Scott v Jr Corney and SM Morrisey t/as Digquip

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Scott v JR Corney and SM Morrisey t/as Digquip [2016] NSWWCCPD 11
APPELLANT:	Clive Lloyd Scott
FIRST RESPONDENT:	JR Corney and SM Morrisey t/as Digquip
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
THIRD RESPONDENT:	Metric Minerals Pty Ltd
THIRD RESPONDENT’S INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-5374/14
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	3 August 2015
DATE OF APPEAL HEARING:	22 December 2015 and 5 February 2016
DATE OF APPEAL DECISION:	17 February 2016
SUBJECT MATTER OF DECISION:	Worker; application of indicia; control; matters not argued at arbitration; leave to argue new matters on appeal; appellant bound by conduct of counsel at arbitration; application of principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481; principles in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; 279 ALR 341 discussed; application for leave to cross-examine; exercise of discretion in refusing leave to cross-examine; not accepting evidence of claimant in circumstances where leave to cross-examine first respondent refused; non-compliance with Practice Direction No 6
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr S Hickey, instructed by Penny Waters Armstrong Legal
First Respondent:	Mr C Tanner, instructed by R J O’Halloran & Co
Second Respondent:	Mr D A Baker, instructed by Sparke Helmore
Third Respondent:	No appearance
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 3 August 2015 is confirmed.

INTRODUCTION

The term “worker” is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as “a person who has entered into or works under a contract of service … with an employer”. The issue in this appeal is whether the claimant was a “worker”, or, as the Arbitrator found, an independent contractor. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

In 2010, the claimant, Clive Scott, worked in his own business as a diesel mechanic and welder at Ashford, about a one-hour drive from Inverell in north-western NSW. In or about August 2010, John Corney, one of the proprietors of Digquip, the first respondent, engaged Mr Scott to work for the first respondent for a couple of days a week as an independent contractor.
Mr Scott’s case was and is that in late 2011, the nature of his working relationship with Mr Corney changed from being one of a contractor to that of a full-time employee. He asserted that, from that time, he worked exclusively for the first respondent, either at its premises or, depending on the activity, away from those premises, that he worked regular hours for the first respondent, and that Mr Corney supervised and controlled his work.
In 2010, the first respondent was in the business of selling earthmoving and agricultural equipment in Inverell. In late 2010 or early 2011, the first respondent became the Mahindra Tractor dealer for Inverell. On 22 July 2013, Mr Corney had undertaken to prepare a dump truck to be transported from Glen Innes Council quarry to Elsmore. On that day, Mr Scott injured his back while assisting Mr Corney to replace two large batteries in the dump truck at the Glen Innes Council quarry.
The first respondent’s case was and is that at all times Mr Scott was engaged by it as a contractor and that Mr Scott conducted his own business as a specialist diesel mechanic and welder.
The third respondent, Metric Minerals Pty Ltd (Metric Minerals), owned the dump truck on which Mr Scott and Mr Corney were working when Mr Scott injured his back. That company is a party to the proceedings because, in the event that Mr Scott is found to be a worker employed by the first respondent, it will be alleged that that company may be liable as a principal under s 20 of the Workers Compensation Act 1987 (the 1987 Act).
The second respondent, the Workers Compensation Nominal Insurer, is a party to the proceedings because, as at 22 July 2013, the first respondent did not carry workers’ compensation insurance.
The Arbitrator found that Mr Scott was not a worker and made an award in favour of the three respondents. In summary, his reasons were that the “control” indicium of employment favoured a finding that Mr Scott was not a worker employed by Mr Corney. This was on the basis that, within the broad directions given by Mr Corney to Mr Scott in respect of jobs to be done, and the manner in which they were to be carried out, Mr Scott “exercised a degree of independence and retained a large discretion in the way he performed the work” ([116]).
The other indicia relied on by the Arbitrator (at [117]), which he said pointed to Mr Scott not being a worker, included:
(a)     the mode of remuneration and the way in which the rate at which Mr Scott was paid by Mr Corney was negotiated, initially an hourly rate of $40 (plus GST), with a subsequent increase to $50 (plus GST) at Mr Scott’s request;
(b)     the non-deduction of income tax by Mr Corney from amounts paid by him to Mr Scott;
(c)     the fact that Mr Scott paid from the remuneration received from Mr Corney, and other clients, significant business expenses;
(d)     the non-provision by Mr Corney of holiday pay, sick leave and superannuation;
(e)     the hours of work and the fact that Mr Scott only charged for, and was paid for, the hours actually worked. The weekly hours worked averaged about 28, but varied and usually did not include Friday work;
(f)      the fact that Mr Scott continued to obtain work from clients other than Mr Corney throughout the time he was engaged by Mr Corney;
(g)     the fact that Mr Scott at all times maintained loss of income insurance, and
(h)     the provision of equipment by Mr Scott.
Balancing the indicia and, in particular, having regard to the lack of control exerted by Mr Corney over Mr Scott, the Arbitrator concluded that Mr Corney engaged Mr Scott pursuant to a contract for services and not a contract of service. That is, that the relationship was one of independent contractor and principal and not one of employee and employer. Consistent with the Arbitrator’s finding that Mr Scott engaged in his own business as a contract diesel mechanic, he also found that Mr Scott was not a deemed worker under cl 2 of Sch 1 to the 1998 Act.
Consistent with this finding, the Commission issued a Certificate of Determination on 3 August 2015 in the following terms:
“1.     As at 22 July 2013 the applicant was neither:
(a)a worker employed by the first respondent pursuant to a contract of service;
(b)pursuant to clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998, taken to be a worker employed by the first respondent (that is a deemed worker of the first respondent); nor
(c)a worker employed by the third respondent pursuant to a contract of service.
2.     Award for the first respondent.
3.     Award for the second respondent.
4.     Award for the third respondent.”
Mr Scott has challenged the Arbitrator’s finding that he was not a worker, but has not challenged the finding that he was not a deemed worker.

