stated that she was not aware of any other person who was dependent on Mr Richardson at the time.
Mrs Richardson provided a supplementary statement dated 16 August 2017.[7]
[7] ARD, pp 183–186.
Mrs Richardson described the family circumstances, which are matters relevant to dependency and not pertinent to the issues on appeal so are not repeated here. She further advised that Mr Richardson died intestate. The remaining evidence dealt with the financial and emotional effects of Mr Richardson’s death.
There is a further document attached to the ARD, described in Part 6 of the ARD as a “file note of the Applicant” and said to be dated 14 December 2014.[8] The document records:
“Date of Accident: Sunday 14^th December 2014
Time:11.45 am?
[Mr Richardson] and I had left home around 8.45 am to go and help Roy Fabiano at his property … washing Trucks we did this on most Sundays.
We were just on the last of the 3 Trucks we had to do that day which was a Cab over Kenworth, We had just finished washing the chaise and the front and the sides all we had to do was the top part of the truck but [Mr Richardson] had to put the bonnet up so we could do that. I went around to finish off the wheels on the back left hand side he told me that he was going around to put the bonnet back up, I then heard him singing out to me hon hon, I ran around and found him caught between the bonnet and wheel of the truck with the bonnet slowly coming down and him singing out to Pump the bonnet up but I had no idea what to do, at that time he was still talking to me I was trying to pull a lever on the Truck but that wasn’t working …”
[8] ARD, p 7.
The remaining contents are consistent with Mrs Richardson’s signed statement dated 9 March 2017, recorded at [36]–[45] above and are not repeated here.

Evidence of Kacey and Joshua Richardson

Miss Kacey Richardson also provided a short statement dated 2 February 2017.[9] She said that on 28 September 2014 she (in place of her mother) assisted Mr Richardson to wash three trucks at Mr Fabiano’s house. She said Mr Fabiano was not there at the start, but arrived when they were half way through. Miss Richardson said she saw Mr Fabiano give Mr Richardson some money for the work done. Mr Richardson did not tell her how much he was paid for washing the trucks. Miss Richardson attached photographs of the trucks, which she had taken that day to put on her Facebook page.
[9] ARD, p 3.
Joshua Richardson also provided a short statement dated 15 February 2017.[10] He said he helped Mr Richardson to wash the trucks at Mr Fabiano’s property on numerous occasions, always on a Sunday. He said Mr Fabiano would pay Mr Richardson after they had finished. They would wash anywhere between two to four trucks and trailers. Joshua Richardson said:
“My dad [, Mr Richardson] would always pay me half of what we e[a]rnt $50, depending on how many trucks there were to wash that day.”
[10] ARD, p 6.
Both Kacey Richardson and Joshua Richardson provided supplementary statements dated 16 August 2017. The content of those statements pertains to matters of dependency. As those matters are not relevant to the issues on appeal, I will not record that evidence in this decision.

Other lay evidence relied on by the appellants

The appellants also relied on a number of short documents aptly described by the Arbitrator as “testimonials” from some of Mr Richardson’s friends and acquaintances. The testimonials are summarised as follows:
(a)    On 15 August 2017, Ms Jordanna Miles stated that she was a close friend of Mr Richardson and in early 2014 Mr Richardson told her that he had been washing trucks for Mr Fabiano. He told her that he was going to go there to wash trucks for a “bit of extra money”.[11]
(b)    On the same date, Mr Michael Miles also stated that Mr Richardson told him he was going to wash trucks every Sunday for a bit of extra money. He added that on a number of occasions he spoke to Mr Richardson on the telephone when Mr Richardson was at Mr Fabiano’s property. Mr Miles said that Mr Richardson told him that either Mrs Richardson or one of the two children would accompany Mr Richardson.[12]
(c)    Also on 15 August 2017, Mr Leo Brown and Ms Tanya Brown provided a joint statement that when they socialised with Mr Richardson (who they had known for 20 years), they would often discuss Mr Richardson’s job. The job was to regularly wash trucks for Mr Fabiano for $50 per truck. Mrs Richardson or Joshua Richardson would always accompany Mr Richardson.
(d)    On 14 August 2017, Mr Daniel Bowen said that he had known Mr Richardson for 25 years. He was aware that after Mr Richardson was unable to drive trucks, Mr Richardson had a job washing trucks at Mr Fabiano’s yard. Mr Bowen said that Mr Fabiano offered Mr Richardson a job “washing trucks on weekends once or twice I stopped in at [Mr Fabiano’s] yard and had a yarn with [Mr Richardson] while he was there working …”[13]
(e)    Mr Stephen Turk, who became the licensee of the Bird in Hand Inn, Pitt Town in April 2014, said that he was acquainted with Mr Richardson who would regularly volunteer to drive the courtesy bus and assisted with ground maintenance work at the Inn. Mr Turk said that Mr Richardson “made [him] aware of an arrangement” Mr Richardson had with Mr Fabiano to wash and do basic maintenance of trucks in Mr Fabiano’s yard.[14]
[11] ARD, p 197.
[12] ARD, p 198.
[13] ARD, p 200.
[14] ARD, p 201.

