Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust v Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust v Workers' Compensation Regulator [2020] QIRC 030
PARTIES:	Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2018/115
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	27 February 2020
HEARING DATES: DATES OF WRITTEN SUBMISSIONS:	1 April 2019, 2 April 2019, 3 April 2019 and 4 April 2019 Respondent's written submissions filed on 21 May 2019, Appellant's written submissions filed on 19 June 2019 and Respondent's written submissions in reply filed on 27 June 2019.
MEMBER: HEARD AT:	Merrell DP Toowoomba
ORDERS:	1. The appeal is allowed. 2. The decision appealed against is set aside and another decision is substituted, namely: *a. that Mr Tony Lowen was not a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003; and* b. that Mr Tony Lowen's claim for worker' compensation dated 22 January 2018 is rejected. 3. The Regulator pays the Appellant's costs of the appeal.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - physical injury - whether claimant was a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 - whether claimant worked under a contract - consideration of indicia as to whether claimant was an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), sch 1, pt 2-5 - consideration of whether claimant was a worker within the meaning of sch 2, pt 1, s 3 of the Workers' Compensation and Rehabilitation Act 2003
LEGISLATION:	Acts Interpretation Act 1954, s 14A Industrial Relations Act 2016, s 531 Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act2013, pt 4 Taxation Administration Act 1953 (Cth), sch 1, pt 2-5 Workers' Compensation and Rehabilitation Act 2003, s 11, s 558 and sch 2
CASES:	Ace Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 Ace Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 Church v Workers' Compensation Regulator [2015] ICQ 031 Commissioner of Taxation v Murry [1998] HCA 42; (1998) 193 CLR 605 Fair Work Ombudsman v Escoway Pty Ltd [2016] FCA 296 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 Lopez v Commissioner of Taxation [2005] FCAFC 157; (2005) 143 FCR 574 Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 Mimebourne Pty Ltd as Trustee for the Fountain Family Trust v Gambaro [2018] FCA 1619 Oliver v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 078 On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) [2011] FCA 366; (2011) 214 FCR 82 R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 Re Porter; Re Transport Workers Union of Australia [1989] FCA 226; (1989) 34 IR 179 Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 RSL Care Ltd v Wallace [2019] QCA 23 SPE Pty Ltd and Q-COMP and Gary Clifford Fuller [2010] ICQ 32 Stevens v Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 Yousifv Workers' Compensation Regulator [2017] ICQ 004 Zhong v Workers' Compensation Regulator [2018] QIRC 098
APPEARANCES:	Dr M. Brooks of Counsel instructed by Ms A. Pratt of Clifford Gouldson Lawyers for the Appellant. Mr P. O'Neill of Counsel directly instructed by Ms C. Shedden of the Respondent.

Reasons for Decision
Introduction

In November 2017, Toowoomba Demolition and Earthmoving Pty Ltd ATF The Castle Family Trust ('TDE') contracted with the State of Queensland to demolish and remove a house in Cunnamulla ('the Cunnamulla house'). TDE entered into a contract with a Mr Tony Lowen to work on the Cunnamulla house and also to work on another property at St George. The Cunnamulla house contained asbestos and required site decontamination as well as demolition and removal. The St George property only required site decontamination.[1] At that time, Mr Lowen held a Class B Asbestos removal licence.
[1] Paragraphs 39 and 40 of TDE's statement of facts and contentions filed on 31 August 2018 ('TDE's contentions') and para. 29 of the Regulator's statement of facts and contentions filed on 12 October 2019 ('the Regulator's contentions').
On 20 November 2017, Mr Lowen, in the course of working on the demolition of the Cunnamulla house, was injured.
On 22 January 2018, Mr Lowen lodged an application for workers' compensation for a broken pelvis.[2] WorkCover Queensland accepted Mr Lowen's claim. TDE then applied to the Workers' Compensation Regulator ('the Regulator') to review that decision. TDE contended that Mr Lowen was not a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').
[2] Exhibit 24.
By review decision of 22 May 2018, the Regulator confirmed the decision of WorkCover Queensland and decided that Mr Lowen was a worker within the meaning of s 11 of the Act.
TDE appeals against the review decision.
Section 11 of the Act provides:

11 Who is a worker
(1)A worker is a person who-
(a)works under a contract; and
(b)in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.[3]

(2)Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
(3)However, schedule 2, part 2 sets out who is not a worker in particular circumstances.
(4)Only an individual can be a worker for this Act.

[3] Schedule 1, pt 2-5, s 12-35 of the Taxation Administration Act 1953 (Cth) provides:

TDE contends that at the time of his accident on 20 November 2017, Mr Lowen was not a worker within the meaning of s 11 of the Act and was, at all relevant times, an independent contractor.[4]
[4] TDE's contentions, paras. 53-54.
The Regulator contends that at all times relevant to the work to be conducted at the properties in Cunnamulla and St George, Mr Lowen was a worker within the meaning of s 11 of the Act.[5]
[5] The Regulator's contentions, paras. 39-41.
The issue to be determined is whether Mr Lowen, when he was injured on 20 November 2017 at the Cunnamulla house, was a worker within the meaning of s 11 of the Act.
An appeal of this type, pursuant to ch 13, pt 3 of the Act, is a hearing de novo.[6]
[6] Church v Workers' Compensation Regulator [2015] ICQ 031, [27] (Martin J, President) ('Church').
The onus is on TDE to prove, on the balance of probabilities, that Mr Lowen was not a worker within the meaning of s 11 of the Act.[7]
[7] SPE Pty Ltd and Q-COMP and Gary Clifford Fuller [2010] ICQ 32, [10] (Hall P).
Was Mr Lowen a worker within the meaning of s 11(1) of the Act?
Whether Mr Lowen was a worker within the meaning of s 11(1) requires the determination of two sub-issues, namely:
·did Mr Lowen work for TDE under a contract?[8] and
·in relation to the work, was Mr Lowen an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), sch 1, pt 2-5?[9]
[8] Workers' Compensation and Rehabilitation Act 2003, s 11(1)(a).
[9] Workers' Compensation and Rehabilitation Act 2003, s 11(1)(b).
Did Mr Lowen work for TDE under a contract?
There is no dispute that when Mr Lowen worked for TDE at the demolition of the Cunnamulla house on 20 November 2017, it was under a contract between TDE and Mr Lowen.[10]
In relation to the work, was Mr Lowen an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), sch 1, pt 2-5?
[10] T 3-60, l 33 to T 3-61, l 20 and para. 3 of TDE's submissions filed on 19 June 2019 ('TDE's submissions') and para. 11 of the Regulator's submissions filed on 21 May 2019 ('the Regulator's submissions').
The Act
Part 4 of the Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act2013 amended the definition of 'worker' in s 11 of the Act to its current definition.
In respect of that amendment, the Explanatory Notes to the Industrial Relations (Transparency and Accountability of Industrial Organisations) and other Acts Amendment Bill 2013 provided:
Definition of ‘worker’ in the Workers’ Compensation and Rehabilitation Act 2003
Finally, the current definition of ‘worker’ in the WCR Act is considered to be unworkable; it creates uncertainty and adds to the regulatory burden on employers who have to interpret the definition i.e. who is a worker and who is a contractor. The Bill amends the definition of worker by aligning it with the tests used by the Australian Taxation Office (ATO) to determine whether a person is a worker for workers’ compensation purposes.[11]
…
Clause 71 amends section 11(1) to provide that a worker is a person who works under a contract and in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), schedule 1, part 2-5. This applies to a contract regardless of whether it is a contract of service or another kind of contract for example, a contract for piecework. This applies to a person for whom PAYG tax instalments are required to be withheld, or for whom they would be withheld if the withholding is not exempted, for example by tax free income thresholds.[12]
[11] Explanatory Notes, Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Bill 2013 (Qld), 3 ('Explanatory Notes').
[12] The Explanatory Notes (n 11), 16.
Section 11 of the Act, as amended, has been considered by the Commission. The approach taken is that the intention of the Parliament, in enacting the new definition, was to reflect the manner in which the Australian Tax Office ('ATO') would determine if an individual was an employee for PAYG withholding assessment purposes, namely, whether the person was an employee at common law.[13] Such an approach, having regard to the construction of the definition of 'worker' in s 11(1), is correct.
[13] Oliver v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 078, [90]-[91] (Deputy President Swan), Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182, [122]-[141] (Commissioner Thompson) and Zhong v Workers' Compensation Regulator [2018] QIRC 098, [85]-[96] (Vice-President Linnane).
The construction of a statute commences with a consideration of the words of the provision and its context, and context is understood in its widest sense and includes the surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole; and the context extends to the 'mischief' or defect in the law which is sought to be remedied, such that the mischief may point most clearly to what it is the statute seeks to achieve.[14]
[14] R v A2 [2019] HCA 35; (2019) 93 ALJR 1106, [32]-[33] (Kiefel CJ and Keane J with Nettle and Gordon JJ at [148] agreeing).
Section 11 of the Act, prior to its amendment by the Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act 2013 provided:

11 Who is a worker
(1) A worker is a person who works under a contract of service.
(2) Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
(3) However, schedule 2, part 2 sets out who is not a worker in particular circumstances.
(4)Only an individual can be a worker for this Act.

Schedule 2, pt 1 of the Act, prior to the 2013 amendment, relevantly provided:
1 A person who works under a contract, or at piecework rates, for labour only or substantially for labour only is a worker.
2 A person who works for another person under a contract (regardless of whether the contract is a contract of service) is a worker unless-
(a) the person performing the work-
(i) is paid to achieve a specified result or outcome; and
(ii) has to supply the plant and equipment or tools of trade needed to perform the work; and
(iii) is, or would be, liable for the cost of rectifying any defect in the work performed; or
(b) a personal services business determination is in effect for the person performing the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60.
Having regard to the Explanatory Note, the mischief to which the 2013 amendment to s 11 of the Act was directed was to persons who worked under a contract for services, but who were deemed to be workers where their circumstances met those referred to in sch 2, pt 1 of the previous version of the Act, including those reproduced immediately above. The mischief was remedied, in part,[15] by providing that a worker was a person who works under a contract and in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), sch 1, pt 2-5.
[15] In addition to amending sch 2, pt 1 of the Act by removing ss 1 and 2 as referred to in paragraph [19] of these reasons.
Both TDE[16] and the Regulator[17] developed their cases around the indicia, referred to in the authorities, which may point to whether or not Mr Lowen was an employee at common law.
[16] TDE's submissions, paras. 269-325.
[17] The Regulator's submissions, paras. 219-252.
Employee and independent contractor at common law

The distinction between an employee and an independent contractor is rooted fundamentally in the difference between a person who serves his or her employer in the employer's business and a person who carries on a trade or business of their own.[18]
[18] Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, [40] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ ('Hollis') citing Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210, 217 (Windeyer J). I acknowledge such a statement poses the ultimate question in a different way and does not offer a definition that could be applied for the purpose of providing an answer to the question: Stevens v Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, 35 (Wilson and Dawson JJ) ('Stevens').
The law has not been able to identify a single test to be applied in determining whether a given relationship is one of employment or one for the provision of services. The law adopts, instead, a multi-factorial approach.[19] The answer to the question of whether a person is an employee or an independent contractor is to be found not merely from the contractual terms between the parties, but from the system operated under the terms and the work practices imposed by the putative employer which establish the totality of the relationship between the parties.[20]
[19] Fair Work Ombudsman v Escoway Pty Ltd [2016] FCA 296, [71] (White J).
[20] Hollis (n 18), [24] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).

A number of indicia have been referred to in the decided cases. They include:
·the terms of the contract;
·the intention of the parties;
·whether tax is deducted;
·whether subcontracting is permitted;
·whether uniforms are worn;
·whether tools are supplied;
·whether holidays are permitted;
·the extent of control of, or the right to control, the putative employee whether actual or by law;
·whether wages are paid, or instead, whether there exists a commission structure;
·what is disclosed in the tax returns;
·whether one party 'represents' the other;
·for the benefit of whom does the goodwill of the business belong; and
·how 'business-like' is the alleged business of the putative employee – are there systems, manuals and invoices? [21]
[21] ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532, [29] (Perram J).
Other indicia are:
·the right to have a particular person do the work;
·the right to suspend or dismiss the person engaged;
·the right to exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like;
·whether the work involves a profession, trade or distinct calling on the part of the person engaged;
·the provision by the person of his or her own place of work or his or her own equipment;
·the creation by the person of goodwill or saleable assets in the course of his or her work; and
·the payment from the remuneration of business expenses of any significant proportion.[22]
[22] Stevens (n 18), 36-37 (Wilson and Dawson JJ).
In Tattsbet Ltd v Morrow,[23] Jessup J held that in contemporary Australia, it is impossible to ignore and difficult to deprecate the taxation implications of the mode of operation which parties to a relationship have voluntarily adopted; such that it is now no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees, that point quite strongly against the relationship being characterised in that way.[24]
[23] [2015] FCAFC 62; (2015) 233 FCR 46 ('Tattsbet').
[24] Ibid, [70] (Jessup J with Allsop CJ at [1] and White J at [140] agreeing).

In considering these criteria, the authorities make plain certain principles that assist in reaching a conclusion.
First, the label which the parties place on their relationship is not conclusive; the parties cannot deem the character of their relationship to be something it is not.[25] However, if the relationship is ambiguous, the parties can remove that ambiguity by the very agreement they make with each other[26] and the actual terms and terminology of the contract will always be of considerable importance.[27]
[25] Hollis (n 18) [58] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
[26] Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385, 389 (Lord Fraser of Tullybelton for the Privy Council) ('Chaplin').
[27] Stevens (n 18), 37 (Wilson and Dawson JJ).
Secondly, the assessment of the totality of the relationship is not to be undertaken mechanically by checking lists of indicia which decided cases have identified as tending towards or against characterising a person as either an employee or an independent contractor.[28] The indicia can be no more than a guide to the existence of the relationship of employer and employee; the ultimate question will always be whether a person is acting as an employee of another or on that person's own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.[29]
[28] Lopez v Commissioner of Taxation [2005] FCAFC 157; (2005) 143 FCR 574, [82] (Ryan, Lander and Crennan JJ).
[29] Stevens (n 18), 37 (Wilson and Dawson JJ).