ISSUES IN DISPUTE

The original appeal documents filed on behalf of Mr Scott did not comply with Practice Direction No 6. They did not properly identify the grounds of appeal or provide submissions in support of those grounds. That was most unsatisfactory. In a document headed “Amended Grounds of Appeal”, filed on 2 December 2015 pursuant to leave granted by me at a teleconference on 25 November 2015, the issues in dispute in the appeal were identified as whether the Arbitrator erred in:
(1)     not accepting Mr Scott’s evidence over the evidence of Mr Corney and in according weight to Mr Corney’s evidence on the obligation to work and whether time taken off by Mr Scott caused hostility from Mr Corney, in circumstances where Mr Scott was prevented from cross-examining Mr Corney (not accepting Mr Scott’s evidence/refusal to allow cross-examination);
(2)     stating the applicable test for determining the existence of a contract of service was so limited as not to include and properly apply the “focal point test” of whether Mr Scott was working in the business of Mr Corney or in Mr Scott’s own business (the applicable test);
(3)     considering as “neutral” the right in Mr Corney to have a particular person do the work and the right to suspend or dismiss when, balanced with the control test and the other indicia, and applying the focal point test, these matters supported a finding of worker (right to have a particular person do the work);
(4)     considering as “neutral” the right of Mr Corney to the exclusive services of Mr Scott when, balanced with the control test and the other indicia, and applying the focal point test, this matter supports a finding of worker (right to exclusive services of Mr Scott);
(5)     finding that the evidence on place of work and hours of work was consistent with a contract of services when, balanced with the control test and the other indicia, and applying the focal point test, these matters were supportive of a finding of worker (place of work and hours of work);
(6)     considering as consistent with a contract of services the sub-contracting out of some warranty work despite an earlier finding that Mr Corney was entitled to insist that the work be done by Mr Scott when, balanced with the control test and the other indicia, and applying the focal point test, the result supports a finding of worker (the sub-contracting of warranty work);
(7)     considering the mode of remuneration as consistent with a contract of services when, balanced with the control test and the other indicia, and applying the focal point test, the result supports a finding of worker (mode of remuneration);
(8)     considering the provision by Mr Scott of his own tools as consistent with a contract of services when, balanced with the control test and other indicia, and applying the focal point test, the result supports a finding of worker (provision of own tools);
(9)     determining that Mr Scott was not under the control and direction of Mr Corney on the day of the accident (control);
(10)     determining that Mr Scott was not under such a degree of control and direction by Mr Corney (for the contract) to be consistent with a contract of service (control);
(11)     finding that Mr Scott was not under such a degree of control of Mr Corney to support a finding of worker and in not applying the correct test as to the scope of control or right of control (control);
(12)     attributing too much weight to the fact that Mr Scott paid significant business expenses, continued to obtain work from clients other than Mr Corney and maintained loss of income insurance, as supporting the conclusion that Mr Scott was not a worker, when such factors were neutral in circumstances where it was conceded that Mr Scott conducted an independent business (business expenses, work from other clients and insurance);
(13)     not applying the following indicia, which are consistent with a contract of service:
(i)that Mr Scott was engaged in a specialised trade and supplied his tools is not inconsistent with a contract of service;
(ii)that Mr Scott was substantially at Mr Corney’s place of work and directed to each job and directed to other tasks, as a priority on occasions, before completing the task on which he was engaged;
(iii)there was no indication that any goodwill or saleable assets (accrued) in the course of Mr Scott working for Mr Corney;
(iv)Mr Corney had the right to Mr Scott’s services exclusively, when he was working for him, and the inference is strongly against (Mr Scott having) the ability to delegate or subcontract the work;
(v)Mr Corney found the work, took on the financial and entrepreneurial risk, and allocated it “job to job” over a long and regular weekly working relationship;
(vi)Mr Corney directed the manner of payment and at an hourly rate, which was the same no matter what the task;
(vii)the hours of work were consistent with an implied acceptance (by Mr Corney) that Mr Scott needed time in the afternoon to travel a distance home and to visit his terminally ill son;
(viii)Mr Corney shared tea breaks (with Mr Scott) at Mr Corney’s premises;
(ix)Mr Scott would tell Mr Corney if he was leaving the premises and going into town;
(x)Mr Scott was directed (by Mr Corney) and controlled as to what to do on the date of the accident and was transported to the worksite in Mr Corney’s vehicle and provided with Mr Corney’s equipment;
(xi)when work ran short, Mr Corney tried to find work to continue to engage Mr Scott;
(xii)Mr Scott was required to work regularly within the first respondent’s enterprise and at its direction;
(xiii)Mr Corney exercised a degree of direction and control at odds with a principal/contractor relationship;
(xiv)Mr Scott was specifically engaged on a long term basis for his expertise in the functions of Mr Corney’s work and was offered an amount above that requested (by Mr Scott) as an hourly rate to procure his services;
(xv)Mr Scott underwent a work trial and never quoted for work to Mr Corney on a “job lot basis”;
(xvi)the Arbitrator accepted that Mr Scott worked on occasions while being supervised by Mr Corney and rejected Mr Corney’s assertion that Mr Scott always worked alone and unsupervised;
(xvii)there was scope for Mr Corney to exercise control over Mr Scott;
(xviii)Mr Corney permitted Mr Scott to charge to accounts with suppliers for purchases made by Mr Scott on behalf of Mr Corney;
(xix)there is a strong inference that, due to Mr Scott’s expertise, he was not permitted to sub-contract the work performed for Mr Corney;
(xx)Mr Corney consistently reimbursed Mr Scott for supplies purchased, with no value adding by Mr Scott;
(xxi)Mr Corney agreed to a wage rise on request and to subsidise Mr Scott’s fuel costs due to travel from home to work and return being substantial, and
(xxii)inferentially, Mr Scott contracted out work (such as air conditioning and upholstery) with the authority of Mr Corney, which was “artisan work” and obviously not within his expertise and was permitted to do so as a term of his work contract to complete his tasks, similar to the right to purchase supplies and seek reimbursement or to charge up to Mr Corney’s account with suppliers (not applying selected indicia).
The substantial amendment of the grounds of appeal meant that the matter had to be listed for oral hearing so that all parties had an opportunity to address the new issues. That significantly delayed the resolution of the matter and was unacceptable. The legal profession is reminded, yet again, that appeals must comply with Practice Direction No 6.
Before setting out the above grounds, counsel for Mr Scott, Mr Hickey, sought leave to submit that the Arbitrator also erred in not applying what he (wrongly) called the “focal point test”. He sought leave because he had not relied on this “test” at the arbitration. His application for leave is considered below under “Leave to Raise New Matters on Appeal’, at [97].
In view of the way the appeal has unfolded, it is convenient to first deal with the grounds of appeal that raise issues that were before the Arbitrator, namely grounds 1, 9, 10, 11, 12 and 13. If relevant error is established under any of these grounds, it will not be necessary to deal with Mr Hickey’s application for leave to raise the new issue on appeal, which is relevant to grounds 2–8.

