Tozlok v Youssef - [2023] NSWPICPD 58

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Tozlok v Youssef [2023] NSWPICPD 58
APPELLANT:	Abdul Kader Tozlok
FIRST RESPONDENT:	Salah Said Youssef
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (icare)
THIRD RESPONDENT:	Adelson’s Building and Bathroom Renovation Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-W1815/22
PRESIDENTIAL MEMBER:	Acting President Michael Snell
DATE OF APPEAL DECISION:	27 September 2023
ORDERS MADE ON APPEAL:	1. To the extent to which it is necessary, leave is granted to the appellant pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to bring an interlocutory appeal.
2. The appellant’s application to extend time for the bringing of the appeal in this matter is refused. 3. The orders in the Certificate of Determination dated 8 August 2022 are confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Application to extend time to appeal, presence of ‘exceptional circumstances’ – Bryce v Department of Corrective Services [2009] NSWCA 188; alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; inferences pursuant to Jones v Dunkel – discussion of Payne v Parker [1976] 1 NSWLR 191
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms L Charleston, solicitor
Charleston Lawyers
First Respondent:
Mr G Young, counsel
MGL Lawyers
Second and Third Respondents:
Mr G Dolan, solicitor
HWL Ebsworth Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr G Whiffin
DATE OF MEMBER’S DECISION:	8 August 2022

INTRODUCTION AND BACKGROUND

Salah Youssef (Mr Youssef) was carrying out tiling work at premises in Oatley on 6 November 2018. As he was cutting a large tile it shattered and lacerated his left elbow. He states that he has not worked since. Mr Youssef alleges he was employed by Abdul Tozlok (Mr Tozlok, the appellant) at the time. Mr Tozlok conceded he was uninsured for the purposes of the workers compensation legislation. Mr Youssef made a claim on the Nominal Insurer under the ‘Uninsured Liabilities’ provisions of the legislation. The Nominal Insurer denied liability on the basis that Mr Youssef was not a worker or a deemed worker (pursuant to cl 2 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)). [1]
[1] Youssef v Workers Compensation Nominal Insurer (icare) [2022] NSWPIC 445 (reasons), [1]–[3].
Mr Youssef subsequently claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) from the Nominal Insurer in respect of his left arm, liability for which was denied on 29 June 2021. He then made a claim for lump sum compensation against Adelson’s Building and Bathroom Renovation Pty Ltd (Adelson’s). This was on the basis of s 20 of the 1987 Act.[2] The relief claimed in the current proceedings is for $87,910 in respect of 31 per cent whole person impairment in respect of the left upper extremity and scarring.
[2] Reasons, [4]–[6], [9]–[10].
The matter was listed for hearing on 24 June 2022. Mr G Young appeared for Mr Youssef, Mr Carney appeared for Mr Tozlok and Mr Baker appeared for Adelson’s and the Nominal Insurer. There were no applications to call oral evidence. All counsel addressed. The Member helpfully described the issues in dispute in the following terms:
“(a) whether [Mr Youssef] was a worker (as defined in s 4 of the 1998 Act) when he was injured on 6 November 2018;

(b) if not, whether [Mr Youssef] was a deemed worker (as defined in cl 2 of schedule 1 of the 1998 Act) when he was injured on 6 November 2018, and

(c) if the answer to (a) or (b) is in the affirmative, whether there was in existence a contract between [Mr Tozlok] and [Adelson’s] sufficient to make [Adelson’s] liable for [Mr Youssef’s] injury pursuant to s 20 of the 1987 Act.

All the respondents have confirmed that should the answer to (a) or (b) be found to be in the affirmative, there would be no dispute that [Mr Youssef] sustained an injury on 6 November 2018, in order to allow his s 66 claim to be referred to medical assessment with the Commission.”[3]
[3] Reasons, [7].

The Commission issued a Certificate of Determination dated 8 August 2022, accompanied by 32 pages of reasons. The Member found that Mr Youssef was not a worker within the meaning of s 4 of the 1987 Act, but was a deemed worker as defined in cl 2 of Sch 1 to the 1998 Act, when he suffered injury on 6 November 2018. The Member found Mr Tozlok was uninsured for the purposes of the legislation. The Member found there was a contract between Mr Tozlok and Adelson’s that satisfied s 20 of the 1987 Act and Adelson’s was liable to pay compensation as if Mr Youssef were immediately employed by Adelson’s. The Member remitted the matter to the President for referral to a Medical Assessor to assess whole person impairment in respect of the left upper extremity and scarring.[4]
[4] Reasons, [154]–[158].