Thirdly, of the indicia of employment, it is clear that the right to control remains an important consideration in many cases, which may be found in a right to organisation and allocation of work, as much as in some theoretical right to say how actual work should be done.[30]
[30] Ace Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146, [103] (Buchanan J, Lander J at [2] and Robertson J at [172] agreeing).

Fourthly, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that the person is an employee.[31]
[31] Hollis (n 18) [40] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
Fifthly, if the putative employee's circumstances exhibit the characteristics of a business, that will undoubtedly be a matter proper to be taken into account, so long as sight is not lost of the question itself, which is not whether the person is an entrepreneur, but whether he or she is an employee.[32]
[32] Tattsbett (n 23), [61] (Jessup J with Allsop CJ at [1] and White J at [140] agreeing).
Finally, the object of the exercise is to paint a picture from the accumulation of detail; and the overall effect can only be appreciated by standing back from the detailed picture which has been painted and by viewing it from a distance and making an informed, considered, qualitative appreciation of the whole.[33]
[33] Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939, 944 (Mummery J) cited with approval in Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448, [35] (Keane CJ, Sundberg and Kenny JJ).
The parties referred to various indicia in their submissions. I will consider the matter by having regard to the indicia referred to by the parties in their submissions. Having regard to the principles referred to above, it is necessary to commence with an analysis of the terms of the contract between TDE and Mr Lowen about the work to be conducted at the Cunnamulla house and at St George.
However, there were some dealings between Mr Geoffrey Castle, the owner of TDE, and Mr Lowen prior to the formation of that contract.
Given the contentions and submissions of the parties, that background requires some consideration.
Mr Castle, Mr Lowen and their businesses
Mr Castle
Mr Castle was originally a high school maths/science teacher. Mr Castle holds a Master of Science degree and, at the date of the hearing, was working towards a PhD in environmental science. In addition to having his own company, he is a licensed builder, a licensed A class asbestos removalist and a licensed demolition contractor.[34]
[34] T 1-7, ll 36-47.
In 1993, Mr Castle established a house washing business.[35] Then in 1996, Mr Castle started TDE as a demolition business.[36] Mr Castle stated that the house washing business gradually phased out after he built up TDE.[37]
[35] T 1-8, ll 1-4.
[36] T 1-8, ll 16-17.
[37] T 1-8, ll 19-21.
Mr Lowen
Mr Lowen left school part-way through grade 11 and from 1994 to 2000 worked in a bottle shop.[38] Mr Castle and Mr Lowen first met, on a social basis, in the early 1990s.[39] Mr Lowen's evidence was that he was Mr Castle's '… mate.'[40]
[38] T 3-2, l 25 to T 3-3, l 11 and T 3-4, ll 9-10.
[39] T 1-8, ll 23-24 and T 3-2, ll 40-41.
[40] T 3-34, l 20.
From 1996, Mr Lowen was employed by Mr Castle's house washing business, on a casual basis, for about 18 months. [41]
[41] T 1-8, l 43 to T 1-9, l 14.
Mr Lowen's evidence was that he commenced Mr Suds Housewashing in 1999,[42] it temporarily ceased operation in 2005, and recommenced operating in about 2014.[43]
[42] T 3-4, ll 21-22
[43] T 3-5, ll 8-17 and T 3-6, ll 36-39.
Mr Lowen stated that in 2007, he started doing some casual demolition labouring work for TDE[44] and that from 2013 he started doing more regular demolition labouring work, including asbestos removal, for TDE.[45]
[44] T 3-5, ll 30-37.
[45] T 3-6, ll 26-46.
In 2008, Mr Lowen registered an ABN in his own name.[46] There is no dispute that the ABN is 84 811 866 345.
[46] T 3-58, ll 19-20.
Mr Castle said that in mid-2013, he stopped employing individuals and used subcontractors.[47] Mr Castle stated that of his previous staff, Mr Lowen was the only person he contracted with after he ceased employing individuals because Mr Lowen '… was a family trust. He was a bona fide contractor. He had an asbestos licence in the name of the trust.'[48]
[47] T 1-9, ll 21-22.
[48] T 1-10, ll 9-14.
The Trustee for Lowen Family Trust
In 2008, Mr Castle formed a family trust of which he and his wife were the beneficiaries.[49] Mr Castle's evidence was that in 2013, he suggested to Mr Lowen that he should see Mr Liam Betts, Mr Castle's long term accountant who Mr Castle used for the creation of the Castle Family Trust.[50]
[49] T 2-56, ll 39-46 and T 1-65, l 21 to T 1-66, l 6.
[50] T 1-65, l 35 to T 1-66, l 15.
Mr Lowen's evidence was that Mr Castle suggested that he should see Mr Betts and that Mr Betts ' … would probably … ' set him up in a family trust which would be the best way for tax purposes and so on.[51] Mr Lowen's evidence was that prior to his discussion with Mr Castle, he did not have any knowledge or concept of a trust or a family trust.[52] Mr Castle denied that he suggested to Mr Lowen that he should put a family trust arrangement in place so that Mr Lowen could minimise this tax.[53]
[51] T 3-9, ll 31-39.
[52] T 3-9, ll 43-45.
[53] T 1-66, ll 17-18.
Mr Betts' evidence was that Mr Lowen made the appointment with him because Mr Lowen wanted to go through business structures, that he met Mr Lowen and went through the advantages and disadvantages of different types of entities, such as companies, trusts, partnerships and sole trading.[54] Mr Betts said he had no contact from Mr Castle about Mr Lowen prior to Mr Betts' meeting with Mr Lowen.[55]
[54] T 2-49, ll 10-35.
[55] T 2-72, ll 16-17.
It was put to Mr Betts, in cross-examination, that in light of Mr Lowen's level of income, and because he was not in a relationship, had no dependents and nobody with whom to distribute income, that a family trust arrangement was entirely inappropriate. Mr Betts' response was that it depended on what may happen in the future, for example, if Mr Lowen got married or had a de facto.[56] It was squarely put to Mr Betts that he did in fact advise Mr Lowen that he should put in place a family trust arrangement. Mr Betts denied this.[57]
[56] T 2-72, ll 3-11.
[57] T 2-72, ll 13-14.
While Mr Betts agreed that the advice he gave to Mr Lowen in July 2013 gave rise to the Lowen Family Trust ('LFT'), his evidence about what occurred in that meeting was vague. Mr Betts stated he did not have an actual recollection of the meeting with Mr Lowen.[58] Mr Lowen's recollection of the meeting was equally vague and he could not recall Mr Betts recommending a particular type of business structure to him.[59]
[58] T 2-70, l 37 to T 2-71, l 13.