GROUND 1: NOT ACCEPTING MR SCOTT’S EVIDENCE/REFUSAL TO ALLOW CROSS-EXAMINATION

The Arbitrator’s reasons

The Arbitrator did not wholly reject Mr Scott’s evidence or wholly accept Mr Corney’s evidence. The main areas where the Arbitrator accepted Mr Corney’s evidence appear at [92]–[94] and [116]:
“92.… Mr Corney also acknowledged that he was not disappointed with the quality of work carried out by [Mr Scott]. [Mr Scott] has not, in his evidence, specifically addressed the claim by Mr Corney of the sub-contracting out of some work. In this circumstance[,] I accept Mr Corney’s evidence in this regard. This appears to be related to warranty work which [Mr Scott] undertook on behalf of Digquip. This sub-contracting out of some work is in my view consistent with a contract for services rather than that of a contract for service.
93.In my view the hours of work of [Mr Scott] were fixed by him to suit his convenience, and not fixed by [Mr Corney]. It appears from the evidence that [Mr Scott] worked as long as it took to complete the various jobs assigned to him by Mr Corney, and billed [Mr Corney] for these hours worked. It suited [Mr Scott] to start and finish early because of the need to attend to his sick son, the distance he had to travel to and from work, and the opportunity it gave him to attend to other work. [Mr Scott] states that as a matter of courtesy he advised Mr Corney when he was leaving for the day and I accept this. However I do not accept that [Mr Scott] was obliged to remain at [Mr Corney’s] premises for a certain number of hours each week irrespective of whatever work was there for him to complete.
94.Similarly I do not accept [Mr Scott’s] evidence at [20] of his statement dated 24 January 2014 that when he was working ‘full time’ he could not take time off unless he was sick or had some personal reasons such as a medical appointment or funeral. He goes on to say ‘on the odd occasion when John Corney wanted me to do a repair job and I was unable to because either my son was sick or I had to go to an appointment John Corney would act in a hostile manner towards me. He made it quite clear I had to work the set hours (or more).’ Mr Corney has denied hostility to [Mr Scott] in this regard and I accept this. I do not accept that there was an obligation on the applicant to work the ‘set hours’. The hours [Mr Scott] worked were determined by the length of time it took to complete the work assigned to him by [Mr Corney]. These hours were reflected in the tax invoices given by Mr Scott to the first respondent each week.
…
116It is apparent that Mr Scott carried out most of the work assigned to him and Mr Corney was happy with the way in which this work was performed. However[,] I accept Mr Corney’s evidence that [Mr Scott] did have the right to refuse to carry out a particular job, and, indeed, on a couple of occasions told Mr Corney he would not be doing any further work (off site) on the machinery of particulate [sic, particular] clients because of the condition or age of the machine.”

Submissions

Mr Hickey submitted that the Arbitrator erred in giving more weight to Mr Corney’s evidence over Mr Scott’s evidence when there was a significant credit issue with Mr Corney’s evidence and the Arbitrator refused Mr Hickey’s application for leave to cross-examine Mr Corney.

Discussion and findings

The issue relating to Mr Corney’s credit arises as follows. Mr Scott submitted two claim forms. Though they are both dated 1 August 2013, it is accepted that the form prepared first in time identified “Dig Quip [sic]” as Mr Scott’s employer and gave a start date of 31 October 2010. The second, which was in fact not completed until on or about 3 August 2013, identified “Metric Minerals” as Mr Scott’s employer and gave a start date of 1 July 2013.
Further, Mr Scott submitted two invoices dated 17 July 2013. They are identical, save that one is addressed to “Dig Quip” and the other has a line through “Dig Quip” with “Metric Minerals” written in its place. Similarly, Mr Scott altered the invoice of 22 July 2013, relating to the work on the dump truck, to strike a line through “Dig Quip” and write “Metric Minerals” in its place.