THE MEMBER’S REASONS

The Member referred to Mr Youssef’s statements. Mr Youssef in his first statement, dated 19 February 2019, said he had known Mr Tozlok socially for about ten years. He said Mr Tozlok offered him work as a labourer/tiler, there was no written contract, he started working for Mr Tozlok in June 2018, and he was paid in cash at a rate of $220 per day. He said he worked 25 to 40 hours per week. He said he worked under the direction of Mr Tozlok and only did work given to him by Mr Tozlok. He said he did cutting and grouting, other qualified tilers arranged by Mr Tozlok laid the tiles. Mr Youssef said he had only ever worked as an employee, he did not do jobs on his own. When he worked for Mr Tozlok he did not work for anyone else. He said he did not advertise, he possessed an ABN but he was not registered for GST. He said that while working for Mr Tozlok he did not work for anyone else.[5]
[5] Reasons, [14]–[20].
The Member referred to Mr Youssef’s statement dated 13 August 2019. Mr Youssef said he had worked for ‘Oasis Tiling’ from about 2015 to 31 January 2018, was unemployed to about 1 July 2018, and then worked for Mr Tozlok. He had not advertised on job seeking websites or used his ABN.[6] The Member referred to Mr Youssef’s statement dated 24 November 2020, which clarified deposits in his joint banking account with his wife.[7]
[6] Reasons, [24].
[7] Reasons, [25].
The Member referred to Mr Youssef’s statement dated 3 November 2021. The Member said much of this statement repeated information from Mr Youssef’s first statement. Mr Youssef said that his English was not particularly strong, he conversed with Mr Tozlok in Arabic, his English was not good enough for him to converse with head contractors. He said that over the previous 4 to 5 years whenever he worked for a tiler he always did so exclusively, not simultaneously with other tilers. Mr Youssef said that grouting was not a specialist trade. He said he was not contacted directly, or paid, by head contractors. He said when he worked for Mr Tozlok he did so exclusively, working for 3 to 4 days per week, and he was the only person providing assistance. He did not wear a uniform, Mr Tozlok provided tools and materials. Mr Youssef denied telling Mr Tozlok that he had his own insurances and denied advertising his services on Gumtree.[8]
[8] Reasons, [27].
The Member referred to statements from a number of lay witnesses, Messrs Hello, Breis, and Badra. Mr Hello stated that the tiling industry in western Sydney was “small and we all hear about what is happening with other tilers, which jobs they are doing and who they are hiring”.[9] Mr Badra stated that he had known Mr Youssef to work as an employee and not a contractor. He remembered a conversation in which Mr Youssef said he did not want the responsibility of getting contracts for himself and did not know enough English.[10]
[9] Reasons, [30]–[33].
[10] Reasons, [29]–[38].
The Member said it is clear “from the medical evidence that [Mr Youssef] sustained a significant injury on 6 November 2018, which does not seem to be disputed by any of the parties”.[11]
[11] Reasons, [39].
The Member summarised the evidence in Mr Tozlok’s case. Mr Tozlok relied on his own statement dated 3 November 2021. He said Mr Youssef occasionally worked for him if he was busy and also worked for other tilers. “He could and did work simultaneously for other persons on the rare occasions that he worked for me”. Mr Tozlok said Mr Youssef was at liberty to refuse any work offered by himself or other contractors. There was no written contract. He paid Mr Youssef between $180 and $200 per day. He said Mr Youssef wanted to be paid in cash without deduction of taxation. Mr Tozlok did not pay holiday pay or superannuation. Mr Tozlok said Mr Youssef was at liberty to subcontract the work he was given, although Mr Tozlok did not know of him doing this. Mr Tozlok described Mr Youssef showing him a “little cut” on 6 November 2018 and taking the alleged worker for treatment at a medical centre.[12]
[12] Reasons, [40]–[46].
The Member referred to the cases of the other parties, both of which effectively relied on an unsigned statement of Mr Tozlok, taken by an investigator. It referred to Mr Youssef performing work for other tilers on a sub-contract basis, as a “grouter/helper”, which Mr Tozlok knew about as the other tilers were his friends. There was also reference to a statement from Mr Haider, the sole director of Adelson’s. Adelson’s provided “residential and commercial building services”. Adelson’s had a number of sub-contract businesses it utilised, including Mr Tozlok. Mr Haider said Adelson’s had no control over who Mr Tozlok engaged to perform work. Mr Haider said he would not recognise Mr Youssef if he saw him walking down the street.[13]
[13] Reasons, [52]–[57].
The Member summarised the parties’ submissions.[14]
[14] Reasons, [59]–[95].
The Member considered whether Mr Youssef had succeeded in proving that he was a ‘worker’ within the meaning of s 4 of the 1998 Act. He referred to Stevens v Brodribb Sawmilling Co Pty Ltd,[15] applied by Keating P in Digby v Hyspec Construction & Roofing Pty Ltd.[16] He referred to the discussion of Stevens in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd,[17] and ZG Operations Australia Pty Limited v Jamsek.[18] He said the relationship between Mr Youssef and Mr Tozlok was “anything but clear based upon the significantly different statement evidence provided by each of them”. The Member said he was unable to accept in full the statement evidence of either of them. Both sets of statement evidence were self-serving and contained inconsistencies. He said there were “credit issues” with both Mr Youssef and Mr Tozlok.[19]
[15] [1986] HCA 1; 160 CLR 16 (Stevens).
[16] [2018] NSWWCCPD 39.
[17] [2022] HCA 1.
[18] [2022] HCA 2.
[19] Reasons, [99]–[104].
The Member said there was a “useful” statement from Mr Haidar and “some weight” could be attached to the statements of Messrs Hello, Breis and Badra. He said he would have expected statement evidence from Mr Youssef’s wife in relation to the work Mr Youssef did for Mr Tozlok. He would have expected statement evidence from Mr Tozlok’s friends in the western Sydney tiling industry, who Mr Tozlok alleges Mr Youssef worked for at the same time Mr Youssef worked for Mr Tozlok. The Member said he would have expected statement evidence from Mr Youssef and Mr Tozlok regarding the sites where they worked together. Mr Tozlok said this occurred on rare occasions, Mr Youssef said there were around 40 such sites. Mr Youssef and Mr Tozlok each submitted the other was not specific enough, which the Member accepted. The Member said the lack of specific evidence on this topic suggested that both were exaggerating. The Member also noted that Mr Tozlok presumably kept some business records.[20]
[20] Reasons, [105]–[106].
The Member said that he accepted the submission by the Nominal Insurer and Adelson’s that the payment method described by Mr Youssef ($220 per day regardless of the hours worked and payment every two to three weeks) was unlikely in an employment relationship. The Member drew a “negative credit inference” regarding Mr Youssef on the basis of the produced banking records. The records revealed no deposits of moneys paid from Mr Tozlok, but there were ongoing Centrelink Newstart and pension payments. He said the only available conclusion was that Mr Youssef was not receiving the alleged payments from Mr Tozlok, or alternatively he did not tell Centrelink about the payments. The Member said that if the Centrelink payments related to Mr Youssef’s wife he would have expected evidence from her about this. If any moneys from Mr Tozlok were deposited into other accounts he would have expected evidence of these to be available.[21]