[59] T 3-11, ll 7-16 and T 3-12, ll 4-9.
On 17 July 2013, the LFT was settled.[60] Mr Betts was the settlor and Mr Lowen was the trustee and beneficiary.[61] At that time, Mr Lowen was not married, not in a relationship and had no dependants.[62] An ABN was registered by Mr Betts for the Trustee of the LFT on 17 July 2013.[63] There is no dispute that the ABN was 36 747 810 428.
[60] Exhibit 12.
[61] Exhibit 12, page 10.
[62] T 3-10, ll 1-14.
[63] T 2-70, ll 1-2.
Exhibit 17 is an extract from the Australian Government, Australian Business Register, obtained by Mr Betts on 29 May 2018, which showed that ABN 36 747 810 428 was cancelled '… from 17 Jul 2013'.[64] On the face of Exhibit 17, because the ABN was last updated on 15 February 2018, it appears the cancellation occurred on 15 February 2018. There was no clear evidence as to who cancelled that ABN at that time or why it was done. Mr Lowen denied he instructed anyone to cancel that ABN for the Trustee of the LFT.[65]
[64] Exhibit 17.
[65] T 3-52, ll 19-20.
The evidence is that the Trustee for the LFT was never registered for the GST.[66]
[66] Exhibit 19.
The Regulator submits that the Commission should draw the inference that Mr Castle was the effective instigator of the creation of the LFT purely for the purposes of ensuring that Mr Lowen could not be regarded as being a deemed a 'worker' either for workers' compensation or tax purposes. It was submitted that this was because Mr Castle confirmed that of his former employees, Mr Lowen was the only one that he continued to contract with because he had a family trust.[67] The Regulator also points to the 'coincidence' of the timing of the decision of Mr Castle to only engage subcontractors and the creation of the LFT.[68]
[67] The Regulator's submissions, para. 42.
[68] The Regulator's submissions, para. 41.
TDE submits that the inference should not be drawn because Mr Lowen took the advice of his friend (Mr Castle) who was running a business that Mr Lowen was keen to emulate.[69]
[69] TDE's submissions, para. 253.
Whether the subject of the inference is a particular fact or state of affairs, where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference. However, they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought, then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise. [70]
[70] RSL Care Ltd v Wallace [2019] QCA 23, [20] (Bond J, Fraser JA at [1] and Phillippides JA at [2] agreeing).
I am not persuaded I should draw the inference pressed by the Regulator. There is no evidence that Mr Castle spoke to Mr Betts about Mr Lowen prior to the meeting. Mr Betts' evidence and Mr Lowen's evidence about the meeting is vague. There is no evidence that Mr Betts only advised Mr Lowen to establish a family trust. True, Mr Betts provided advice to Mr Lowen that gave rise to the LFT. However, that the settlement of the LFT occurred around the time of the change in TDE's method of using labour can equally be explained as being coincidental. The circumstances appearing in the evidence do not give rise to a reasonable and definite inference that Mr Castle was the effective instigator of the creation of the LFT for Mr Castle's own benefit.
Mr Lowen's scaffolding training and licence
Mr Castle stated that in March 2009, as a gesture and because Mr Lowen was a friend who he thought might like another ticket, he paid for Mr Lowen to undertake a course to obtain a scaffolding licence.[71]
[71] T 1-11, ll 5-30.
Mr Lowen said that it was Mr Castle who suggested they both get a scaffolding licence because they were doing a demolition job and a licence was required if scaffolding went above 4 metres.[72] This aspect of Mr Lowen's evidence generally accords with Mr Castle's evidence-in-chief.[73]
[72] T 3-9, ll 6-14.
[73] T 1-11, ll 14-21.
Mr Lowen's evidence was that, even though at that time he was employed full-time as a bricklayer, he was also working as a casual employee of TDE.[74] I prefer the evidence of Mr Lowen in respect of this matter. Mr Lowen was very clear about the reasons why Mr Castle wanted them both to do the scaffolding training. Mr Castle's evidence that it was a goodwill gesture to a friend seems to me to be implausible when Mr Lowen was working, albeit on a casual basis, for TDE at that time and his possession of a scaffolding licence would have been of benefit to TDE if it was doing work that required Mr Lowen to set up scaffolding above 4 metres in height.
[74] T 3-6, ll 15-20.
Mr Lowen's asbestos removal training and licence
Mr Castle's evidence was that a person needed to complete the relevant course before obtaining an asbestos removal licence.[75]
[75] T 1-15, ll 20-31.
Mr Castle's evidence was that in September 2013, even though Mr Lowen was not his employee, he paid for Mr Lowen to undertake the training course for him to obtain an asbestos removal licence because he was '… just helping him out.'[76] Mr Castle did the course at the same time and his evidence was that he also paid for a 'Jessie' to do the course at that same time because Jessie was an employee.[77] Mr Castle stated that Mr Lowen said he wanted to get an asbestos removal licence, that he explained to Mr Lowen what Mr Lowen needed to do to get a licence and that after Mr Lowen did the course, Mr Lowen worked with him to get the industry experience and then applied for his licence.[78]
[76] T 1-13, ll 37-38.
[77] T 1-13, ll 4-34.
[78] T 1-16, l 41 to T 1-17, l 24.
Mr Lowen's evidence was that Mr Castle said to him that the rules had been changed about removing asbestos and that he (Mr Lowen) was going to have to get a B class licence if he wanted to keep working for Mr Castle.[79] Mr Lowen agreed that 'Jessie' was an employee of TDE at that time and that Jessie also did the asbestos training.[80]
[79] T 3-7, ll 26-34.
[80] T 3-8, ll 1-9.
Mr Lowen completed the training on 13 September 2013[81] and, as Trustee for the LFT, was issued a Class B Asbestos Removal Licence on 1 August 2014.[82] Even though Mr Castle paid for the training, Mr Lowen paid for the asbestos removal licence.[83]
[81] Exhibit 1.
[82] Exhibit 20.
[83] T 3-16, ll 9-11.
TDE submitted that Mr Lowen knew exactly what he was doing when he went to Mr Betts, set up the LFT and paid for himself to obtain a Class B Asbestos removal licence held in the name of the LFT. TDE also referred to Mr Lowen's concession that his asbestos removal licence remains '… in the name of the Lowen Family Trust …' and that if a search was conducted of the Queensland Worksafe website, Mr Lowen and the LFT would be listed as licence holders.[84]
[84] TDE's submissions, para. 194.