At the arbitration on 13 May 2015, the Arbitrator gave leave for the third respondent’s counsel, Mr Halligan, to cross-examine Mr Scott about the claim forms and the invoices of 17 and 22 July 2013. In that cross-examination, Mr Scott said that he “refiled the second claim form a[t] the request of Mr Corney” (T28.11 – 13 May 2015) and altered the invoices at the “request and insistence of Mr Corney” (T27.13 and T32.10 – 13 May 2015) after the work was performed. This added nothing to the evidence that was already in Mr Scott’s statements.
Mr Hickey sought leave, also on 13 May 2015, but before Mr Scott was cross-examined, to cross-examine Mr Corney because, he submitted, there were matters of credit and the Arbitrator would need to assess the evidence and the demeanour of Mr Scott and the first respondent. He contended that the invoices, in particular, and original claim form of 1 August 2013, together with ASIC records and some material filed by Mr Scott needed “to be presented to Mr Corney in cross examination for his commentary or explanation in the light of how the evidence has panned out so far” (T12.6 – 13 May 2015). (The reference to “how the evidence has panned out so far” was a reference to the evidence in the statements filed with the Commission.) He added that the submissions could be made “just on the documents but you will be somewhat hamstrung in assessing the credibility of the worker as opposed to what he alleges was his employer in determining the worker issue” (T12.10 – 13 May 2015).
The Arbitrator (at [24]) refused that application because:
(a)     the matter had a significant history in the Commission;
(b)     it had been the subject of a teleconference on 17 November 2014, when directions were made and it was stood over for conciliation/arbitration on 4 February 2015 and there was no suggestion on either of those dates that cross-examination of Mr Corney was to be sought. Nor was there any subsequent suggestion, at the teleconference on 3 March 2015, of a need to cross-examine, and
(c)     there was a large volume of written material in the matter.
On appeal, Mr Hickey submitted (at T85.5 – 22 December 2015) that it:
“was an error to accord more weight to the evidence of Mr Corney over [Mr Scott’s] evidence when there was clearly a significant credit issue brought out in relation to the cross-examination of [Mr Scott] by the third respondent’s counsel and no response to that cross-examination when the first respondents in person were there and had been at every Arbitration.”
Mr Hickey added that to accord him no right to cross-examine Mr Corney, because it was not flagged at a teleconference, was unfair.
I do not accept Mr Hickey’s submissions. First, there is no right to cross-examination in the Commission (Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 per Bryson JA at [37] (Handley JA and Bell J agreeing) (Zheng)).
Second, as Bryson JA observed in Zheng (at [25]), an Arbitrator “is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise”. In other words, whether cross-examination is allowed is a matter for the Arbitrator’s discretion. Mr Hickey has not demonstrated how the Arbitrator erred in the exercise of his discretion and has not established any of the matters raised in House v R (1936) 55 CLR 499 as being necessary to establish such an error.
Third, in the present case, the issue upon which Mr Scott was cross-examined was obvious from the written material already in evidence. Mr Scott had always made it clear that Mr Corney requested him to change both his invoice and his claim form to nominate the third respondent as the relevant employer.
Mr Scott’s written evidence was that, on 3 August 2013, he had a discussion with Mr Corney to the following effect:
“… John [Corney] handed me a letter which stated that his solicitor had told him he had no responsibility for my workers compensation because I was on contract and worked my own hours. He then offered me a solution and asked me to re-write a page of the WorkCover document that he had copied from the website and insert it into my original WorkCover claim form. John [Corney] told me that the work I had been doing on the Tromel [sic] was for a company called Metric Minerals, a name that I had never heard before, and that the injuries that I had sustained at Glen Innes on the dump truck, which John [Corney] said belonged to Metric Minerals, would be covered by their Workers Compensation Policy. John [Corney] then handed me a letter stating that he was a partner in Metric Minerals.
At no time was I ever advised that I was working for Metric Minerals.
…
On the WorkCover form that John [Corney] gave me, he requested that I change the name form Dig Quip [sic] to Metric Minerals and the start date from the 31^st August 2010 (which was my start date with Dig Quip [sic]), to 1^st July 2013, he then stated that Metric Minerals had Workers Compensation to cover me for my injuries. So I complied with his request.
I was also requested to change various invoices and statements of mine which I had earlier submitted to Dig Quip [sic] for payment to Metric Minerals. I agreed to his request and crossed Dig Quip [sic] off and wrote Metric Minerals underneath and their address on one statement.”
Mr Scott further asserted, in the same statement, that, on 9 August 2013, Mr Corney said:
“John [Corney] then told me he needed me to re write a number of invoices and statements dating from the 1^st July 2013 that the ABN that was on my stamp was incorrect. John [Corney] also asked me to leave certain things off the invoices and statements that was associated with work I had done on a tractor bought off Dig Quip [sic] by a Dr Botez in July, 2013. John [Corney] then asked Sue, his wife, to find the sheet of paper with invoice dates and numbers which Sue could not find, so she printed another copy John [Corney] handed it to me. Sue also printed a copy of the certificate of capacity from Dr Abass and they wanted to change the employer’s name from ‘Dig Quip’ which Sue circled in red biro to ‘Metric Minerals’. I took both papers and left the office.”
This evidence was the subject of submissions by Mr Halligan, who said that there had been no attempt by Mr Corney, or his wife, to challenge the accuracy of Mr Scott’s evidence on these matters and that what occurred was a misrepresentation, which, under s 235A of the 1998 Act, gave rise to an offence. It followed, Mr Halligan contended, that the third respondent could not be liable as a s 20 principal. He added that this evidence reflected “badly” on Mr Scott because he knew the changes he made were inaccurate and said so.
Mr Hickey also addressed on this evidence. He said, at T54.29 – 10 July 2015:
“So what I’m alluding to and now perhaps stating is that there’s been, on one view of it, some underhandedness in terms of what the worker was told to do after a realisation that he was putting in a claim form for workers compensation and had submitted a medical certificate. I [sic, he] was given on no doubt[,] on the evidence[,] a cold shoulder and told to proceed against Metric Minerals. Why? In my submission, it’s hard to know and in one way that’s a submission against my interest because the worker could proffer a case and does, in the alternative, of a section 20 principal case, but I think that on the evidence it’s hard to get there and so my primary submission is that really the worker was an employee of the first respondent and the master and servant indicia are made out and there is some veiled attempt to bring Metric Minerals in as an employer in the first instance rather than a principal.”
Mr Hickey submitted (at T57.31 – 10 July 2015) that there was an inference that Mr Corney “resorted to setting up this type of arrangement”, that is, that Mr Corney resorted to setting up a s 20 principal claim against Metric Minerals. Mr Hickey added that he stopped “short of making the more serious submission because Mr Corney hasn’t been cross-examined about this, but the evidence speaks for itself” (T57.33 – 10 July 2015). He added that the Arbitrator would find it “hard to accept” (T58.15 – 10 July 2015) Mr Corney’s evidence about the implication of Metric Minerals as either an employer or a s 20 principal. He concluded, on this point, at T59.4:
“So I don’t make the more serious allegation but I simply say it’s not without difficulty that you’re going to have to deal with this in terms of what’s there. It’s suspicious and there is an available inference that this was done for reasons - untoward reasons and it is an attempt to veil the true relationship that existed between the worker and Digquip and the first respondent.”
After referring (at [122]) to the claim forms, the altered invoices, and the parties’ submissions, the Arbitrator said, at [123]:
“123.If the foregoing was an attempt by Mr Corney, participated in by [Mr Scott] at the time, to mislead as to who was the employer of Mr Scott at the time he was injured, it does reflect badly on these two persons. Alternatively[,] it may be that a belief was held by Mr Corney that as the Wabco dump truck was being prepared for the third respondent, it could be said that [Mr Scott] was ‘employed’ by it at the time of injury. It is not necessary to make a finding in this regard. What is quite clear is that [Mr Scott] was not employed by the third respondent at the time he was injured on 22 July 2013.”
Mr Hickey made no submission that, because of Mr Corney’s conduct relating to the changes to the claim forms and the invoices, Mr Scott’s evidence should be preferred where it conflicted with Mr Corney’s evidence. His submissions about Mr Corney’s conduct were made in the context of the potential s 20 claim against Metric Minerals and he stopped short of going further, presumably because Mr Corney had not been cross-examined. His next submission was merely that Mr Corney’s conduct was “suspicious” and that there was an available inference that Mr Corney attempted to “veil the true relationship that existed between the worker and [Digquip]”.
The fact that Mr Corney had not been cross-examined about a matter that was already in evidence did not mean that his credit could not be attacked. Mr Scott’s statements squarely raised significant issues about Mr Corney’s conduct. Based on those statements, Mr Halligan made a vigorous attack on Mr Corney’s credit and even suggested a breach of s 235A, which creates an offence if, by deception, a person obtains or attempts to obtain any financial advantage in connection with the workers compensation scheme under either the 1998 Act or the 1987 Act. It was open to him to do so even though he had not cross-examined Mr Corney (New South Wales Police Force v Winter [2011] NSWCA 330 from [81]).
Therefore, given the way Mr Hickey presented his client’s case, the Arbitrator’s refusal to grant leave to Mr Hickey to cross-examine Mr Corney has had no relevant impact on the outcome. It was open to Mr Hickey to address on Mr Corney’s credit. Save for the oblique submissions noted above, namely, that Mr Corney’s conduct was “suspicious” and that an inference was available that Mr Corney had encouraged the alteration of the documents in an attempt to “veil the true relationship that existed between” Mr Scott and the first respondent, Mr Hickey did not do so in any meaningful way. He certainly did not suggest that there were any particular reasons, relating to Mr Corney’s credit, for accepting Mr Scott’s evidence over Mr Corney’s evidence.
It was open to the Arbitrator to weigh the evidence as he did. Noting (at [74]) that the events in dispute happened a long time ago, and that Mr Scott and Mr Corney were attempting to recall conversations and incidents that occurred during busy working days, and in circumstances in which they never expected to be called upon to remember, the Arbitrator said that it was inevitable that there would be an element of reconstruction of events. Therefore, to assess what occurred, he said it was necessary to look at other objective evidence that could not be disputed.
Essentially, that is what the Arbitrator did. He also looked at the areas where there was either common ground between the parties or where Mr Scott had not disputed Mr Corney’s assertions. For example, the parties did not dispute the mode of remuneration, which was the subject of extensive documentary evidence. Mr Scott did not dispute that he subcontracted certain work, or that he refused to work on the machines of some of the first respondent’s clients. Thus, even if it the Arbitrator erred in refusing Mr Hickey leave to cross-examine, given the objective or undisputed evidence, it has not affected the outcome.
This ground of appeal is not made out.