[21] Reasons, [107]–[108].
The Member said he did not place much weight on the submissions from the Nominal Insurer and Adelson’s that Mr Youssef overplayed his difficulties with the English language. It was clear that Arabic remained his first language.[22]
[22] Reasons, [109].
The Member referred to various inconsistencies between the evidence of Mr Youssef, Mr Haider and Mr Tozlok. Mr Haider stated that he only dealt with Mr Tozlok. How the work was then carried out was up to Mr Tozlok. This contrasted with Mr Tozlok’s evidence that head contractors such as Mr Haider would deal with him (Mr Tozlok). The Member drew a credit inference adverse to Mr Tozlok, regarding his attempt to have Mr Haider submit a fraudulent workers compensation claim on the basis that Mr Youssef was employed by Adelson’s at the time he was injured. The Member said the evidence did not indicate Mr Youssef requested that this be done and this credit inference did not extend to Mr Youssef. The Member referred to a discrepancy between Mr Tozlok’s signed and unsigned statements, regarding whether he used workers other than Mr Youssef. The Member referred to Mr Tozlok’s statement regarding the work performed by Mr Youssef on the job where he was injured. Mr Tozlok said Mr Youssef was contracted only to perform tiling work, not grouting. This was directly contradicted by Mr Haidar’s statement.[23]
[23] Reasons, [110]–[113].
The Member noted there was no written contract. He referred to the criteria described in Steven. The Member said the following seemed to be accepted by both Mr Youssef and Mr Tozlok:
(a)    Mr Youssef was not paid sick pay or other leave entitlements;
(b)    Mr Youssef was not paid superannuation;
(c)    Mr Youssef did not issue invoices to Mr Tozlok;
(d)    Mr Youssef was paid in cash;
(e)    Mr Youssef did not use his ABN;
(f)    Mr Tozlok often drove Mr Youssef to work sites;
(g)    there was no written contract;
(h)    Mr Youssef provided his own protective clothing and safety shoes;
(i)    Mr Tozlok found the work;
(j)    no-one reported to Mr Youssef while he was performing the work, and
(k)    Mr Youssef did not arrange for others to do the work on his behalf.
The Member said that not a lot turned on the slight discrepancy between Mr Youssef and Mr Tozlok regarding Mr Youssef’s pay rate ($220 per day as opposed to $180–$200 per day). There was a conflict of evidence regarding taxation. Mr Youssef said Mr Tozlok agreed to pay necessary taxation separately. Mr Tozlok said Mr Youssef was to be responsible for payment of Mr Youssef’s taxation. Mr Youssef said necessary tools and equipment were provided by Mr Tozlok, which Mr Tozlok contradicted (save for where materials were provided by the homeowner). The Member said this involved a direct conflict of evidence.[24]
[24] Reasons, [114]–[117].
Mr Youssef said he was to be covered by Mr Tozlok’s workers compensation insurance, which Mr Tozlok contradicts. The Member noted Mr Tozlok’s evidence that Mr Youssef did not want the first medical centre he attended after the accident to know it was a work accident. The Member said this was not contradicted by Mr Youssef when he put on evidence in response to Mr Tozlok’s statement. The Member inferred that, at least as at the date of accident, Mr Youssef did not believe he was covered by workers compensation insurance.[25]
[25] Reasons, [118].
The Member accepted that Mr Youssef worked exclusively for Mr Tozlok between June 2018 and the date of accident. The Member said Mr Tozlok failed to provide any contrary evidence from other tilers, notwithstanding the evidence that the western Sydney tiling industry was close knit and “we all hear about what is happening with other tilers”. The Member noted the Nominal Insurer had engaged investigators. The only independent evidence regarding Mr Youssef’s “tendency to work exclusively” was from Mr Hello, who said Mr Youssef worked exclusively for him in about 2016 and 2017. The Member described this as “helpful” although it related to a period prior to June 2018.[26]
[26] Reasons, [119].
The Member said Mr Youssef was “adamant” he had never run his own business or used his ABN and said he did not use it while working with Mr Tozlok. He denied advertising and there was no documentary evidence inconsistent with this. He had required the assistance of Ability Options in the past to obtain work with Oasis Tiling. Mr Hello said Mr Youssef lacked the ability to run his own business. Mr Badra recalled a conversation in which Mr Youssef said he did not want the responsibility of getting contracts for himself. The Member said it was clear the Nominal Insurer had investigated Mr Youssef’s “potential business activities” and the documentation revealed no such activities. The Member said he was satisfied Mr Youssef was not conducting his own business.[27]
[27] Reasons, [120]–[122].
The Member dealt with the right of control. Mr Youssef said he did not do anything unless directed by Mr Tozlok. Mr Tozlok said he had no control over how Mr Youssef worked. The Member noted Mr Youssef performed the “cutting and grouting work” and Mr Tozlok performed the “tiling work”. The Member said that both Mr Youssef and Mr Tozlok agreed Mr Tozlok was required to guarantee and warrant the work performed by Mr Youssef. This was “standard in business” given Mr Tozlok was the head contractor. Mr Youssef and Mr Tozlok agreed that Mr Youssef was “never disciplined” and no mistakes by Mr Youssef needed to be rectified. The Member said the statement evidence of Mr Youssef and Mr Tozlok were both “equally self-serving and exaggerated” and there were limits to the extent to which their statement evidence could be accepted.[28]
[28] Reasons, [120]–[128].
The Member noted Mr Youssef carried the onus of proving he was a ‘worker’. The Member referred to a summary of authorities dealing with the discharge of an onus, in the Presidential decision of Drca v KAB Seating Systems Pty Ltd.[29] The Member concluded he was not persuaded that Mr Youssef was a ‘worker’. He gave reasons for this. He was not satisfied Mr Tozlok exercised “substantial control” over Mr Youssef’s work. He was not given entitlements such as holiday pay and superannuation. He “must have been suspicious” regarding the taxation arrangements and the “haphazard payment arrangements in general”. The Member referred to Stevens and Personnel Contracting. The Member said he was not satisfied, on the totality of the relationship, that it was a relationship of worker and employer.[30]
[29] [2015] NSWWCCPD 10.
[30] Reasons, [130]–[134].
The Member then moved to the allegation that the relationship was one of ‘deemed worker’ within the meaning of cl 2 of Sch 1 to the 1998 Act. The Member said this involved proof of the following elements:
(a)    payment for the work to be performed under the contract must exceed $10;
(b)    the work to be performed under the contract must not be incidental to a trade or business regularly carried out by the contractor (in this case, [Mr Youssef]) in his own name or under a business or firm name, and
(c)    the contractor (in this case, [Mr Youssef]) must not sub-let the contract nor employ any worker under the contract.