Mr Fabiano’s evidence

Mr Fabiano was interviewed by Constable Budin on 2 February 2015 and an unsigned transcript of interview was included in the ARD.[15] Mr Fabiano provided a background of having known Mr Richardson for approximately eight years. He said they had helped each other over the years and Mr Richardson had also helped Mr Fabiano’s father, who was elderly, in the context of performing their trucking duties. At times both Mr Fabiano and Mr Richardson both sub-contracted to another trucking company and Mr Richardson would also perform sub-contract work for Mr Fabiano occasionally.
[15] ARD, pp 105–124.
Mr Fabiano said that after Mr Richardson suffered a heart attack, he lost his driver’s licence. Mr Fabiano confirmed that he and Mr Richardson had a discussion about Mr Richardson performing some work for Mr Fabiano after having his driver’s licence reinstated.
Mr Fabiano confirmed that on 14 December 2014, he was fixing the Kenworth truck. Mr Richardson, who was at the property washing another truck, offered to assist him but Mr Fabiano declined. Mr Fabiano told him he would ring Mr Richardson if he required help to fix the truck. He advised Mr Richardson he was going to Penrith and that he would have a coffee with Mr Richardson when he returned.
Mr Fabiano reported that Mr Richardson said he would finish the truck he was washing, wash his own car, clean up and go. Mr Richardson indicated that he would be back to see Mr Fabiano after he had passed his driving test, which was the last test to do to have his driver’s licence reinstated.
Mr Fabiano said that when he left to go to Penrith, he had left the cabin of the Kenworth up, the bull bar folded down and the safety latch was on and locked. He had left his tools on the battery box. The detachable handle was in the jack that was used to raise the cabin.
He stated that while at Penrith, he received a telephone call from Mrs Richardson, who was yelling and he thought she said something about a hand being caught. He advised her to call an ambulance and he raced back to the property as quickly as he could.
Mr Fabiano said in the meantime, he rang his next-door neighbour who was not home but advised he would ask for his father to go over to Mr Fabiano’s property. When Mr Fabiano arrived back at the property, all the emergency services were present and they were attending to Mr Richardson. He said the safety latch on the truck had been moved to neutral.
In response to a question from Constable Budin as to whether Mr Richardson worked for him, Mr Fabiano replied “Yep”. Constable Budin then asked:
“Was he working for you or was he just, just doing you a favour?”
Mr Fabiano answered:
“No. He was just helping me out because he was [going to], he was [going to], well, I was hoping he was [going to] work for me, you know, and I was just showing him what to do and, in the trucks and that.”[16]
[16] ARD, p 121.
The transcript recorded a long conversation between Constable Budin and Mr Fabiano in relation to the position of the safety lock, the mechanism of raising, lowering and locking in place the cabin of the truck, as well as the recent service history of the truck.
A typed unsigned statement from Mr Fabiano dated 20 July 2015 was included in the ARD.[17] A signed copy of the same document bearing a hand-written date of 28 October 2017 was filed by the respondent in an Application to Admit Late Documents (ALD) dated 21 November 2017.
[17] ARD, pp 169–182.
Mr Fabiano confirmed that he had come to know Mr Richardson as they had both performed sub-contract work for Thomson Brothers Transport, and they became friends. Mr Richardson also did a few delivery jobs for him which were invoiced under an Australian Business Number (ABN) and paid by direct bank transfer. After Mr Richardson had heart surgery in early 2014, Mr Fabiano did not have contact with Mr Richardson for about three months.
Mr Fabiano said that in about mid-2014, Mr Richardson came to visit twice. On the second occasion, he helped Mr Fabiano wash some of the respondent’s trucks that were parked at Mr Fabiano’s house.
Mr Fabiano was aware that Mr Richardson’s truck and car driver’s licence had been suspended until Mr Richardson was medically cleared to return to driving. Mr Richardson had told him that he had no money. They had a discussion about Mr Richardson potentially doing some work for the respondent once he had his truck driver’s licence reinstated. Mr Fabiano foreshadowed that when that occurred, he would give Mr Richardson a trial to see whether the work Mr Fabiano could offer was suitable. There was no fixed agreement about the proposed arrangement.
Mr Fabiano said that Mr Richardson came to his house on about six occasions in the following months, usually on a Saturday or Sunday. On each occasion Mrs Richardson drove him and worked with him to wash the trucks, which would take about an hour. Mrs Richardson would do small things such as passing him the hose. Mr Fabiano said he would always be there at the time, doing repairs on the trucks. He said he owned four trucks, but only three were kept at his property.
Each time Mr Richardson washed the trucks, Mr Fabiano would give him thirty or forty dollars, depending on how much he had on him at the time. Sometimes he would buy him lunch or give him a box of fruit. Mr Fabiano described the money as “petrol money”[18]. On one occasion, Mr Richardson asked if he could buy some car rims that were on the property, but Mr Fabiano gave them to him because Mr Richardson was helping him by washing the trucks.
[18] ALD dated 21 November 2017, pp 5–6, [15].
Mr Fabiano estimated that Mr Richardson would clean the trucks on average once every two or three weeks, and the only time Mr Richardson came on consecutive weekends was 7 December 2014 and 14 December 2014. Mr Richardson would also wash his own car when he was finished washing the trucks.
On 7 December 2014, Mr Fabiano was not at home when Mr and Mrs Richardson came past his house. Mr Fabiano said Mr Richardson rang him and advised him that he saw the trucks were dirty. Mr Fabiano told Mr Richardson to clean the trucks and that he would bring both Mr and Mrs Richardson some lunch and pay Mr Richardson fifty dollars. Mr Fabiano returned home about an hour later and gave Mr Richardson the fifty dollars and lunch for both Mr and Mrs Richardson.
On 13 December 2014, the fan belt on one of the respondent’s trucks broke. Mr Fabiano took the truck to an electrician, and the truck was able to be driven back to Mr Fabiano’s house that day. Mr Fabiano arranged for an electrician to come to his property to inspect the truck the next day. The electrician attended on 14 December 2014 and advised the truck had a broken fan belt. Mr Fabiano said that at about 7 am, after the electrician had gone, he left to purchase some spare parts so that he could fix the truck himself. He returned home, but at about 7.30 am he was preparing to leave again when Mr Richardson and his wife arrived. Mr Richardson asked if he could help clean the trucks.
Mr Fabiano stated there were only two trucks that day in the driveway. Mr Fabiano told Mr Richardson to clean the smaller truck but not to touch the large truck because he was fixing it. Mr Fabiano told Mr Richarsdon that he did not want the truck washed because he had his tools laid out on the motor. Mr Richardson then offered to stay and help Mr Fabiano fix the truck, but Mr Fabiano declined the offer and told Mr Richardson not to touch the big truck. The cab of the truck was in a titled position to enable Mr Fabiano to work on the motor.
Mr Richardson agreed to wash the small truck only. Before Mr Fabiano left, he gave Mr Richardson either $40 or $50, which he told Mr Richardson was petrol money for driving to his place two weeks in a row. Mr Fabiano said that he did this because he would be unable to buy him lunch as he did not plan to return. Mr Fabiano said: “I just figured I would give him some cash for helping me out.”[19]
[19] ALD dated 21 November 2017, p 9, [38].
Mr Fabiano said he left the house, but at about 9.30 am he received a phone call from Mrs Richardson, who was screaming and sounded very panicked. He thought she was saying Mr Richardson had caught his hand. He told her to immediately call an ambulance and Mrs Richardson hung up the telephone.
Mr Fabiano stated he then called his next-door neighbour, who he knew as “Dwayne”. The neighbour was not at home, but said his father was at home and he would call him and ask him to check what was happening.
Mr Fabiano immediately drove home and arrived within about 10 minutes. When he arrived, emergency service personnel were already present and Mr Richardson was “lying down on the ground”[20] in the driveway. A police officer told him that Mr Richardson had been under the truck, and that the police officer had lifted the truck by pumping the hydraulic pump.
[20] ALD dated 21 November 2017, p 10, [46].
Mr Fabiano described the mechanism for lifting and lowering the cabin of the truck. He said that before leaving that morning he had lifted the cabin to the point where the safety latch was automatically engaged. The lever to raise the cabin was in the higher position. He said he was advised by the police and the neighbour’s father that when they arrived, the lever was in the lower position. Mr Fabiano said he did not see whether the safety latch was engaged or disengaged when he arrived back at home.
He said that for the cabin to be lowered, the safety latch must have been disengaged and the lever must be put in the lower position.
The truck was taken by the police and returned in January 2015. It had been inspected and Mr Fabiano was told that there were no faults identified with the truck.
Mr Fabiano denied employing Mr Richardson. There was never any verbal or written employment agreement. He said he would give Mr Richardson petrol money (between $30 and $50), fruit or lunch and on one occasion a set of car rims, as a gesture of goodwill because Mr Richardson had no money. Mr Fabiano “felt bad” for Mr Richardson. Mr Fabiano denied that he ever called Mr Richardson to ask him to help. He said Mr Richardson would call him if the weather was fine and Mr Fabiano would say he could come and clean the trucks if he had nothing to do. There were no set days to clean the trucks and Mr Richardson would occasionally contact him to tell Mr Fabiano he was busy and would not be coming to clean the trucks.
Mr Fabiano always left a broom and bucket in the driveway for anyone to use to clean the trucks. He said Mr Richardson only ever cleaned one or two trucks, and that he was never required to tilt or lift the cabin or clean under the truck. Mr Fabiano said that he would usually be there with Mr Richardson and would wash one of the trucks, but on two or three occasions he may have left Mr Richardson and his wife unsupervised because as he was his friend, he could leave Mr Richardson unattended.