GROUNDS 9, 10 and 11: CONTROL

The Arbitrator’s reasons

These grounds relate mainly to the Arbitrator’s findings at [103], [104] and [116]. At [103], the Arbitrator said that he did think that, on the day Mr Scott was injured, Mr Scott was under the “control” of Mr Corney in attending to the replacement of the batteries in the dump truck. He said, “it was a direction by Mr Corney to Mr Scott to carry out a job, consistent with the various duties in which [Mr Scott] had been engaged for the first respondent since 2010. It was a two man job and Mr Corney was the second person for the job.”
The Arbitrator added, at [104]:
“104.I think that on the evidence it cannot be shown that Mr Corney was exercising such a degree of control over [Mr Scott] in his work both at the first respondent’s worksite and off site consistent with the role of master/servant (that is a contract for service) as opposed to a contract for [sic, of] services. Therefore any ‘control’ of [Mr Scott’s] duties alleged by him do not in my view favour a finding of a contract of service between the parties.”
The Arbitrator acknowledged (at [116]) that Mr Corney had the right to direct Mr Scott as to the jobs he had to attend to and broadly the way those jobs were to be carried out. However, he concluded that “[o]verall” the “control” indicium favoured a finding that Mr Scott was not a worker.

Submissions

Mr Hickey argued that the Arbitrator erred in saying that Mr Scott was not under Mr Corney’s control on the day of the injury. He contended that it was the scope for control, not the exercise of control that is important. The Arbitrator likened the events on the day of the injury to the various duties Mr Scott had been engaged in for Mr Corney since 2010. When one looked at what Mr Scott did for Mr Corney since 2010, that had to be an error.
Mr Hickey said that every day Mr Scott went to the first respondent’s premises he was directed what to do, he used Mr Corney’s tools, he worked in the first respondent’s workshop, he did warranty repair work for the first respondent and, outwardly, he was not presenting as an entrepreneur in his own right. Mr Scott would be assigned a task and, at any time, Mr Corney would interrupt that task and say, “I want you to go and do this because its more urgent”. That, Mr Hickey urged, was evidence of control.
Mr Hickey submitted that it was implicit that, on the day of the injury, Mr Corney directed Mr Scott as to what was to be done. This followed from the fact that Mr Scott was taken to the site in the first respondent’s vehicle, he worked with Mr Corney, and that, at lunchtime, Mr Corney drove Mr Scott into town. After lunch, work continued. This evidence had to be viewed in the context that, at about this time, Mr Corney was trying to find some other work for Mr Scott, which was not something that a principal would do for an independent contractor.
Other evidence of control was said to be the fact that Mr Scott was permitted to “charge up” supplies to the first respondent at certain outlets where the first respondent had accounts, Mr Scott’s mode of charging Mr Corney was controlled, if Mr Scott did not work he was required to notify Mr Corney and get permission to be absent (something that Mr Corney disputed), Mr Corney’s direction that Mr Scott change his claim form, and the fact that Mr Corney required Mr Scott to perform a work trial prior to starting work for him in 2010.
Mr Hickey also relied on Mr Corney’s evidence of a conversation he had with Mr Scott on 3 August 2013. On that day, Mr Scott had returned to the first respondent’s premises to collect his tools. His tools were loaded onto his work truck and Mr Scott said to Mr Corney, “Does this mean that my services are terminated?” Mr Corney replied, “I did not say that”. Mr Hickey submitted that this was not the statement of a principal to a contractor.
Mr Hickey contended that the Arbitrator failed to refer to relevant material that fulfilled the (control) test. He referred to Mr Scott’s evidence that Mr Corney approved the work Mr Scott did on the neutral switches on loaders, the work he did on the brackets and harness on another loader and supervised small mechanical repairs.
Mr Hickey submitted that the Arbitrator erred in failing to employ the correct test in relation to control, which is to look at the scope for control, not actual control. The Arbitrator further erred in saying (at [104]) that it could not be shown that Mr Corney was exercising such a degree of control consistent with the role of master and servant when, in fact, the evidence established that level of control. He said that the Arbitrator gave no reasons (at [104]) as to why he could not find in favour of Mr Scott.
Referring to the Arbitrator’s finding (at [101]) that he did not accept Mr Corney’s assertion that Mr Scott always worked alone, Mr Hickey submitted that that indicated control by Mr Corney.
Mr Hickey submitted that the degree of control exercised was sufficient to show a relationship of employer and employee and the Arbitrator erred in not making that finding.