Again, I prefer the evidence of Mr Lowen, compared to that of Mr Castle, about how it was that Mr Lowen came to do the asbestos removal training. Mr Lowen was cross‑examined at some length about the circumstances of him undertaking the asbestos removal training and the circumstances of him obtaining his Class B asbestos removal licence. Mr Lowen never wavered from his evidence-in-chief namely, that it was Mr Castle who came to him, said that the rules had been changed and that he (Mr Lowen) would be required to get an asbestos removal licence to continue working for Mr Castle.[85] Further, Mr Castle paid for 'Jessie', an employee of TDE at that time, to also undertake the asbestos removal training.
[85] T 3-33, l 43 to T 3-37, l 8.
In addition, there is no evidence that the asbestos licence was in Mr Lowen's contemplation when he saw Mr Betts in July 2013.[86]
Mr Suds Housewashing
[86] T 2-49, l 7 to T 2-50 l 35 and T 3-38, ll 3-10.
Mr Lowen's evidence was that he recommenced operating Mr Suds Housewashing in about 2014.[87]
[87] T 3-5, ll 8-17 and T 3-6, ll 36-39.
Mr Lowen stated that before he obtained the asbestos removal licence, the work performed by Mr Suds Housewashing was external house washing, roof washing, gutter cleaning, tree lopping and rubbish removal.[88] Mr Lowen stated that three quarters of the work he performed was house washing[89] and that after he had obtained the asbestos removal licence, there was no significant change in the split of the work Mr Suds Housewashing performed and, leaving aside any asbestos related work he performed for TDE, he performed around five or six asbestos jobs between 1 August 2014 and November 2017 for other parties.[90]
[88] T 3-15, ll 13-18.
[89] T 3-15, ll 20-26.
[90] T 3-16, ll 24-39.
Exhibit 16 is an extract from the Australian Securities and Investment Commission ('ASIC') data base, obtained by Mr Bett's office,[91] showing that the business name 'Mr Suds Housewashing' was registered with ASIC on 9 September 2015 and that the holder of the business name was the Trustee for LFT. The ABN of the Trustee of the LFT, 36 747 810 428, is listed.
[91] T 2-63, ll 31-34.
Exhibit 18 is an extract from the ASIC data base, obtained by the Regulator on 11 October 2018, that shows the business name 'Mr Suds Housewashing' was registered on 21 May 2014, renewed on 21 May 2015 and cancelled on 17 January 2016.
Exhibit 22 is a number of Google Internet searches, conducted by the Regulator on 11 October 2018, for the business called 'Mr Suds Housewashing'.[92] The search revealed pages from the homeimprovement2day.com.au website which described Mr Suds Housewashing as conducting gutter cleaning, tree lopping, tree pruning, window cleaning, rubbish removal and roof cleaning, but did not include bricklaying or asbestos removal. The ABN listed was that of the Trustee of the LFT.[93] In cross-examination, Mr Lowen agreed that this particular website was not a true snapshot of the services he offered and agreed that it had the ABN for the LFT (not his own ABN), that it referred to his suspended website and did not have asbestos removal or bricklaying as services offered.[94]
[92] T 3-38, ll 44-46.
[93] The ABN on this exhibit is missing the last three digits.
[94] T 3-40, ll 5-12.
Exhibit 23 contains pages from a website called 'hi pages' which advertised 'Mr Suds Housewashing'. Mr Lowen's evidence was that he started advertising on this website in 2015.[95] The pages from that website, downloaded on 14 June 2018, contained Mr Lowen's personal ABN (84 811 866 345) and referred to the Class B asbestos removal licence number for the Trustee for the LFT.[96] The extract provided, under the heading 'About Us';
At Mr.Suds Housewashing, I do pressure cleaning, asbestos removal, gutter cleaning, tree felling, bricklaying and more. I can handle both residential and commercial requirements.
Since getting into business about 15 years ago, I've been known in providing quality services at a fair price.[97]
[95] T 3-55, ll 21-25.
[96] Exhibit 23, fourth page.
[97] Exhibit 23, first page.
On the following page, more detailed information about the services was provided, including:
Ÿ Asbestos removal - inspections, site decontamination, small clean-ups, commercial and emergency removal'[98]
[98] Exhibit 23, second page.
Mr Castle's evidence seemed to be that TDE started using Mr Suds Housewashing in 2013 and that TDE used Mr Suds Housewashing for asbestos removal from 2014.[99]
[99] T 1-10, l 16 to T 1-11, l 1.
TDE and the Trustee for Lowen Family Trust
Mr Castle's evidence was that when he wanted to engage Mr Lowen as a contractor he would ask him if he was available for a job, that most of the time a verbal quote would be provided by Mr Lowen and that Mr Lowen would provide a written invoice after the job was completed.[100] Mr Castle stated that Mr Lowen would make the invoices out to TDE, give a description of the work performed, include the amount payable and that Mr Lowen would refer to the 'Lowen Family Trust' on the invoice.[101]
[100] T 1-18, ll 3-38.
[101] T 1-18, l 40 to T 1-19, l 4.
Exhibit 2 is a bundle of 87 handwritten invoices from the 'Lowen Family Trust', bearing ABN 36 747 810 428, to TDE between 6 September 2013 and 18 June 2016. By my count, 36 of those invoices concerned asbestos removal. Mr Castle stated that in respect of Exhibit 2, he would make the cheques out to 'Tony Lowen'.[102]
[102] T 1-22, ll 16-17.
Exhibit 3 is a bundle of 31 handwritten invoices from 'Tony Lowen', bearing ABN 84 811 866 345, to TDE between 1 July 2016 to 18 October 2017. By my count, five of those invoices concerned asbestos removal.
Mr Castle's evidence was that Mr Lowen never provided him with a written quote in relation to any of the work represented by the invoices in Exhibit 2 and Exhibit 3.[103] In cross-examination, Mr Castle denied the proposition that on no occasion did Mr Lowen provide him with a verbal quote for work.[104]
[103] T 1-63, ll 29-34.
[104] T 1-63, ll 36-37.
Exhibit 10 contains copies of four cheques drawn by Mr Castle made payable to 'Tony Lowen' bearing the dates 9 October 2015, 13 June 2016, 22 July 2017 and 19 September 2017. In cross-examination, Mr Castle stated that he made the cheques out to 'Tony Lowen', as opposed to the 'Lowen Family Trust' because it was an abbreviation.[105]
[105] T 1-62, ll 32-35.
Mr Castle's evidence-in-chief was that he only found out Mr Lowen was no longer using the ABN for the Trustee of the LFT in early 2018.[106] Mr Castle stated that he did not pick up on the change on the invoices provided by Mr Lowen because he did not really look at the ABN's and that Mr Lowen did not tell him he was no longer operating a trust to run his business.[107] Mr Castle stated that if Mr Lowen had told him that, the biggest implication would have been that the asbestos licence was in the name of the LFT and that, as a consequence, Mr Lowen would have cancelled his asbestos licence.[108]
[106] T 1-22, ll 25-30.
[107] T 1-22, l 40 to T 1-23, l 2.
[108] T 1-23, ll 4-13.