Mr Tate’s evidence

Annexed to the ARD is an unsigned statement said to be by Mr Arthur William Tate dated 25 August 2015.[21]
[21] ARD, pp 133–138.
Mr Tate is the father of Duane Tate (referred to as “Dwayne” by Mr Fabiano). Duane Tate was Mr Fabiano’s next-door neighbour and was the person Mr Fabiano telephoned after he received the telephone call from Mrs Richardson on 14 December 2014.
Mr Tate said that he visited his son from time to time and observed that there were trucks parked next door outside Mr Fabiano’s place.
On the morning of 14 December 2014, Mr Tate was at his son’s house minding his two grandsons and his great granddaughter. During the late morning, he said he heard a male and female having a heated argument, but couldn’t discern what they were saying. The male and female were on the other side of a truck parked at the far side of the house. The arguing continued for four to five minutes. Mr Tate did not want the children to hear the argument so took them inside.
After about half an hour he went outside and sat on his son’s veranda. He noticed a woman running down the driveway towards the road and she was yelling “Help me. My husband is under the truck.”[22] Mr Tate ran over to the truck. The cabin of the truck was lowered as far as it would go and a man was jammed between the cabin and the left-hand side front wheel, with his shoulders and head under the cabin of the truck. The mid-section of his trunk was resting on the wheel and both legs were touching the ground.
[22] ARD, p 135, [11].
Mr Tate stated the man was making no noise whatsoever so he checked for a pulse on his legs but could not feel one. A young couple from a passing car also came over and the male felt for a pulse and said he thought there might have been one.
At that time, Mr Tate’s son Duane called Mr Tate. Duane told his father how to jack up the cabin and Mr Tate jacked the cabin up slightly so that the weight of the truck was taken off the man, who remained stuck. An ambulance officer then told Mr Tate to jack the cabin up fully, but as he had a shoulder problem, Mr Tate asked a police officer to do it.
A typed unsigned statement dated 4 September 2015 from Mr Geoffrey Azzopardi, auto-electrician, was also annexed to the ARD.[23]
[23] ARD, pp 139–142.
Mr Azzopardi said he attended Mr Fabiano’s property on 13 December 2013 at about 2 or 3 pm. There was nobody at the property. He could not recall how he was able to start the truck, but did so, and found the fan belt was missing. He advised his boss, who told him that Mr Fabiano would fix the truck himself. In order to inspect the truck, he was required to lift the cabin, which he did so to its highest limit, which did not require using the safety latch. He stated that when he lifted the cabin, he noticed there was an issue with the safety latch, which he reported to his boss. He said that when he had finished the inspection, he lowered the cabin to its driving position.
Both Constable Russell Budin and Constable Monique Cini also provided signed statements, both dated 25 December 2014.[24] They had been called to the scene of the accident on 14 December 2014.
[24] ARD, pp 22–35.
Constable Budin stated that at 11.50 am on that day, he heard a police radio broadcast in relation to a man who was trapped and that urgent emergency services were required. He said that he and Constable Cini arrived at the scene at 11.57 am. He ran to the truck and put his head up under the nearside wheel where he observed Mr Richardson’s face. He checked Mr Richardson for breath and pulse but could not feel either. He then jacked the cabin up and with the assistance of ambulance officers, removed Mr Richardson. Both he and Constable Cini performed CPR for some time. Mr Richardson was then transported by ambulance to Nepean Hospital. A police photographer took photos of the truck, which were annexed to the statement.
Constable Cini recorded a history of events consistent with the statement of Constable Budin.
The Coronial Brief of Evidence, Coroner’s Court findings and Autopsy report were also annexed to the ARD.[25] On 3 July 2015, the Deputy State Coroner dispensed with an inquest and issued the cause of death to be hypoxic brain injury complicating traumatic asphyxia.

THE ARBITRATOR’S REASONS

[25] ARD, pp 8–70.

The Arbitrator recorded in great detail the statement evidence of each of the appellants and Mr Fabiano. She also summarised the testimonials from Mr Richardson’s friends and acquaintances.
Following the review of the evidence before her, the Arbitrator identified the relevant legislation and caselaw. The Arbitrator discussed the distinction between the concept of a “contract of service” as defined by s 4 of the 1998 Act, and a contract for services, the latter expression describing a person who conducts a trade or business.
Referring to the High Court decision in Stevens v Brodribb Sawmilling Co Pty Ltd,[26] the Arbitrator summarised the indicia she was required to consider to ascertain whether an employment relationship exists. She observed that applying the indicia was not always straightforward and said that she was required to look at the “totality” of the relationship.[27]
[26] [1986] HCA 1; 160 CLR 16 (Stevens v Brodribb).
[27] Richardson v DF Haulage [2018] NSWCC 51 (Reasons), [38].
The Arbitrator referred to the “deemed worker” provision in cl 2 of Sch 1 of the 1998 Act and the matters to be established to satisfy that provision.
The Arbitrator quoted the decision of Deputy President Roche in Secretary, Department of Family and Community Services v Bee,[28] wherein the Deputy President said:
“The authorities are clear that the question of an intention to create legal (contractual) relations requires an objective assessment of the state of affairs between the parties ... ’Intention’ describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened …”
[28] [2014] NSWWCCPD 66, [42].
In summary, the Arbitrator said that she was required to objectively decide whether she could accept that Mr Richardson and Mr Fabiano (or his company) intended the arrangement between them to create a legally enforceable contractual relationship.
The Arbitrator noted that the evidence was “littered with inconsistencies”[29] but regarded the evidence of the witnesses as a genuine attempt to describe their understanding of the nature of the arrangement between Mr Richardson and Mr Fabiano. She said that:
“In a case such as this, there are bound to be inconsistencies such that I must endeavour to balance them in determining which is more credible or acceptable having regard to the context in which they were made.”[30]
[29] Reasons, [41].
[30] Reasons, [43].
In respect of the testimonials, the Arbitrator took the view that the evidence constituted only what had been told to them and did not assist in respect of consideration of the legal concept of “worker” or “deemed worker”.
The Arbitrator referred to the submissions made on behalf of the appellants with respect to the examples of indicia that were sufficient to establish Mr Richardson was a “worker”. She noted the submission that the arrangement was informal, but that of itself was not sufficient to exclude Mr Richardson from an employment relationship. She further noted that it was argued that each occasion when Mr Richardson cleaned the trucks was a discrete contract of employment. The thrust of the appellant’s argument was that whatever the amount or character of the reward, it was made on the basis that Mr Richardson was performing work that was for the benefit of the respondent’s business. Nothing turned on the presence of Mrs Richardson or the two children acting as support persons when washing the trucks and there was nothing to suggest they received any commercial gain.
The Arbitrator noted the submission that any money passing to Joshua was simply a gift and was not evidence of any subcontract arrangement.
She further noted the submission that little weight ought to be afforded to the statement evidence of Mr Fabiano in light of his earlier evidence to Constable Budin, whereby he admitted Mr Richardson was working for him, which was retracted in the subsequent answer. There was no dispute that Mr Richardson was at Mr Fabiano’s property washing trucks on the day he was injured. By Mr Fabiano telling Mr Richardson to clean the small truck and not to touch the big truck, Mr Fabiano was exercising control over Mr Richardson.
The Arbitrator proceeded to note the submissions made by the respondent that there was no credible evidence to support a finding that the deceased was employed by the respondent. There were inconsistencies in the evidence, particularly the evidence of Mrs Richardson. The relationship between Mr Fabiano and Mr Richardson was simply “mates helping mates” and there was never an intention to create a legal relationship.
The Arbitrator further noted the respondent’s submission that telling Mr Richardson not to touch the big truck was a prohibition, not a direction and the evidence was that Mr Fabiano never approached Mr Richardson, the approach was always made by Mr Richardson to Mr Fabiano. Their relationship was in contrast to their previous relationship which was a more formal arrangement and properly invoiced, and this measured against a finding of an employment relationship. Being on a government pension and volunteering as a courtesy bus driver were both inconsistent with an employment relationship existing between Mr Richardson and the respondent.