Discussion and findings

I do not accept Mr Hickey’s submissions.
In an appeal of this kind, it is important to keep in mind the observations of McColl JA (Ipp and Tobias JJA agreeing) in Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 at [15] (Langford). Referring to the approach an appellate court should take to “reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533”, her Honour said that:
“it is not enough that an appellate court might have come to a different conclusion – before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”
Consistent with s 352 of the 1998 Act, which restricts appeals to the identification and correction of error, it is not enough that a Presidential member might take a different view of the case presented. Mr Scott must establish relevant error by the Arbitrator. For the reasons explained below, he has not done so. Rather than attempting to establish any relevant error by the Arbitrator, Mr Hickey has essentially attempted to conduct the appeal as a rehearing or new hearing. That is not permissible in a s 352 appeal (s 352(5)).
The Arbitrator was well aware that, consistent with Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 (Articulate Restorations), the application of the control test requires consideration of the scope for control and not the actual exercise of control. It was open to the Arbitrator to conclude that, on the day of the injury, Mr Scott was not under Mr Corney’s control. Mr Hickey has pointed to no direct evidence that Mr Corney exercised any relevant control on that day, nor has he pointed to any relevant error by the Arbitrator. He has merely argued that it was “implicit” that, on the day of the injury, Mr Corney directed Mr Scott what to do and that the Arbitrator should have inferred that Mr Corney exercised control over Mr Scott. There is simply no basis for that submission.