The Member said the first and third of these elements had been rightly conceded by the Nominal Insurer and Adelson’s. The Member said the statement of Mr Tozlok agreed that Mr Youssef was paid more than $10 per day and that as far as he knew Mr Youssef did not give any of the work provided to him by Mr Tozlok to anyone else. Mr Youssef’s statement evidence was also to this effect. Messrs Hello and Badra confirmed Mr Youssef’s history of working exclusively and not conducting his own business. The Member referred to his doubts about the acceptability of the statement evidence of both Mr Youssef and Mr Tozlok. The Member noted the corroborative evidence from Messrs Hello and Badra regarding whether Mr Youssef conducted his own business. None of the alleged employer interests had any direct evidence of Mr Youssef working for others during the period from June 2018 to the date of accident. The only “head contractor” who provided evidence did not know Mr Youssef. The Member said:
“There has been simply no evidence presented that [Mr Youssef] was either working for others or conducting his own business during the period between June 2018 and the date of his accident, other than the suspicions, inferences and suggestions (but not knowledge) set out in [Mr Tozlok’s] statement evidence.”[31]
[31] Reasons, [143].
The Member said he was persuaded to the requisite standard that Mr Youssef was not carrying out work incidental to his own trade or business during the relevant period. The Member made a formal finding:
“I therefore find that when [Mr Youssef] was injured on 6 November 2018, he was a deemed worker (pursuant to cl 2 of schedule 1 of the 1998 Act), and his injury arose out of or in the course of his deemed employment, pursuant to s 4 of the 1987 Act.”[32]
[32] Reasons, [135]–[145].
The Member then dealt with the issue of whether s 20 of the 1987 Act had application. He quoted the section. He identified two elements necessary to prove this matter:
(a) Adelson’s, in the course of or for the purposes of its trade or business, must have contracted with Mr Tozlok for the execution of the whole or any part of the work that Adelson’s had undertaken, and
(b) Mr Tozlok must not possess workers compensation insurance at the time when Mr Youssef received his injury.[33]
[33] Reasons, [146]–[147].
The Member noted there was no dispute regarding the absence of insurance on Mr Tozlok’s behalf at the relevant time. He said Adelson’s conceded that it retained the services of Mr Tozlok to perform tiling work at the Oatley premises where Mr Youssef was injured. The Member noted this was consistent with Mr Tozlok’s statement evidence and that of Mr Haidar. Mr Haidar remembered discussing the job with the owner of the premises. The Member made a finding:
“In the circumstances, I conclude that the owner of the premises had contracted with [Adelson’s] (a provider of residential and commercial building services across the greater Sydney area specialising in complete bathroom renovations, plumbing, electrical, carpentry, painting and waterproofing, according to Mr Haidar’s statement – see page 6 of the second and third respondents’ [Application to Admit Late Documents]) for the relevant tiling work to be undertaken, and [Adelson’s] (in the course of its business) had then contracted with [Mr Tozlok] to perform that work.”[34]
[34] Reasons, [152].
The Member concluded that the elements of s 20 were made out and Adelson’s were responsible to compensate Mr Youssef in relation to the injury.[35]
[35] Reasons, [148]–[153].
The Member noted the only compensation claimed in the proceedings was pursuant to s 66 of the 1987 Act. He referred the matter to the President for referral to a Medical Assessor to assess whole person impairment in respect of the left upper extremity and scarring.[36]
[36] Reasons, [158]–[161].