In relation to the “deemed worker issue”, the Arbitrator referred to the respondent’s submission that payment of money to Joshua by Mr Richardson would not constitute “pocket money” because Joshua was working and had independent income. That meant that Mr Richardson paid Joshua for work that he did which took Mr Richardson outside of the “deemed worker” provisions.
The Arbitrator reiterated that her task was to make an objective assessment of the evidence as to what was said and done and the circumstances in which those things were said and done. She described the relationship between Mr Fabiano and Mr Richardson as friends and that Mr Fabiano was aware that Mr Richardson was experiencing financial difficulties. The Arbitrator said this was consistent with Mr Fabiano allowing Mr Richardson “to ‘help out’ by washing trucks for a small cash payment or payment in kind”.[31] The Arbitrator commented that it was what was expected of friends helping each other out in times of need.
[31] Reasons, [79].
The Arbitrator also reasoned that the informality of the arrangement indicated it was not likely to have been intended to be a contractual arrangement. It was inconsistent with the conduct of the parties in the earlier arrangement when Mr Richardson contracted to Mr Fabiano to perform truck driving. The Arbitrator formed the view that had it been intended to be a formal arrangement, she would have expected Mr Richardson to adopt the same course of submitting invoices in his business name. She said it would be more likely that an arrangement as described by Mrs Richardson of being paid $50 per truck would also be more consistent with a formal arrangement to issue invoices for payment.
The Arbitrator referred to Mrs Richardson’s more contemporaneous statement to Constable Budin that she and Mr Richardson were only washing trucks as a means to pick up some extra cash after Mr Richardson’s stroke. She was of the view that this evidence was inconsistent with Mrs Richardson’s later evidence that suggests a more formal arrangement.
Further, Mr Fabiano’s statement and interview with Constable Budin were more contemporaneous. Mr Fabiano was quick to point out to Constable Budin the nature of the arrangement. He also expressed that he had anticipated that Mr Richardson would come to work with him when he was medically cleared.
The Arbitrator considered that Mr Richardson’s medical condition had impacted him to the extent that he was in receipt of social security benefits and this suggested to her that the extra money from washing trucks was consistent with “mates helping mates”. Coupled with the evidence as to the money earned as a courtesy bus driver, if Mr Richardson was washing trucks to the extent alleged by Mrs Richardson, it may have had an impact on receipt of those social security benefits.
The Arbitrator said she was required to balance all of the comments made by everyone involved, but not to analyse that evidence in minute detail to point out the discrepancies. The Arbitrator concluded:
“In short, an objective assessment of the evidence about the state of affairs between the parties leads me to conclude that there was no intention to create legal relations, nor that the relationship was one of employment of any kind, either ‘worker’ or ‘deemed worker’. The latter in any event would in my view be invalidated by the nature of the claimed relationship between the deceased and his son Joshua.”[32]
[32] Reasons, [90].
The Certificate of Determination issued on 23 February 2018 records:
“1. Award for the respondent.”

GROUNDS OF APPEAL

The appellants allege five grounds of appeal, expressed as follows:
(a)    Ground 1: The Arbitrator erred in her analysis of the factual evidence in determining that Mr Richardson was not a worker for the purposes of the 1987 (sic,1998) Act.
(b)    Ground 2: The Arbitrator erred in her analysis of the factual evidence in determining that Mr Fabiano and Mr Richardson had no intention to create legal relations.
(c)    Ground 3: The Arbitrator erred in ascribing any weight to Mr Fabiano’s evidence in respect of an intention to create legal relations.
(d)    Ground 4: The Arbitrator erred in her formulation of the law as to the appropriate definition of a ‘worker’ for the purposes of the 1987 (sic,1998) Act.
(e)    Ground 5: The Arbitrator erred in her analysis of the factual evidence “to the indicia required to be considered as to the appropriate definition of a ‘worker’”[33] for the purposes of the 1987 (sic, 1998) Act.

LEGISLATION

[33] Amended Appeal, Part B; 2.8 [5].

Section 4 of the 1998 Act defines “worker” as (exceptions omitted):
“‘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).”
Sub-clause 1 of cl 2 of Sch1 of the 1998 Act provides:
“2 Other contractors
(cf former Sch 1 cl 2)
(1) Where a contract:
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
(b) [Repealed]
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”