The fact that Mr Scott went to the site at Glen Innes in the first respondent’s vehicle, that he worked with Mr Corney and that they apparently had lunch together is of limited, if any, relevance to the issue of control. The Arbitrator was aware of the circumstances surrounding the work on 22 July 2013 and nothing in Mr Hickey’s submissions has come close to establishing error by the Arbitrator.
The fact that Mr Corney was trying to find other work for Mr Scott has nothing to do with the application of the control test and is irrelevant to whether the Arbitrator erred on this issue.
The Arbitrator did not err in likening the events on 22 July 2013 to the various duties Mr Scott had been engaged in for Mr Corney since 2010. Mr Scott conceded that his relationship with Mr Corney was initially one of contractor and principal. His case was that the relationship changed in late 2011 to being a full-time employee of the first respondent. The objective evidence in the financial records confirms that that assertion was incorrect. Mr Scott did not work full-time for Mr Corney. The financial records demonstrate that, in the year to 30 June 2013, Mr Scott worked an average of 28.7 hours per week for the first respondent. They also demonstrate that Mr Scott did not work exclusively for the first respondent, but also worked for others, albeit to a reduced extent from late 2011. The Arbitrator analysed the financial records in detail at [106]–[111]. He noted (at [111]) that they revealed regular receipts of income of varying but significant amounts from sources other than the first respondent.
The Arbitrator accepted that Mr Corney told Mr Scott what to do. On its own, that did not establish that Mr Scott was a worker employed by the first respondent. Nor did it mean that the Arbitrator was obliged to make that finding. Consistent with the case Mr Hickey presented, and the authorities upon which he relied, the Arbitrator had to look at the totality of the arrangement.
The Arbitrator noted (at [99]) Mr Hickey’s submission that Mr Scott was under a significant degree of control by Mr Corney in his day to day activities and the way certain jobs were to be carried out. He referred to Mr Scott’s evidence that he was asked to build a set of ramps on a four-wheel trailer and told words to the effect “build it like this”, only to have Mr Corney change his mind and ask him to do it differently and re-do the job. On another occasion, Mr Scott was required (by Mr Corney) to adapt neutral switches to Australian standards, a job that was eventually approved by Mr Corney. Another instance related to the design and set up of the brackets and harness for one of Mr Corney’s loaders. Mr Hickey’s submission that the Arbitrator failed to refer to this evidence was incorrect.
The Arbitrator (at [100]) referred to Mr Corney’s evidence that he denied constantly supervising Mr Scott and that he (Mr Corney) had a multitude of other jobs to attend to in running the first respondent’s business. Mr Corney said, and it was not disputed by Mr Scott, that he was not present at 5.30 am, when Mr Scott started work, as he did not arrive until 8 am.
At [101], the Arbitrator correctly noted that Mr Corney engaged Mr Scott because of Mr Scott’s specialist knowledge and experience as a heavy diesel mechanic. Mr Scott undertook other duties assigned to him by Mr Corney relating to the fabrication of various parts for machinery and equipment, improving the standard of some of the imported machinery, design and installation of neutral switches on loaders (a safety issue for which Mr Scott took responsibility) and the carrying out of service and warranty work on machinery sold or supplied by Mr Corney.
The Arbitrator did not accept Mr Corney’s assertion that Mr Scott “always worked alone and unsupervised”, but he accepted that he did so for a large part of the time during which he was engaged by Mr Corney. Contrary to Mr Hickey’s submission, the rejection of this part of Mr Corney’s evidence did not mean the Arbitrator had to conclude that Mr Corney exercised such control that a finding of worker had to be made. The Arbitrator had to assess and weigh the whole of the evidence. He was entitled to give weight to the fact that Mr Scott worked unsupervised for a large part of the time he worked for the first respondent. The parties have not submitted that the evidence allowed for a more precise determination of how much time Mr Scott spent working unsupervised.
At [102], the Arbitrator correctly acknowledged that there needed to be a distinction drawn between the notions of a reasonable “direction” for carrying out Mr Scott’s duties and the concept of “control”. He said that there was obviously a contractual right for Mr Corney to direct what jobs were to be carried out by Mr Scott in the discharge of the oral agreement and to direct what he wanted in respect of particular jobs. However, he added that, because of the specialised nature of the work (particularly the diesel mechanical work), “Mr Corney did not exercise control over much of the work carried out by Mr Scott but relied on his [Mr Scott’s] specialist qualifications and experience” ([102]). This was, the Arbitrator said, consistent with the agreement Mr Scott and Mr Corney first entered into in July/August 2010, when it is agreed the arrangement was one of independent contractor and principal. These findings were open on the evidence and disclosed no error.
The Arbitrator returned to the issue of control at [116], where he said that Mr Corney “had the right to direct [Mr Scott] as to the jobs he had to attend to and broadly the way these jobs were to be carried out”. In this sense, the Arbitrator said that “the indicia of the ultimate right of control” favoured a finding that Mr Scott was not a worker employed by Mr Corney. Within the broad directions given by Mr Corney to Mr Scott “in respect of the jobs to be done and manner in which they were to be carried out, [Mr Scott] exercised a degree of independence and retained a large discretion in the way he performed the work”. This was consistent with Mr Scott’s evidence (which the Arbitrator recorded at [91]) that “the responsibility for his work came back to him”. It was also consistent with the fact that Mr Scott took “responsibility” ([101]) for the design and installation of the neutral switches referred to at [61] above. It follows that the Arbitrator’s finding was open on the evidence.
The Arbitrator quoted (at [114]) the observation by Kirby P (as his Honour then was) in Articulate Restorations, that “a lack of effective real control and supervision may not, in a particular case, be determinative”, but in today’s employment market, may be neutral as to the nature of the relationship. The Arbitrator added (also at [116]) that:
“Overall I think that the ‘control’ indicium of employment favours a finding that [Mr Scott] was not a worker. It was obviously of mutual benefit to [Mr Scott] and the first respondent to have Mr Scott carry out the work at the direction of Mr Corney at the Inverell premises of the first respondent. It is apparent that Mr Scott carried out most of the work assigned to him and Mr Corney was happy with the way in which this work was performed. However I accept Mr Corney’s evidence that [Mr Scott] did have the right to refuse to carry out a particular job, and, indeed, on a couple of occasions told Mr Corney he would not be doing any further work (off site) on the machinery of particulate [sic, particular] clients because of the condition or age of the machine.”
The above findings were consistent with the evidence and disclosed no error. It was not disputed that Mr Scott had refused to do certain jobs. That was not consistent with an employment relationship. Nor was it consistent with Mr Corney retaining the lawful authority to command and direct Mr Scott in the performance of his work. Similarly, the fact that Mr Scott set his own hours was also inconsistent with Mr Corney retaining the right to control. The Arbitrator was entitled to take these matters into account in his assessment of the claim.
An important additional point must be noted. Contrary to the submissions by counsel for the first respondent, Mr Tanner, and for the second respondent, Mr Baker, it is not necessary that the putative employer exercise control in the manner in which the particular tasks are performed. It has long been established that, especially in the case of employees who have specialised skills, an employer cannot supervise the mode of performance of the work. It will be enough that the employer retains “lawful authority to command so far as there is scope for it”, if only in “incidental or collateral matters” (Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571). The Arbitrator was not satisfied that Mr Corney retained such authority to command Mr Scott in the present case. That finding was open on the evidence.
The other matters relied on by Mr Hickey do not establish relevant error by the Arbitrator. That Mr Scott was permitted to “charge up” supplies to the first respondent at certain outlets merely demonstrates that Mr Scott had authority to make purchases on behalf of the first respondent. The exact terms of that authority were not disclosed in the evidence and are, in any event, of limited relevance.
The submission that Mr Corney controlled Mr Scott’s “mode of charging” was incorrect. The mode of charging was by Mr Scott submitting invoices to the first respondent setting out the work done, the time taken, and the amount charged per hour plus GST. Though Mr Scott said that that system was “put in place” by Mr Corney, it was a system that was consistent with a contractor invoicing a principal, which Mr Scott conceded was the nature of the relationship from the outset. It was not something that was forced on him. It was not a demonstration of relevant control by Mr Corney over Mr Scott.
Mr Corney disputed the assertion that Mr Scott needed permission from Mr Corney to be absent from work. The Arbitrator (at [93]) accepted Mr Scott’s evidence that, as a courtesy, he advised Mr Corney when he was leaving for the day. However, he did not accept that Mr Scott was obliged to remain at the first respondent’s premises for a certain number of hours each week irrespective of whatever work was there for him to complete. That finding was open on the evidence.
Though the Arbitrator did not directly determine the issue of whether Mr Scott needed permission to be absent from work, he found that the hours of work were fixed by Mr Scott, to suit his convenience, and that he worked as long as it took to complete the jobs assigned to him. This implies that the Arbitrator did not accept Mr Scott’s assertion that he needed permission to be absent from work. This conclusion was open on the evidence and was consistent with the fact that Mr Scott only worked the hours necessary to complete the jobs assigned to him.
The submission that Mr Corney’s direction that Mr Scott change his claim form demonstrated control is incorrect. It may have demonstrated Mr Corney’s belief that Metric Minerals was the contractor responsible to pay compensation for Mr Scott’s injury. It had nothing to do with the exercise of the lawful authority to command an employee in the performance of his duties. It was not done in the context of an employer directing an employee in how to complete a claim form. It was done because, on Mr Corney’s account, at the time of the injury Mr Scott was not working for the first respondent but for Metric Minerals.
The relevance of the so-called work trial is unclear. Mr Scott’s evidence was that, in his first discussions with Mr Corney, he asked if Mr Corney wanted to see his resume. Mr Corney said “no”, but said that Mr Scott’s first job would be to rebuild a transmission in a broken down front end loader. I do not accept that that was a “work trial”. How this evidence demonstrated error by the Arbitrator was not explained. It occurred at a time when Mr Scott conceded that the relationship was one of independent contractor and principal. It was therefore irrelevant.
Mr Hickey’s reliance on the conversation on 3 August 2013, when Mr Scott said “Does this mean that my services are terminated?” and Mr Corney replied, “I did not say that”, is misplaced. At its highest, it may have indicated that Mr Scott believed, as he has asserted in this case, that he was an employee. It is equally open to the interpretation that Mr Scott was merely asking if his services as an independent contractor were being terminated. Whichever interpretation one places on the conversation, Mr Scott’s subjective belief is of limited, if any, relevance to the issues the Arbitrator had to determine (the Commission must look at the substance or reality of the relationship: Curtis v Perth and Fremantle Bottle Exchange Co Limited [1914] HCA 21; 18 CLR 17 at 25; Hollis v Vabu (2001) 207 CLR 21 at [58] (Hollis)). The Arbitrator did not err in not placing any weight on the conversation.
It follows that it was open to the Arbitrator to conclude that it could not be shown that Mr Corney exercised such a degree of control consistent with the role of master and servant. I accept that there was some evidence of control, but it was far from determinative. As discussed above, the Arbitrator considered that evidence and reached a conclusion that was open to him.
Grounds 9, 10 and 11 are not made out.