GROUNDS OF APPEAL

The appellant raises a single ground of appeal:
“The Member erred in finding that the First Respondent [Mr Youssef] was a ‘deemed worker’ within the meaning of cl 2 of Sch 1 of the [1998 Act].”

Appellant’s submissions

The appellant submits the Member should have found that Mr Youssef was relevantly carrying out work incidental to a trade or business regularly carried on by him in his own name or under a business or firm name, pursuant to cl 2 of Sch 1 to the 1998 Act. The appellant submits the Member made adverse credit findings against both the appellant and Mr Youssef due to points of contradiction in their statements. The Member was not satisfied that a contract of service existed. The Member found that cl 2 of Sch 1 was engaged. The appellant submits the Member gave undue weight to Mr Youssef’s claim that he only worked for one employer at any one time. The appellant submits:
“Central to this finding was [the Member’s] factual conclusion that Youssef worked exclusively for Tozlok, rather than as a tiler/labourer engaged in entirely self-directed, ad hoc employment.”[37]
[37] Appellant’s submissions, [19]–[20], [23].
The appellant divides its submissions on the single ground into two parts, ‘Submission 1’ and ‘Submission 2’. Under ‘Submission 1’ it identifies the following points:
(a)    The Member gave undue weight to Mr Youssef’s statement that he worked for only one employer at any one time. This “deserved more scepticism”. Mr Youssef said that he worked for Mr Tozlok for three to four days per week. This was consistent with Mr Tozlok’s evidence that Mr Youssef worked for other tilers as an unqualified grouter or helper and had worked for Mr Tozlok in that capacity in the past.[38]
(b)    The Member gave undue weight to the evidence of Mr Hello, who said Mr Youssef had worked for him exclusively in the past as a general labourer in 2016 and 2017. This was undeserving of any weight.[39]
(c)    The Member gave insufficient weight to the evidence of Mr Breis. Mr Breis said that at an earlier time he and Mr Youssef both worked for Oasis Tiling and he (Mr Breis) took days off to work for Mr Tozlok. Although Mr Breis did not state that Mr Youssef also did this, “his evidence raises doubt on the exclusivity of [Mr] Youssef’s alleged employment”.[40]
(d)    The Member should not have drawn an adverse inference against Mr Tozlok for failing to provide statements from fellow tilers to the effect that Mr Youssef also worked for them. Mr Youssef carried the onus.[41]
(e)    Mr Youssef obtained his job with Oasis Tiling, in 2017, through an employment agency. It was a casual position as a tiler. This is said to contradict Mr Hello’s assertion that Mr Youssef could only work as a general labourer at that time.[42]
(f)    The appellant submits there was “insufficient evidence to support exclusivity of employment between June and November 2018”, so there arises a greater likelihood of ad hoc self-employment on Mr Youssef’s part.[43]
[38] Appellant’s submissions, [25].
[39] Appellant’s submissions, [26].
[40] Appellant’s submissions, [27].
[41] Appellant’s submissions, [28].
[42] Appellant’s submissions, [29].
[43] Appellant’s submissions, [30].
Under ‘Submission 2’ the appellant submits the Member erred in not finding that Mr Youssef was a contractor carrying on his own business. The appellant identifies the following points:
(a)    The only bank statements produced by Mr Youssef were for a joint account operated by him and his wife, rather than a personal account. There was documentary evidence that Mr Youssef had previously been paid by cheque by Oasis Tiling. Mr Youssef’s assertions about income could have been supported by his personal bank statements. A negative inference should be drawn from the non-production of these.[44]
(b)    The Member gave insufficient weight to the fact that Mr Youssef was registered for GST and had an active ABN. There was an inference that “at some point he intended to be a contractor”. There was no explanation of why he registered for GST in the first place or whether he had ever submitted business activity statements. The appellant submits there should have been an adverse inference drawn because of Mr Youssef’s failure to produce his taxation return for the relevant year to show his income and deductions and to determine the extent of his business activities.[45]
(c)    The Member gave insufficient weight to the Centrelink payments recorded in the joint bank account of Mr Youssef and his wife, which were unexplained. Mr Youssef said he was unemployed from February 2018 to June 2018, he did not indicate he was in receipt of Centrelink payments as at November 2018 when he was injured. The statement of Mr Youssef’s wife does not address the issue. “[T]he Centrelink transactions may not favour Youssef’s case.” It is submitted that, in the absence of comment by Mr Youssef’s wife, it could be inferred the payments were Mr Youssef’s, an indication he did not regard himself as being employed.[46]
(d)    There was evidence that Mr Youssef earned income from trading in scrap metal, which might suggest he was carrying out some work incidental to his own business. The appellant submits Mr Youssef did not act in a way consistent with a person who considered himself to be employed. He agreed to a daily rate of pay and did not discuss holiday pay or superannuation.[47]
[44] Appellant’s submissions, [32].
[45] Appellant’s submissions, [33]–[34].
[46] Appellant’s submissions, [35].
[47] Appellant’s submissions, [36].