SUBMISSIONS

The appellants’ submissions

Unhelpfully, the appellants’ submissions are presented in a general fashion and are not identified as being relevant to any particular ground of appeal. I shall record the submissions as they have been presented.
The appellants submit the Arbitrator fell into error in her determination that Mr Richardson was not a “worker for the purposes of the Workers Compensation Act 1987”.[34] The error is said to be that the Arbitrator erred in her analysis and application of the law.
[34] Appellants’ submissions, 2.9 [1].
The appellants refer to the Arbitrator’s reasons wherein she noted Mr Richardson’s financial concerns, and Mr Fabiano’s awareness of those difficulties. Further, the appellants referred to the Arbitrator noting that the parties were friends and that it was consistent with that relationship that Mr Fabiano would allow Mr Richardson to help out by washing trucks for either payment of cash or in kind. Such an arrangement would have been expected of good friends and if classified as an employment relationship, may have jeopardised the social security payments Mr Richardson was receiving.[35]
[35] Reasons, [78]–[80], [88].
The appellants submit that there are two fundamental errors in that reasoning.
The first is that the fact that Mr Richardson and Mr Fabiano were friends does not exclude an intention to create legal relations. Secondly, it could not be inferred that an entitlement to social security is an indicium against being a worker. The appellants assert that it is well known that a person can supplement such a benefit with employment income.
The appellants say that the thrust of the Arbitrator’s reasoning was that the relationship between Mr Fabiano and Mr Richardson was one of “mates helping mates” and on that basis, there was no intention to create legal relations. The appellants contend that the Arbitrator presupposed that it was unlikely there was the requisite intention because the parties were friends.
The appellants rely on the High Court decision in Ermogenous v Greek Orthodox Community of SA Inc,[36] in which the High Court cautioned against the use of the language of presumptions to negate the intention to create a legal relationship. The appellants further refer to Ashton v Pratt,[37] in which the New South Wales Court of Appeal followed Ermogenous in circumstances where the relationship between the parties was of a social nature. The appellants acknowledge that the appeal in Ashton was unsuccessful for other reasons.
[36] [2002] HCA 8; 209 CLR 95 (Ermogenous).
[37] [2015] NSWCA 12 (Ashton).
The appellants submit that Ermogenous and Ashton demonstrate that there is no presumption that the parties did not have an intention to create a legal relationship in circumstances where the parties were friends. The appellants say that just because a mate might be reluctant to proceed to litigate, it does not mean that he was unable to.
Further, the appellants submit that Mr Fabiano is a separate entity to the respondent and the benefit of Mr Richardson washing the trucks passes to the respondent, not his friend, Mr Fabiano. There cannot be a friendship between a corporation and a natural person, so the Arbitrator erred in “assuming that Mr Fabian[o] is the respondent”.[38]
[38] Appellants’ submissions, 2.9 [10].
The appellants contend that the fact that Mr Richardson was in receipt of social security benefits cannot be informative in any meaningful way as to whether the respondent and Mr Richardson intended to create a legal relationship between them. Whether there would be an effect on Mr Richardson’s social security benefit is not a relevant factor in the determination of an intention to create a legal relationship.
In any event, the parties were of the view that Mr Richardson would be returning to greater employment duties once he received a medical clearance. Even if the payments received for washing trucks jeopardised the social security payments, it was clear that Mr Richardson did not envisage being on such benefits in perpetuity, and so that was an irrelevant consideration.
The appellants submit that if “the presumption of ‘mates helping mates’”[39] and the effect of the arrangement on Mr Richardson’s social security are factors taken out of the equation, the evidence overwhelmingly supports the notion of an employment relationship.
[39] Appellants’ submissions, 2.9 [14].
The appellants acknowledge that there are inconsistencies in the evidence but list the following facts as uncontentious:
(a)    Mr Richardson would enquire as to whether there were trucks to wash;
(b)    Mr Richardson would “regularly” wash the respondent’s vehicles using the respondent’s equipment;
(c)    consideration would pass from the respondent to Mr Richardson (said to be a cash payment);
(d)    the respondent exercised control and direction by indicating which trucks to wash (and allegedly which vehicles should not be touched);
(e)    the parties intended that Mr Richardson’s duties would increase once he received a medical clearance, and
(f)    Mr Fabiano admitted to Constable Budin that Mr Richardson was working at his property.
The appellants submit that all of the above indicia are sufficient to establish an intention to create a legal relationship and support the conclusion that Mr Richardson was a worker within the meaning of the 1998 Act. They submit that the arrangement between Mr Richardson and the respondent that was in place prior to Mr Richardson’s health issue was a sub-contract arrangement and not one of employment, so that it was in contrast to the arrangement to wash trucks.
The appellants seek an order revoking the COD dated 23 February 2018 and ask for the following orders:
(a)    Mr Anthony Paul Richardson was a worker (or a deemed worker) for the purposes of the 1987 Act;
(b)    an award for the [appellants] for the death benefit payable pursuant to s 25 of the 1987 Act, and
(c)    the matter be referred to a different Arbitrator to determine the apportionment of the death benefit payable pursuant to s 29 of the 1987 Act.