I find it difficult to accept that Mr Castle would not have noticed the difference in the change in the ABN number and the change in the name of the party on the invoices as contained in Exhibit 3. This is because, by 2017, Mr Castle was an experienced businessperson who had been regularly receiving invoices from Mr Lowen since 2013.
Mr Lowen's evidence-in-chief was that, in respect of the work represented by the invoices contained in Exhibit 2:
·he was either informed of upcoming work by Mr Castle when he was on a job or by telephone;
·he never provided Mr Castle with a written or verbal quote;
·Mr Castle always told him what he was going to be paying him; and
·in relation to the period in 2013, he was being paid $25.00 or $30.00 per hour.[109]
[109] T 3-14, l 7 to T 3-15, l 7.
Mr Lowen's further evidence-in-chief was that:
·he stopped utilising the LFT name and ABN in mid-2016;
·that change occurred after he saw the accountant, Mr Frank Moore;
·he saw Mr Moore because he had not filed a tax return since 2013 and that Mr Moore informed him he was a sole trader and there was no need to be in any family trust; [110] and
·he spoke to Mr Castle at Mr Castle's house after he saw Mr Moore and informed Mr Castle he would no longer be using his family trust.[111]
[110] T 3-19, ll 26-35.
[111] T 3-20, ll 3-19.
Mr Moore's evidence about his dealings with Mr Lowen was consistent with Mr Lowen's evidence.[112]
[112] T 3-57, l 36 to T 3-58, l 2.
The Regulator submits that as the invoices contained in Exhibit 3 refer to Mr Lowen personally, that there is no mention of either the LFT or Mr Suds Housewashing and that because Mr Lowen used his own ABN, that evidence corroborates Mr Lowen's evidence that towards the end of June 2016, on the advice of Mr Moore, he operated as a sole trader.[113]
[113] The Regulator's submissions, paras. 155-156.
Mr Lowen's further evidence-in-chief was that, in respect of the work represented by the invoices in Exhibit 3:
·he was informed of up-coming work by Mr Castle by telephone;
·he never provided Mr Castle with a written or verbal quote; and
·his hourly rate was $30.00 or $35.00 per hour.[114]
[114] T 3-21, ll 4-19.
Mr Castle was cross-examined about the amounts in the invoices contained in Exhibits 2 and 3. Mr Castle denied the rate negotiated between him and Mr Lowen, in respect of the invoices in Exhibit 2, was $30.00 an hour.[115] It was suggested to Mr Castle that if the amounts in the invoices contained in Exhibit 2 were divided by 30, that usually comes up with either a whole number or a half or quarter number. Mr Castle stated he did not know what algorithm Mr Lowen used to come up with the total for his services but that he did not have an arrangement with Mr Lowen for an hourly rate payment. Mr Castle denied that in 2017 the arrangement with Mr Lowen was that he would be paid $35.00 per hour.[116]
[115] T 1-63, ll 39-43.
[116] T 1-64, ll 1-9.
The Regulator submits that the invoices in Exhibits 2 and 3 can be neatly divided by either 25, 30 or 35 which is indicative of them reflecting an hourly rate, which is consistent with the evidence of Mr Lowen.[117] TDE submits the fact the invoices are divisible by those amounts reflects that Mr Lowen used an hourly rate to calculate the amount in charge of his work.[118]
[117] The Regulator's submissions, para. 157.
[118] TDE's submissions, para. 237.
By way of example, the first and second invoices in Exhibit 2, for work done in 2013, if divided by $25.00 results in whole numbers[119] and the last two invoices for work done in June 2016, if divided by $30.00, results in whole or half numbers.[120]
[119] In Exhibit 2, the first invoice is for rubbish removal at 84 Alderley Street for $725.00 which, divided by 25, equals 29. The second invoice is for removing roof tiles at 84 Alderley Street for $850.00 which, divided by 25, equals 34.
[120] In Exhibit 2, the second last invoice is for asbestos removal at TGS for $825.00 which, divided by 30, equals 27.5. The last invoice is for site cleaning at Hodgsonvale for $510.00 which, divided by 30, equals 17.
Similarly, by way of example, the first and second invoices in Exhibit 3, for work done in July 2016, if divided by $30.00, results in whole or half numbers[121] and the last two invoices for work done in September and October 2017, if divided by $35.00, results in whole numbers.[122]
[121] In Exhibit 3, the first invoice is for asbestos removal at 865 Greenwattle Street for $300.00 which, divided by 30, equals 10. The second invoice is for a site clean at 685 Greenwattle Street for $525.00 which, divided by 30, equals 17.5.
[122] In Exhibit 3, the second last invoice is for a yard clean at Carroll Street for $280.00 which divided by 35 equals 8. The last invoice is for asbestos removal at 39 Vacy Street for $385.00 which divided by 35 equals 11.
The Regulator also drew attention to Exhibit 4 which is an extract from Mr Castle's diary of 9 September 2017 which concerned his quote for a job at the Glennie School ('the School') at 39 Vacy Street, Toowoomba. Mr Castle wrote 'Asbestos Removal-Tony $385' as part of a total amount of $5,335.00 including, it would appear, GST. Mr Lowen did provide an invoice for that work - it is the last invoice in Exhibit 3 - and was for the amount of $385.00.
Mr Castle's evidence was that the School had rung him, wanted a quote to knock down a timber home next to the School, in coming to the total amount he wrote in his diary he made some phone calls to some subcontractors and that, in relation to the $385.00 next to Mr Lowen's name, he stated that he would have made a phone call to Mr Lowen explaining how much asbestos was there and asking roughly for a price.[123]
[123] T 1-26, l 31 to T 1-27, l 11.
In cross-examination, Mr Castle said he could not remember when his phone call to Mr Lowen occurred or where he was at the time it occurred.[124] It was put to Mr Castle that a person could not give him a quote to do work without the person actually going to the site and seeing what was involved. Mr Castle's response was that: 'I'd tell them that it'd be approximately 30 square meters of asbestos removal'.[125] Mr Castle denied that what he had written in Exhibit 4 was what he was going to pay Mr Lowen for that job and he denied that there was no verbal quote from Mr Lowen.[126]
[124] T 1-68, ll 9-29.
[125] T 1-68, ll 31-36.
[126] T 1-68, ll 37-42.
The Regulator submits that the Commission should draw the inference from this evidence that Mr Castle set out how much he would pay Mr Lowen in respect of the work to be undertaken at the School, which is consistent with the evidence of Mr Lowen.[127]
[127] The Regulator's submissions, para. 160.
TDE submits that this evidence is consistent with Mr Castle obtaining a quote for a job and it shows that Mr Castle noted that Mr Lowen would charge $385.00 for his work on that job.[128]
[128] TDE's submissions, para. 239.
In respect of this dispute between the parties, I prefer the evidence of Mr Castle. There are a number of reasons for this.
First, it seems unlikely to me that Mr Lowen would agree to perform work for TDE on the basis of what Mr Castle told him he would be paid. This is because the amount determined by Mr Castle may bear no reasonable resemblance to the work Mr Lowen would be required to perform for a particular job. It seems more plausible that Mr Castle would outline for Mr Lowen what the job was, what was entailed and then Mr Lowen would then provide a quote for him to do that work.
In the same way, it seems more plausible that Mr Castle would prepare a quote for a client by seeking quotes from the other persons or subcontractors TDE required to complete the job. Such a conclusion is consistent with what Mr Castle wrote in his diary for the quote for the Glennie School job. That is, he obtained quotes from the other persons he needed for TDE to complete the job and then calculated TDE's quote to be provided to the School.
Secondly, having regard to Mr Castle's evidence about the way he calculated TDE's quote for the School job, it seems plausible and practical that Mr Castle would give a description to Mr Lowen of the work required to be done, by estimating how much asbestos was involved, so that Mr Lowen could give Mr Castle a quote.