Mr Youssef’s submissions

Mr Youssef notes that the appellant does not challenge the finding that Mr Tozlok’s evidence was also tainted by self-interest. Mr Youssef submits the appellant raised suspicion of the possibility that Mr Youssef worked concurrently elsewhere. There was no evidence of this supported by bank records or lay evidence. Mr Youssef’s submissions take issue with the description of Mr Hello as a “fellow tiler”. Mr Youssef submits that he (Mr Youssef) was not a tiler, but the appellant was, part of the “tiling community” in the western suburbs. Mr Youssef submits the Member gave some weight to Mr Hello’s evidence but did not find it determinative of whether Mr Youssef worked exclusively for the appellant at the relevant time.[48]
[48] Mr Youssef’s submissions, [2]–[5b].
Mr Youssef submits Mr Breis worked for Oasis Tiling at the same time he (Mr Youssef) did. Mr Breis also worked for the appellant on his days off from Oasis Tiling. Mr Youssef, by contrast, worked exclusively for Oasis Tiling during that period of employment. Mr Breis’s evidence supports Mr Youssef’s evidence that he only worked for one entity at a time. Mr Youssef was not a qualified tiler. Mr Youssef’s submissions say that the appellant relied on the “tiling community” to find tilers and labourers. There is no explanation why he did not seek confirmation from this community for evidence to support his assertion that Mr Youssef also worked for others in the months prior to his accident. Mr Youssef submits there is no inconsistency in the fact that he gained employment with Oasis Tiling though an agency, and subsequently his deemed employment with the appellant was found through the tiling community. The relevance of how this earlier employment was arranged is described as “unclear”.[49]
[49] Mr Youssef’s submissions, [5(b)–(e)].
Mr Youssef’s submissions respond to a second ground of appeal, headed “Credit of the First Respondent Worker”. The appeal, as sealed, contains only the single ground described above, but supported by ‘Submission 1’ and ‘Submission 2’. The subject matter of the second ground, to which Mr Youssef’s submissions respond, is similar to the subject matter of ‘Submission 2’ in the appeal now before the Commission. Mr Youssef’s submissions on this topic raise the following points:
(a)    There is no evidence of other bank accounts in Mr Youssef’s name. The appellant, which issued a Notice to Produce, did not insist on production of other bank accounts or seek an adjournment to gain access to other accounts. In the absence of evidence of other accounts in Mr Youssef’s name, no adverse inference may be drawn.[50]
(b)    Mr Youssef’s registration for GST is not determinative of whether he worked exclusively for the appellant in the months before the accident. If Mr Youssef was once a contractor this does not mean that he could never be a deemed worker. The Member correctly placed little significance on the Centrelink deposits. It was unclear whether they related to Mr Youssef or his wife. At worst, there may be a suggestion of improper receipt of Centrelink benefits. None of this is inconsistent with the finding that Mr Youssef worked exclusively for the appellant in the months prior to the accident.[51]
(c)    Mr Youssef submits there is no evidence that he regularly carried out a trade or scrap metal business in his own name or a business name. He submits the joint bank accounts did not support an inference contrary to the finding of his exclusive work arrangements. Mr Youssef’s wife was present at the hearing, the appellant did not seek to cross-examine her. Mr Youssef submits the absence of discussion regarding holiday pay or superannuation, and the setting of a daily rate, was only relevant to the issue of ‘worker’, not deemed worker.[52]
[50] Mr Youssef’s submissions, [7]–[10].
[51] Mr Youssef’s submissions, [11]–[13].
[52] Mr Youssef’s submissions, [14]–[17].