The respondent’s submissions

The respondent disputes that the Arbitrator erred in respect of each of the five grounds of appeal.
In order to respond to the submissions on appeal, the respondent follows the same format as the appellants’ submissions.
The respondent submits that the paragraphs extracted from the Arbitrator’s reasons and relied on by the appellants form only part of the Arbitrator’s overall analysis, reasons and conclusions in respect of the “worker” issue. It contends that the Arbitrator has raised other matters as relevant, and those matters have not been addressed by the appellants.
The respondent says that the appellants’ interpretation of the Arbitrator’s reasoning is not necessarily correct. It submits that the Arbitrator’s conclusion that the relationship was one of “mates helping mates” and therefore not having the necessary intention to create a legal relationship followed a detailed analysis of the available evidence, a consideration of the legal framework and a summation of the submissions made.
The respondent noted the Arbitrator correctly took into account that the parties were unsophisticated people who were genuinely attempting to set out their understanding of the relationship.[40]
[40] Reasons, [42].
The respondent referred to the Arbitrator’s conclusions where the Arbitrator stated she had:
“… carefully considered all of the evidence, weighing the inconsistencies …
It is easy to get mired in the minutiae of the many inconsistencies, but viewed objectively, I am not persuaded that the deceased and Mr Fabiano (and the respondent company) intended the arrangement between them to create legally enforceable contractual relations.”[41]
[41] Reasons, [76]-[77]/
The respondent submits that the above reasons are relevant as to why the Arbitrator’s conclusions should be upheld. The respondent refers to the decision in Vacik Distributors v Kelly[42] where Clarke JA (Kirby A-CJ (as he then was) and Cole JA agreeing) said:
“it is readily apparent that in informal arrangements … the question of whether a person is a servant or not can be very much a matter of impression.”[43]
[42] (1995) 12 NSWCCR 30 (Kelly).
[43] Kelly, p 34, [F]–[G].
The respondent contends that the Arbitrator’s conclusions need to be considered in light of all the Arbitrator’s reasoning, not just the few select paragraphs identified by the appellants. It submits that the notion of “mates helping out mates” was only one factor in the overall impression gained by the Arbitrator in determining whether there was a contract for service. The respondent submits there is no clear evidence that the Arbitrator’s approach and analysis in respect of whether there was an intention to create a legal relationship has led to an error of fact, law or discretion.
The respondent further submits that the principles referred to in Ermogenous and Ashton are not inconsistent with the Arbitrator’s approach. Nowhere in the Arbitrator’s decision did she indicate that the notion of “mates helping mates” was itself determinative of her ultimate conclusion.
In relation to the submission recorded at [127] above, the respondent says that Mr Fabiano was a director of the respondent, and that he was acting in his capacity as a director of the company. The benefit of having the trucks washed would ultimately pass to him. It says the submission that the company is distinct from Mr Fabiano is irrelevant. The respondent submits that it was valid for the Arbitrator to consider the relationship between Mr Fabiano and Mr Richardson.
The respondent contends that the receipt of social security benefits was also just one factor and not of itself determinative of the Arbitrator’s ultimate conclusion. It submits that the appellants have not given any clear reason as to why it was not a relevant factor to consider.
The respondent further contends that the potential future employment was not necessarily relevant to an analysis of the arrangement at the time of the incident. The respondent says that if it was relevant that there was to be a future employment relationship, then a more formal arrangement ought to have been in place at the time of the incident.
The respondent submits that the notion of “mates helping mates” and the receipt of social security benefits are not matters that ought to be “removed from the equation”.[44] It submits that they are some of the factors that remain relevant in the overall picture.
[44] Respondent’s submissions, [19].
The respondent disputes that the evidence “overwhelmingly supports” the notion of an intention to create a legal relationship and that there was an employment relationship. It responds to the matters that the appellants maintain are uncontentious (listed at [131] above) as follows:
(a)    it is not relevant or determinative that Mr Richardson would enquire about whether there were trucks to wash;
(b)    the regularity of washing the trucks is not clear and is an example of the inconsistencies in the case;
(c)    it is not disputed that on occasions, Mr Fabiano would give Mr Richardson (or Mr Richardson and his family) money at the time of or after washing the vehicles. It is not conceded, however that that those payments took the form of “consideration” for work done or that the evidence un-contentiously supports a regular or significant payment of cash;
(d)    Mr Richardson was not under the respondent’s direction or control. The respondent submits that (as it argued at arbitration), the identification of a job is not necessarily control. It submits there is not a scintilla of evidence as to any detailed instruction, only a “prohibition” not to touch a particular truck;
(e)    The assertion that there was to be an increase in Mr Richardson’s duties was not an accurate reflection of the evidence. There was no guarantee Mr Richardson would be given a medical clearance. Further, the thrust of Mr Fabiano’s evidence was that there was a future intention that was not in existence at the time of the incident on 14 December 2014. The nature of the duties envisaged was truck driving, rather than washing tucks, which was a completely different arrangement to that which was asserted to have existed at the time of the incident, and
(f)    Mr Fabiano’s “admission” to Constable Budin that Mr Richardson was working was adequately dealt with by the Arbitrator in her reasons that “there are so many inconsistencies that I would not accept that any alleged ‘admission’ by Mr Fabiano that he employed the deceased was indeed that, because he repeatedly said that there was no such arrangement.”[45]
[45] Citing Reasons, [66].
The respondent re-iterates that the assertions made (listed at [131] above) are contentious and when looked at as a whole do not support the conclusion asserted.
The respondent contends that the fact that the parties did enter into a formal arrangement in the past and could have made the truck washing arrangement more formal but chose not to, is indicative that there was no intention to create a legal relationship. Further, the election not to re-make a formal arrangement supported the Arbitrator’s conclusions.
The respondent contends that the appellants have made out no error of fact, law or discretion. Further, the appellants’ submissions do not adequately deal with the grounds of appeal, particularly grounds 3, 4 and 5. In addition, the submissions make no assertion of an error in the manner in which the Arbitrator set out the “legal framework”.
The respondent also submits that the appellants have made no challenge to the Arbitrator’s determination that Mr Richardson was not a deemed worker within the meaning of subcl 1 of cl 2 of Sch 1. The respondent relies on its submissions at arbitration, summarised by the Arbitrator.[46] It submits that the Arbitrator accepted those submissions.[47]
[46] Citing Reasons, [70].
[47] Citing Reasons, [90].
The respondent also seeks to otherwise rely on its submissions at arbitration, where relevant.

DISCUSSION

The appellants’ grounds of appeal are, limited to:
(a) alleged error in determining Mr Richardson was not a worker (grounds 1, 4 and 5), and
(b) alleged error in determining there was no intention to create a legal relationship.
As identified by the respondent, the appellants’ grounds of appeal and submissions raise no contention that the Arbitrator has erred in her determination that Mr Richardson was not a deemed worker within the meaning of subcl 1 of cl 2 of Sch 1 of the 1998 Act. The appellants had the opportunity to reply to the respondent’s submission to that effect, but did not avail themselves of the opportunity. In the circumstances, the alternative relief sought by the appellants that Mr Richardson was a “deemed worker” cannot be the subject of consideration in this appeal.

The issues raised by the respondent required the Arbitrator to firstly determine whether the arrangement between Mr Fabiano and Mr Richardson constituted a contract. An intention to create a legal relationship is an essential element of any contract, including an employment contract. If Mr Richardson was able to satisfy the Arbitrator, on the balance of probabilities, that the arrangement was intended to be a contractually binding agreement, then it was incumbent upon the Arbitrator to determine whether the contract was of a character to be considered a “contract of service”. If it was found to be a contract of service, then Mr Richardson would satisfy the definition of “worker” in s 4 of the 1998 Act. If the arrangement was found to be lacking the necessary intention, then it would be unnecessary to consider the indicia pointing to, or reach a conclusion with respect to, a contract of service.
The Arbitrator reviewed all of the factual evidence before her and summarised the parties’ submissions. She correctly observed that her task was:
“to make an objective assessment of the state of affairs between the parties, looking at all that was said and done, and having regard to the circumstances in which any statements and actions happened.”[48]
[48] Reasons, [75].
The Arbitrator’s approach was consistent with the High Court decision in Ermogenous in which it was held that whether the parties intended to create legal relations required an objective assessment of the state of affairs between them.[49] The Arbitrator concluded that on an objective view of the evidence, she was not satisfied that Mr Fabiano and Mr Richardson intended that the arrangement between them was to be a legally enforceable contractual agreement.
[49] Ermogenous, [25].
The appellants allege the Arbitrator erred in arriving at that conclusion by her analysis of the factual evidence and in affording weight to the evidence of Mr Fabiano (Grounds 2 and 3). The Arbitrator’s decision rests on her conclusion that she was not satisfied there was an intention to create legal relations, so there was no contract. It is therefore convenient to deal with Grounds 2 and 3 first, before proceeding to consider the remaining three grounds.