Thirdly, the amounts in the invoices provided by Mr Lowen to TDE are not expressly referable to a specific number of hours worked. The amounts are expressly referrable to particular tasks or jobs that Mr Lowen had completed. For example, the first invoice in Exhibit 2, issued in September 2013, was for 'Rubbish removal at 84 Alderley Street' for a total of $725.00. The last invoice in Exhibit 3, issued on 18 October 2017, was for 'Asbestos removal at 39 Vacy' for a total of $385.00. On the face of the invoices, the amounts were payable on completion of the tasks performed by Mr Lowen as referred to in the invoices. This is more consistent with Mr Lowen providing a quote to complete a particular task for which he sought payment upon completion of the task.

While mathematically the amounts in the invoices can be divided by 25, 30 or 35 with the result being, in many cases, whole numbers, the facts are that the amounts in the invoices are not, on their face, calculated by reference to the number of hours that Mr Lowen actually worked on a particular job for TDE or by any express reference to a specific hourly rate.
The Taxable Payments Annual Reports
Exhibits 13 and 15 are the Taxable Payments Annual Reports ('TPARs') to the ATO, for the years 2015 and 2017, for the 'Castle Family Trust'. Exhibit 14 is the TPAR for 2016 which refers to the 'Trustee for the Castle Family Trust'. The TPARs were generated by Mr Betts and set out the details of the contractors to whom the payer - which was in fact TDE - made payments and the gross amounts paid.[129] Mr Betts' evidence was that the TPARs were generated from information received from his firm's clients which include the contractors' expenses and income and sometimes included actual invoices.[130]

[129] T 2-60, l 43 to T 2-61, l 20.

[130] T 2-72, ll 35-43.

For the 2015 TPAR, under the heading 'Business name' the LFT is listed together with the ABN for the Trustee of the LFT.[131]

[131] Exhibit 13, the second page 2.

For the 2016 TPAR, 'Tony Lowen' is listed under the heading 'Individual's name or family name (person's name as shown on invoice)' together with the ABN for the Trustee of the LFT.[132]

[132] Exhibit 14, the first page 3.

For the 2017 TPAR, 'Tony Lowen' is listed under the heading 'Individual's name or family name (person's name as shown on invoice)' but with Mr Lowen's personal ABN.[133] None of the TPARs refer to Mr Suds Housewashing.

[133] Exhibit 15, the third page 3.

Mr Betts' evidence-in-chief about these differences was that his office probably made an error[134] and that he did not know the ABN for Tony Lowen's business had changed until 2018 when he was told by Mr Castle.[135]

[134] T 2-62, ll 40-47.

[135] T 2-63, ll 1-4.

Mr Betts was cross-examined about Exhibit 15, being the 2017 TPAR which referred to 'Tony Lowen' and to Mr Lowen's personal ABN. Mr Betts stated that the signature on the 2017 TPAR was the partner in his firm and he denied that it would have been apparent to somebody in his firm on or before 28 August 2017 (the date the 2017 TPAR was to be lodged) that Mr Lowen was in fact using a different entity to that which had been recorded in the previous TPARs.[136] The partner in Mr Betts' firm who prepared and signed the TPARs did not give evidence.

[136] T 2-76, l1 24-45.

The Regulator submits that Exhibit 15 is consistent with the evidence of Mr Lowen that there had been a change in the business arrangements between him and TDE and that, from 1 July 2016, Mr Lowen was trading as a sole trader.[137]

[137] The Regulator's submissions, para. 185.

TDE submits that it is entirely believable that Mr Betts (and Mr Castle) did not notice that the ABN used by Mr Lowen changed in mid-2016.[138]

[138] TDE's submissions, para. 254.

I do not accept that the partner in Mr Betts' accountancy firm would not notice the difference in the change in the ABN numbers in the TPARs. This is because:
·the information used for the TPARs was supplied by TDE;
·the same partner prepared and signed the 2015, 2016 and 2017 TPARs;[139]
·the purpose of the TPAR was to report, to the ATO, the details of TDE's contractors and the gross payments it made to them and the partner who prepared the TPARs obviously had some professional responsibility to check the TPARs for accuracy as is apparent from the declaration signed by the partner on the TPARs; and
·Mr Betts stated that his firm did take care to check the ABNs.[140]
[139] T 2-73, ll 31-32 and T 2-76, ll 28-31. The signatures on the 2015 and 2017 TPARs are the same as on the 2016 TPAR.
[140] T 2-76, l 47 to T 2-77, l 2.
However, for the reasons which I give later, in my view, the change represented in the 2017 TPAR and the change in the way Mr Lowen identified himself in the invoices he supplied to Mr Castle as set out in Exhibit 3 are not as significant as pressed by the Regulator.

The contract between TDE and Mr Lowen for the work at the Cunnamulla house
The contract with the State of Queensland for work to be performed by TDE

Exhibit 5 is an extract from Mr Castle's diary for Saturday, 2 September 2017. It sets out the costings Mr Castle wrote down for the job for TDE to demolish the house at Cunnamulla. The costings included the cost of the hygienist, Paroo Council dump fees, asbestos dump fees, fuel, the cost of a plumber and the costs of meals and accommodation. Next to the word 'TONY' is written '$3000 INC HIS ACCOMMODATION (WE PAY MEALS)'.

Mr Castle stated that he obtained the information, recorded in Exhibit 5, by making phone calls to the Shire Council, to Mr Lowen and to the local plumber. He also made a phone call for the meals and accommodation cost.[141]

[141] T 1-27, ll 37-46.

On 12 November 2017, TDE made an offer to the State of Queensland to demolish and remove the Cunnamulla house, located at 4 Beardmore Street, Cunnamulla. The contract price offered was $44,000.00 (incl GST).[142] TDE's offer was accepted. The Cunnamulla house was a low set house that had been damaged by a fire and contained asbestos. To remove the asbestos, TDE required the use of an excavator which in turn required TDE to suppress dust and required an occupational hygienist to monitor the air.[143]
[142] Exhibit 7.
[143] T 1-32, ll 30-40.