THE POSITION OF THE NOMINAL INSURER AND ADELSON’S

Messrs HWL Ebsworth wrote to the Commission by email dated 20 October 2022 advising that they acted for both the Nominal Insurer and Adelson’s. Those parties neither opposed nor joined with the appeal and agreed to be bound by the decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

INTERLOCUTORY APPEAL

The Member decided a liability issue going to whether Mr Youssef was a worker or a deemed worker. He then remitted the matter to the President for referral to a Medical Assessor to assess permanent impairment. Both parties submit that the appeal is not interlocutory.[53] Decisions of this nature have frequently been held to be interlocutory for the purposes of s 352(3A) of the 1998 Act, on the basis they do not finally dispose of the rights of the parties.[54] The parties have not fully addressed the issue of whether the appeal is interlocutory and whether, if it is, leave should be granted for the appeal to proceed. In Campbelltown Tennis Club Ltd v Lee Keating P, dealing with an interlocutory appeal in similar circumstances, considered it was “desirable for the proper and effective determination of the dispute” that ‘liability’ issues be decided before a medical assessment was held as it may avoid an unnecessary referral.[55] I will adopt the same approach.
[53] Appellant’s submissions, [14], Mr Youssef’s submissions, [2.6].
[54] Licul v Corney [1976] HCA 6; 180 CLR 213, P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87.
[55] [2013] NSWWCCPD 50, [22].
To the extent to which it is necessary, I grant leave to the appellant pursuant to s 352(3A) of the 1998 Act to bring the appeal.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met. The appeal is out of time and the appellant seeks to extend time pursuant to s 352(4)(b) of the 1998 Act.

The extension of time

Section 352(4) of the 1998 Act provides:
“The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Rule 133A of the Personal Injury Commission Rules 2021 relevantly provides:
“133A Extension of time for making certain applications
(1)     This rule specifies the procedure for determining a period of time, longer than the statutory period, within which 1 of the following (a relevant application) may be made—
(a)an appeal under the 1998 Act, section 352,
…
Note—
The listed provisions specify that a relevant application must be made within the statutory period or a longer period determined or allowed in accordance with these Rules.
(2)     A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.
(3)     An extension application—
(a)must be made at the same time as the relevant application to which it relates, and
(b)must be in the approved form, and
(c)must include full details of the arguments relied on in favour of granting the order, and
(d)is taken to form part of the relevant application for the purposes of the requirements relating to service under rules 123 and 129.
(4)     The extension application must be decided by the following (the decision-maker)—
(a)for an appeal under the 1998 Act, section 352—a presidential member,
(b)otherwise—the President.
(5)     The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.
(6)     In this rule—
statutory period means—
(a)for the 1998 Act—the period specified in section 352(4)(a), and
…”.
In Allen v Roads and Maritime Services[56] Roche DP, applying the decision in Gallo v Dawson,[57] summarised the following as matters to be considered in an application to extend time:
“(a)    the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)     upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”[58]
[56] [2015] NSWWCCPD 39 (Allen).
[57] [1990] HCA 30; 93 ALR 479; 64 ALJR 458.
[58] Allen, [31].
The Court of Appeal, in Bryce v Department of Corrective Services,[59] dealt with the requirement of ‘exceptional circumstances’ in the equivalent provision in subr (11) of r 16.2 of the former Workers Compensation Commission Rules. Allsop P (as his Honour then was) said that the phrase was “a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction”.[60]
[59] [2009] NSWCA 188 (Bryce).
[60] Bryce, [8].

The parties’ submissions on the extension of time

The appellant says the appeal was initially lodged on 5 September 2022, the last day when it could be lodged within time. It was rejected for “numerous procedural and formatting issues”. The appellant submits he failed to address the monetary threshold and the interlocutory issue as it was perceived they did not apply in the circumstances. As no money was awarded in the Certificate of Determination it was believed the monetary threshold did not need to be addressed. The appellant submits he indicated in the printed Appeal Application that this was not an appeal from an interlocutory decision but omitted to attach a separate submission to this effect due to oversight. The appellant submits there were also “formatting issues”, such as page numbering and page referencing, that have been rectified.