Ground 2: The Arbitrator erred in her analysis of the factual evidence in determining that Mr Fabiano and Mr Richardson had no intention to create legal relations

The Arbitrator’s finding is a finding of fact. A finding of fact will not normally be disturbed on appeal if it has rational support in the evidence.[50]
[50] Fox v Percy [2003] HCA 22; 214 CLR 118, 125-6.
The Arbitrator preferred the more contemporaneous statements made in 2015 to the later statements, made for the purpose of litigation, in 2017. Such a preference was open to her in the context of the significant inconsistencies between the earlier and later statements of Mrs Richardson and the inconsistent statements of the various other witnesses. The appellants acknowledged those inconsistencies.
Questions of the acceptance of evidence and the weight evidence is given are matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[51]
[51] Shellharbour City Council v Rigby [2006] NSWCA 308 (Rigby), [144].
The appellants’ submissions do not assist in the identification of any credible evidence that ought to have been accepted over that which was accepted. The appellants submit that Mr Fabiano made an alleged “admission” in his interview with Constable Budin. The “admission” that Mr Richardson worked for Mr Fabiano is dealt with in my consideration of Ground 3 of the amended Appeal.
The appellants allege that the Arbitrator “presupposed” that because Mr Fabiano and Mr Richardson were friends, it was unlikely that they would have intended to create a contractual relationship. They rely on Ermogenous and Ashton as authorities for the proposition that “the fact of friendship does not create a presumption that there was no intention to create legal relations”.[52]
[52] Appellants’ submissions, [8].
To consider that submission, it is convenient to reproduce the relevant paragraphs of the decision in Ermogenous as follows (footnotes omitted):
“‘It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.’ To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet ‘[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts.’
Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the ‘intention to create contractual relations’ requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.
In this context of intention to create legal relations there is frequent reference to ‘presumptions’. It is said that it may be presumed that there are some ‘family arrangements’ which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition.”[53]
[53] Ermogenous, [24]-[26].
The appellants do not rely on any particular passage from Ashton, but submit that the New South Wales Court of Appeal in Ashton adopted the same approach as in Ermogenous in circumstances where the two parties had a social, rather than familial, relationship.
Ermogenous is not authority for the proposition put forward by the appellants. A proper construction is that expressed in Ashton, where Bathurst CJ said:
“Notwithstanding what was said by this Court in Sion, in my opinion the effect of the decision of the High Court in Ermogenous was that in considering the issue recourse should not be had to any presumption concerning the contractual or non-contractual effects of family arrangements. That does not mean that the relationship of the parties and the circumstances in which the arrangement was entered into are irrelevant to the question. To the contrary, these factors form part of the surrounding circumstances from which it will be determined whether or not a contract came into existence.”[54]
[54] Ashton, [73].
The difficulty with the appellants’ submission is that the Arbitrator did not presume that because the parties were friends, an intention to be contractually bound was excluded. As the respondent submits, the extracts from the Arbitrator’s reasons at [78]–[80] and [88] (summarised at [124] above) are only a part of the Arbitrator’s reasoning process that led her to the overall impression that she gained from an objective assessment of all the evidence.
The Arbitrator was entitled to consider the friendship between Mr Richardson and Mr Fabiano as a factor that formed part of the surrounding circumstances in determining whether there existed an intention to enter legal relations. Their relationship to one another was a relevant factor.
The receipt of social security benefits was only one factor that the Arbitrator took into account in arriving at her overall impression that there was an absence of the necessary intention.
The observations of Bathurst CJ in Ashton at [73] (quoted at [166] above) impose an obligation on the Arbitrator to consider the circumstances that surrounded the reasons for the institution and performance of the arrangement. Those circumstances included that Mr Richardson was essentially living on social security sickness benefits. A proper construction of the Arbitrator’s reasons is that it was likely Mr Richardson would not intend to jeopardise what was at that time an important source of income. Flowing from that likelihood, it was open to the Arbitrator to infer that Mr Richardson would be less likely to enter into a formal employment relationship that might bring about that jeopardy.
It must be borne in mind that the Arbitrator had no direct evidence from Mr Richardson. The Arbitrator had to do the best she could from the inconsistent evidence from witnesses who were not parties to the conversations and actions that took place between Mr Richardson and Mr Fabiano on every occasion.
The friendship between Mr Fabiano and Mr Richardson and the receipt by Mr Richardson of social security benefits were factors that mitigated against an intention to enter into a legal relationship. The Arbitrator also took into account the way in which the arrangement came into existence, the parties’ previous sub-contract arrangement, Mr Richardson’s loss of his driver’s licence and his financial concerns. These were relevant factors to consider in the context of the task before her, which was to gain an impression as to what was the intention of the parties in such an informal arrangement. Her analysis of the factual evidence was an objective appraisal of all that was said and done, having regard to the circumstances in which those statements and actions occurred. That approach was consistent with Ermogenous, Ashton and the Court of Appeal decision in Kelly, relied on by the respondent.
The Arbitrator’s factual finding was open to her and accords with the authorities discussed above.
The appellants’ rather simplistic submission that the Arbitrator erred in assuming that Mr Fabiano was the respondent and that there could be no friendship between Mr Richardson and a corporation (the actual respondent) is somewhat a double-edged sword. The evidence is that any payment (whether of money or kind) to Mr Richardson was made by Mr Fabiano and all conversations were between the two men. Mr Fabiano, as director of the respondent, was an intrinsic part of the arrangement. To assert that the arrangement was made with the respondent (the company) and the friendship between Mr Fabiano and Mr Richardson played no part in the arrangement is factually incorrect. On the available evidence, the friendship between the two men was the motivation for the arrangement, which was intended by Mr Fabiano to help out a friend in need.
The appellants suggest that the indicia set out in Stevens v Brodribb are also relevant to a consideration of whether an intention to create legal relations existed.
The appellants submit that there are six uncontentious facts that point to an intention to create legal relations and that Mr Richardson was a “worker” within the meaning of the 1998 Act. I have detailed those factual assertions at [131] above. The respondent disputes that the facts are uncontentious.
While the evidence establishes that Mr Richardson would enquire whether there were trucks to wash and would wash trucks for Mr Fabiano, the balance of the evidence is far from uncontested.
The appellants’ submission that Mr Richardson washed the trucks “regularly” was challenged by the respondent’s evidence. Mr Fabiano’s evidence was that it occurred on only about six occasions and that Mr Richardson would at times elect not to attend to wash the trucks. Mrs Richardson’s statement that they washed up to five trucks on any one day is contrary to Mr Fabiano’s evidence that he owned only four trucks and only three trucks were kept on his property.
That evidence appears to cast doubt on the regularity and extent of any obligation to wash the trucks.
The evidence of the extent and kind of “consideration” that passed is equivocal. Mrs Richardson told Constable Budin that she and Mr Richardson were paid $50 per truck. In her statement made in 2017, Mrs Richardson said that she never saw Mr Fabiano give Mr Richardson money for lunch. She did not dispute Mr Fabiano’s evidence that at times he would give her and Mr Richardson lunch, or give Mr Richardson a box of fruit, or that he once gave Mr Richardson tyre rims. The son Joshua stated that his father paid him half of what they “earned”. Mr Fabiano’s evidence as to payment of money was at odds with Mrs Richardson’s allegation that there was payment of a fixed sum. In its totality, the evidence is vague as to what “consideration” actually passed to Mr Richardson and the extent of Mr Fabiano’s obligation with respect to the arrangement.
The appellant asserts that the respondent exercised a degree of control and direction over Mr Richardson by indicating which trucks to wash. On the evidence, that is the only control or direction Mr Fabiano exercised. Regardless of the relationship between Mr Fabiano and Mr Richardson, Mr Fabiano was entitled to have an interest in what was to be done. The extent of that control or direction is not of a kind that would work to distinguish the arrangement and make it an employment relationship.[55] Nor would it contribute to characterise the arrangement as a binding legal agreement.
[55] Ewart v Caruso [2013] WASCA 266, [33].
The appellants contend that the parties had agreed that Mr Richardson’s “duties would increase” after he was medically cleared. There had been discussions between the two men and it is apparent some agreement was reached that Mr Richardson would provide truck driving services to the respondent in the future. No firm agreement was reached as to when that would occur, or how that arrangement would be structured. Given the past sub-contract work Mr Richardson provided to the respondent, it was at least as equally as probable that the future arrangement would also be a contract for services, rather than a contract of service. In my view, evidence of that future intention does not import any element of intention into the arrangement on foot at the time of Mr Richardson’s accident.
The sixth alleged uncontentious fact is that Mr Fabiano made an “admission” to Constable Budin that Mr Richardson worked for him. I have dealt with and rejected that allegation under Ground 3 below.
I am not satisfied that the appellant has established the Arbitrator erred as alleged under Ground 2 and the ground of appeal fails.