The contract between TDE and Mr Lowen for the work to be performed by Mr Lowen

TDE and the Regulator agree that on or about 2 September 2017, an oral contract was entered into between TDE and Mr Lowen for Mr Lowen to undertake work for TDE at the Cunnamulla house and at the St George property.[144]

[144] TDE's contentions, para. 38 and the Regulator's contentions, para. 29.

Mr Castle stated that he spoke to Mr Lowen, explained to him what had to be done and that Mr Lowen asked him approximately how long the job would take, to which Mr Castle stated a day travelling out and back and five days work. Mr Castle stated that he told Mr Lowen he needed a quote from him and that Mr Lowen said he would come out there for $3,000.00 and that he (Mr Lowen) would also pay his accommodation out of that money.[145]

[145] T 1-34, l 30 to T 1-35, l 8.

Mr Castle stated that Mr Lowen came up with the figure of $3,000.00.[146]

[146] T 1-35, l 9.

Mr Castle also stated that:
·he booked the accommodation for Mr Lowen because he was the principal contractor and he liked to make arrangements;[147]
·he drove Mr Lowen out in his (Ms Castle's) vehicle and that he paid for the petrol;[148]
·while the State of Queensland engaged the hygienist, he engaged all the other contractors, namely the truck drivers and the plumber and that the truck drivers drove their trucks to the Cunnamulla house;[149]
·he paid for Mr Lowen's accommodation because Mr Lowen (because of his injury) was not there to pay for it when he checked out of the hotel;[150] and
·he did not pay Mr Lowen anything for his work on the Cunnamulla house because contractors do not get paid unless they complete the task.[151]
[147] T 1-35, l 29 to T 1-35, l 47.
[148] T 1-36, ll 1-14.
[149] T 1-36, l 16 to T 1-37, l 16.
[150] T 1-51, ll 21-24.
[151] T 1-51, ll 26-30.
Mr Lowen's evidence was that:
·around three months before 20 November 2017, Mr Castle first mentioned the job at Cunnamulla and possibly the job in St George and that later Mr Castle rang him and told him that he had definitely got those jobs and asked Mr Lowen if he was interested because all Mr Lowen would really be doing would be hosing down for a week;[152] and
·about 3 weeks before 20 November 2017, they spoke on the phone and:
-       Mr Castle said that he would pay Mr Lowen $3,000.00 to go out there for the week, in response to which Mr Lowen said words to the effect that Mr Castle was '… getting a bit generous in your old age';[153]
-       Mr Castle then said: 'It's all good, you know, we just put it in the - work it into the quote';[154]and
-       Mr Castle said: 'I need to pay something like that, I'll be sledging youse. That's the sort of money you'd be earning if you were in town here, you know, doing your house working and whatever.'[155]
[152] T 3-23, ll 8-37.
[153] T 3-23, ll 39-45.
[154] T 3-23, ll 45-46.
[155] T 3-24, ll 5-8.
Mr Lowen denied that he provided Mr Castle with a verbal quote that he would charge $3,000.00 for that work[156] and denied that he said to Mr Castle that he would pay for his own accommodation.[157]

[156] T 3-24, ll 12-14.

[157] T 3-43, l 32.

I prefer Mr Castle's evidence about how the amount between him, on behalf of TDE, and Mr Lowen was agreed for Mr Lowen to perform the work at the Cunnamulla house and at St George. There are a number of reasons for this.

First, it seems to me to be more plausible that, in practice, Mr Castle would have given Mr Lowen a description of the work that would be required and that Mr Lowen would have provided a quote to Mr Castle so that TDE could have made its offer to the State of Queensland for the removal of the house at Cunnamulla.

Secondly, having regard to Exhibit 5, which is an extract from Mr Castle's diary for 2 September 2017, Mr Castle's entries in the diary are consistent with his evidence that upon him being asked to provide a quote for a job, he would contact the other persons he needed for TDE to complete the job and obtain quotes from them so as to be able to provide a quote to his client.

Finally, Mr Lowen's evidence-in-chief was that in respect of the work he undertook for Mr Castle and TDE, he was only ever referred to as a labourer and he did not think he was anything other than a labourer because Mr Castle needed '… other sets of hands.'[158] The sum of $3,000.00 was large and it seems unlikely that Mr Castle would unilaterally agree to pay Mr Lowen that sum for just performing labouring work at the Cunnamulla house and at St George for a week.
[158] T 3-22, ll 7-13.
The indicia the subject of submissions by the parties
Did TDE exercise control or have the right to exercise control over the work performed by Mr Lowen at the Cunnamulla house? [159]

[159] TDE's submissions, paras. 289-293 and the Regulator's submissions, pages 35-36.

Mr Castle's evidence was that:
·he needed Mr Lowen to perform site decontamination for him at the Cunnamulla house which involves dust suppression for the first stage of the demolition, and after that to then remove small fragments of asbestos that remained in the soil after the excavator had removed 100 mm of soil off the top of the site;[160]
·TDE prepared an Asbestos Removal Control Plan ('ARCP')[161] for the Cunnamulla house demolition which sets out, amongst other things, the safe work methods to be adopted for the demolition,[162] which was signed by him, the two truck drivers he engaged for the demolition (Mr Clive Kowald and Mr Alan Delaney) and Mr Lowen[163];
·there was a toolbox safety talk prior to commencing work on 20 November 2017;[164]
·he did give direction to the truck driver and to Mr Lowen as to where they were to stand when Mr Castle was operating the excavator, but, apart from sounding the horn in the excavator to get Mr Lowen's attention, he could not give him any directions when he was in the cab of the excavator;[165] and
·before the accident, the task Mr Lowen was performing was dust suppression which he had done many times previously for Mr Castle;[166]
[160] T 1-35, ll 11-19.
[161] Exhibit 8.
[162] T 1-42, ll 1-26.
[163] T 1-46, ll 13-15.
[164] T 1-46, ll 20-33.
[165] T 1-48, l 27 to T 1-49, l 2.
[166] T 1-48, ll 17-20.

Consequently, Mr Lowen was not a worker within the meaning of s 11(2) of the Act.
Conclusion

In this appeal, the onus was on TDE to prove on the balance of probabilities that Mr Lowen was not a worker within the meaning of s 11 of the Act.

For the reasons given above:
·Mr Lowen was not a worker within the meaning of s 11(1) of the Act; and
·Mr Lowen's circumstances did not meet those as described in sch 2, pt 1, s 3(a) of the Act and, as a consequence, Mr Lowen was not a worker within the meaning of s 11(2) of the Act.

I allow the appeal.

Pursuant to s 558(1)(c) of the Act, the decision appealed against is set aside and another decision is substituted, namely:
·that Mr Lowen was not a worker within the meaning of s 11 of the Act; and
·that Mr Lowen's claim for workers' compensation dated 22 January 2018 is rejected.

The Regulator must pay TDE's costs of the appeal.

12-35 Payment to employee

An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as an employee (whether of that or another entity).

[2020] QIRC 30

27 February 2020