GROUND 12: BUSINESS EXPENSES, WORK FROM OTHER CLIENTS AND INSURANCE

The Arbitrator’s reasons

This ground of appeal relates to the Arbitrator’s findings at [117], where he said:
“117.To summarise, other indicia which favour a finding that [Mr Scott] was not a worker employed by the first respondent are:
(a)the mode of remuneration and the way in which the rate at which [Mr Scott] was to be paid by the first respondent was negotiated. That is an initial hourly rate of $40 (plus GST) offered by the first respondent, with a subsequent increase to $50 per hour at the request of [Mr Scott];
(b)the non-deduction of income tax by the first respondent from amounts paid by it to [Mr Scott];
(c)the fact that [Mr Scott] paid from the remuneration received from the first respondent and other clients significant business expenses;
(d)the non-provision by the first respondent of holiday pay, sick leave and superannuation;
(e)the hours of work and the fact that [Mr Scott] only charged for and was paid for the hours actually worked. The weekly hours worked averaged, on the evidence, about 28 but varied, and usually did not include any Friday work;
(f)the fact that [Mr Scott] continued to obtain work from clients other than the first respondent throughout the time he was engaged by the first respondent;
(g)the fact that [Mr Scott] at all times maintained loss of income insurance, and
(h) the provision of equipment.”

Submissions

Mr Hickey submitted that the Arbitrator erred in giving too much weight to points (c), (e), (f), (g) and (h) at [117]. He contended that, with respect to these matters, the Arbitrator did not discriminate between two different areas: first, where Mr Scott carried out his own business and, second, where Mr Scott worked for the first respondent. He argued, relying on Hoskins v Boshane Pty Ltd & Anor [1994] NSWCC 33; (1994) 10 NSWCCR 698 (Hoskins), that a person can be a contractor and an employee. Therefore, points (c), (e), (f), and (g) are neutral and do not support a finding against Mr Scott.
Dealing with point (h) at [117], the provision of equipment, Mr Hickey submitted that this point is in favour of Mr Scott because he is an expert diesel mechanic and the situation is no different to that in Articulate Restorations. He relied on the fact that Mr Scott used equipment at the first respondent’s premises and left his own tools there permanently.

Discussion and findings

I do not accept Mr Hickey’s submissions.
The Arbitrator carefully considered Hoskins and clearly felt that it could be distinguished on its facts. The Arbitrator noted (at [113]) that, in that case, the claimant had, prior to working for the respondent, set up a business in partnership with his wife known as “Hoskins Building Repairs”. He was approached by a representative of the respondent and asked to work for it full-time for 40 hours per week as its technical manager, normally starting at 9 am and finishing at 5 pm. He was paid $3,500 per month, but paid his own tax. His pay was not dependent on his output. The respondent told the claimant where to work and controlled the work.
The trial judge discussed other indicia of employment: the right to hire and fire the claimant, the provision of tools (hand tools were provided by the claimant and power tools by the respondent), the provision of a company vehicle by the respondent with the respondent’s name on it, and the claimant’s work (measuring and quoting for jobs and installing doors and windows manufactured by the respondent). In the circumstances, the trial judge held that the claimant in Hoskins was a worker employed by the respondent, notwithstanding the fact that he concurrently performed activities in connection with the running of his own business.
The Arbitrator then considered and quoted from Articulate Restorations. He concluded that the evidence established that Mr Scott was engaged in his own business as a diesel mechanic throughout the time that the first respondent engaged him. Mr Hickey has not challenged that finding, which was clearly correct. The Arbitrator then considered if, notwithstanding that finding, Mr Scott was engaged by the first respondent under a contract of service when he was injured on 22 July 2013.
The Arbitrator then expressed the conclusions at [116], discussed earlier in this decision, and at [117]. He accepted that a claimant could have a business and still be a worker employed by another entity. However, for the reasons explained by the Arbitrator, the facts in Hoskins were clearly distinguishable from the present case, and he did not err in the manner alleged by Mr Hickey. The Arbitrator did not give too much weight to several of the matters listed at [117]. They were matters he was entitled to consider in his overall assessment of the evidence. His conclusions were consistent with the evidence and Mr Hickey has demonstrated no relevant error.
Dealing specifically with equipment, the Arbitrator said, at [87]:
“87.[Mr Scott] provided much of his own equipment and tools, as is evident from Exhibit ‘A’. He had a utility truck with a large toolbox in the tray thereof, and also a second large toolbox on wheels which was kept at the first respondent’s premises. [Mr Scott] also supplied to the first respondent a grinder for use in the work he was doing there, a photo of which is part of Exhibit ‘A’. [Mr Scott] was however a specialist diesel mechanic who had been for many years engaged in his own business and self-employment as such. In that circumstance it is not unusual that he would have many of his own tools, and that he would use them in the course of his work for the first respondent. In my view the fact of [Mr Scott] supplying and using many of his own tools when working for the respondent is an indication that he was not an employee of the respondent, but rather a contractor engaged in his own business as a specialist diesel mechanic.”
This finding was open on the evidence. Normally, the provision by the claimant of his or her own tools and equipment indicates that the person is an independent contractor (Hollis at [56]). However, that is not always so. In the present case, the Arbitrator was well aware that Mr Scott left some of his own tools at the first respondent’s premises and clearly considered that fact in his determination. He was also aware that the first respondent provided tools and equipment. In the circumstances, I do not accept that the Arbitrator’s approach on this issue was erroneous.

It follows that, applying the approach outlined in On Call, the end result is the same and no relevant error is demonstrated. For completeness, though it is not strictly necessary, I will consider Mr Hickey’s further submissions in support of grounds 2–8 inclusive. As the issues raised in these grounds overlap with the issues already discussed and determined against Mr Scott, my consideration of them will be brief.

GROUND 2: THE APPLICABLE TEST