Ground 3: The Arbitrator erred in ascribing any weight to Mr Fabiano’s evidence in respect of an intention to create legal relations

The appellants make no submission to support this allegation other than to say that Mr Fabiano “admitted” in his interview to police that Mr Richardson was working on the premises.[56]
[56] Appellants’ submissions, [14(f)].
The relevant part of the transcript of interview is as follows:
“Q 185 OK. So Richard was, Anthony was working there.
A Yep.
Q 186 Was he working for you or was he just, just doing you a favour?
A No, he was just helping me out because he was gunna, he was gunna, well, I was hoping he was gunna work for me, you know, and I was just showing him what to do and, in the trucks and that …”
The Arbitrator dealt with this evidence by saying:
“Mr Fabiano’s statement and the interviews with Constable Budin are the most contemporaneous. Whilst I accept that, on the face of it, Mr Fabiano did appear to say that the deceased worked for him, I also note that he was quick to point out the nature of the arrangement and to add that he anticipated that the deceased may in fact come to work for him once he was ‘medically cleared.’”[57]
[57] Reasons, [86].
The evidence could not constitute an admission that Mr Fabiano intended the arrangement to be a legally binding employment relationship. To say that someone is “working” can denote a multitude of activities, including working for oneself, working as a farmer, and working voluntarily. It was clear that Mr Richardson was washing trucks when the incident occurred. That activity could easily be described as “working” without the description indicating the agreement satisfied the concept of a contract of service for the purpose of s 4 of the 1998 Act.
A conclusion that someone is a “worker” requires an evaluation of the real substance of the relationship in question and not the label attached by one or other of the parties.[58] This is particularly so in respect of the language chosen by an unsophisticated witness such as Mr Fabiano. The words used must also be considered in the context of Mr Fabiano’s explanation that followed in his next answer to Constable Budin.
[58] On Call Interpreters and Translators Agency Pty LtdvCommissioner of Taxation (No 3) [2011] FCA 366, [189].
The appellants submit that Mr Fabiano’s evidence should accordingly be given no weight. I do not accept that Mr Fabiano made any admission that would advance the appellants’ case. There is no reason to disregard the evidence of Mr Fabiano or give it any less weight. It cannot be considered that the Arbitrator’s finding, which was in part based on Mr Fabiano’s evidence, was so against the weight of the evidence that some error must have been involved.[59]
[59] Rigby, [144].
It follows that Ground 3 of the amended Appeal grounds fails.

Grounds 1, 4 and 5

The remaining three grounds of appeal allege error on the part of the Arbitrator in respect of her determination that Mr Richards was not a worker as defined by s 4 of the 1998 Act.
Under Ground 4, the appellants allege the Arbitrator “erred in her formulation of the law as to the appropriate definition of a ‘worker’ for the purposes of the 1987 [sic,1998] Act”. The appellants make this assertion without any reference to the part of her reasoning process that might constitute the alleged error and no submission that explains why it is that the Arbitrator erred in law. In the absence of submissions, a mere assertion that the Arbitrator has erred in the manner alleged cannot succeed.
In any event, the difficulty facing the appellants is that the Arbitrator determined the dispute on the basis that there was no intention to create a legal relationship and so a contract had not been established. In the absence of a contract (whether a contract for services or a contract of service) there was no need for the Arbitrator to consider the nature of the purported contract or apply the indicia in Stevens v Brodribb. The Arbitrator determined Mr Richardson was not a worker because there was no intention to enter into a contract of service, not because of the application (or misapplication) of the indicia in Stevens v Brodribb.
The Arbitrator correctly formulated the law as to the definition of “worker”. She referred to and considered the definition of “worker” within s 4 of the 1998 Act. She observed that it was essential to that definition that a contract of service existed. She referred to the High Court decision in Stevens v Brodribb. She further referred to the relevant indicia set out in that decision that should be considered in determining whether an employment relationship exists. She observed that it was the “totality of the relationship that [she] must consider”.[60]
[60] Reasons, [38].

The Arbitrator also analysed cl 2 of Sch 1 of the 1998 Act and identified the criteria that must be established to satisfy that clause.
Whatever is meant by “erred in her formulation of the law as to the appropriate definition of worker”, the appellants have not identified where or how it is that the Arbitrator misapplied the law. In the absence of submissions on point, Ground 4 fails.
Grounds 1 and 5 are essentially the same ground, that is, that the Arbitrator erred in her analysis of the factual evidence. Ground 1 asserts generally that the Arbitrator erred in her analysis of the factual evidence in determining Mr Richardson was not a worker. Ground 5 is poorly expressed but appears to allege the Arbitrator specifically erred by either not applying or misapplying the indicia set out in Stevens v Brodribb.
As I have indicated above, the Arbitrator’s decision turned on whether there was a legally binding contract. It was not incumbent upon the Arbitrator to consider whether the factual evidence was sufficient to establish a contract of service. Nor was it incumbent on her to apply the indicia in Stevens v Brodribb. Such indicia are intended to identify whether a contract was in the nature of an employment contract or more akin to that of an independent contractor.
The appellants have failed to in identify any error of fact, or any error of law in the Arbitrator’s determination that Mr Richardson was not a “worker” as defined. Grounds 1 and 5 of the amended Appeal fail.

Conclusion

The grounds of appeal raised and the submissions made by the appellants do not identify any error on the part of the Arbitrator, either in fact or law, in her determination that there was no intention to create a legal relationship and Mr Richardson was therefore not a “worker’ as defined. As none of the amended Appeal grounds have succeeded, I confirm the Certificate of Determination issued 23 February 2018.

DECISION

The Arbitrator’s Certificate of determination dated 23 February 2018 is confirmed.

Elizabeth Wood

Deputy President

12 July 2018