The appellant submits the appeal is meritorious. It would be an injustice if it were not considered on its merits. The appellant refers to s 43 of the 2020 Act, regard should be had to the substantial merits without regard to technicalities or legal form.
Mr Youssef makes the following submissions dealing with the extension of time:
(a)    History of the proceedings: Mr Youssef has medical support for a significant permanent impairment of 31%. The late appeal delays his assessment by a Medical Assessor and delays a potential claim for work injury damages.
(b)    Conduct of the parties: The appeal as initially lodged did not comply with the legislation and practices of the Commission.
(c)    Nature of the litigation: Whether Mr Youssef worked exclusively for the appellant was at the heart of the dispute.
(d)    Consequences of the grant or refusal of the extension: It would be against the interests of justice to grant the extension as it has little prospect of success. The delay has already caused hardship and suffering.
(e)    Prospects of success: The appeal has little prospect of success.
(f)    Respondent’s right, after the expiry of time, to rely on the decision made: Mr Youssef has relied on Centrelink payments for the past four years and has no prospect of returning to any form of work. He has no formal qualifications and poor English.

Consideration of the extension application

The appellant has adequately explained how the appeal came to be lodged out of time. The period of the delay is short.
Mr Youssef has not, save for the delay inherent in the appeal process, identified prejudice should the extension be made. Should the extension not be granted, the appellant will lose whatever rights of appeal he had.
There has not been conduct on the part of either party that would militate for or against granting the extension.
It is a factor that, the period for appeal having expired, Mr Youssef is otherwise entitled to rely on the finding in his favour.
Although it is not a precondition to the granting of an extension the Commission, consistent with Bryce, is obliged to have regard to whether ‘exceptional circumstances’ are present. Campbell JA, in Yacoub v Pilkington (Australia) Ltd,[61] dealt with the phrase in the context of the Uniform Civil Procedure Rules 2005. In a passage which has been frequently applied to extensions of time to appeal, in the Commission and in the former Workers Compensation Commission of New South Wales, Campbell JA said:
“(a)    Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered.
(b)     Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors.
(c)     Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.
(d)     In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision.
(e)     Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.”[62] (excluding references)
[61] [2007] NSWCA 290 (Yacoub).
[62] Yacoub, [66].
The appeal was not lodged in time due to procedural irregularities that led to it being rejected. It has been frequently held that where an appeal is out of time due to inadvertence or legal error this does not constitute ‘exceptional circumstances’.[63] I cannot see anything in the circumstances of the current matter that would constitute ‘special circumstances’. This does not preclude an extension of time but the absence of ‘exceptional circumstances’ is a matter I am required to consider in exercising the discretion.
[63] See Department of Education & Training v Mekhail [2006] NSWWCCPD 1, [19], Department of Corrective Services v Buxton [2007] NSWWCCPD 55, [26], Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now deregistered) [2009] NSWWCCPD 64, [27], Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [26], Secretary, Department of Communities and Justice v Galea [2021] NSWWCCPD 1.
It is necessary to consider the merits of the appeal. It is governed by s 352(5) of the 1998 Act which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[64] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[65] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[66]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    A [Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[67]
[64] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[65] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[66] [1996] HCA 30; 140 ALR 227.
[67] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[68]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[69]
[68] [2020] NSWCA 54 (Hill).
[69] Hill, [20].
The appellant describes the Member’s finding, that Mr Youssef worked exclusively for Mr Tozlok, as central to the finding that the evidence did not support a conclusion that Mr Youssef was an independent contractor. The appellant submitted this evidence should have been considered more sceptically. The basis of this submission is summarised at [35] above. The fundamental submission is that there was insufficient evidence to support exclusivity of employment between June and November 2018. There was direct evidence from Mr Youssef that proved this matter. There was no direct evidence to the contrary. The appellant attacks the fact finding on the basis of the weight that the Member gave to various aspects of the evidence. It is submitted that the evidence of Mr Hello was given too much weight and that of Mr Breis was given insufficient weight. In Shellharbour City Council v Rigby Beazley JA (as her Honour then was) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[70]
[70] [2006] NSWCA 308, [144].
The Member’s fact finding did not indicate that some error must have been involved. The Member set out a detailed summary of the evidence from Mr Youssef,[71] Mr Hello,[72] Mr Breis,[73] Mr Badra,[74] Mr Tozlok[75] and Mr Haider.[76] He summarised the parties’ submissions.
[71] Reasons, [14]–[27].
[72] Reasons, [30]–[33].
[73] Reasons, [34]–[36].
[74] Reasons, [37]–[38].
[75] Reasons, [40]–[51].
[76] Reasons, [53]–[56].
The Member, after referring to his reservations about the evidence of both Mr Youssef and the appellant, referred to the presence of “some corroborative evidence (from Messrs Hello and Badra) confirming [Mr Youssef’s] history of working exclusively and also confirming [Mr Youssef’s] history of not conducting his own business”.[77] The Member noted the concession by all of the respondents to the proceedings that there was “no positive or direct evidence from them that [Mr Youssef] was working for others” between June 2018 and the date of accident. He noted this was in circumstances where the Nominal Insurer had “engaged investigators to look into [Mr Youssef’s] alleged business activities”. The Member noted the documentation obtained by the investigators did “not reveal any business activities of [Mr Youssef]”.[78] The Member described his finding that Mr Youssef was not performing work incidental to his own trade or business as being on the “totality of the evidence”.[79] Mr Youssef’s evidence was not devoid of all weight. It was appropriate that the Member have regard to Mr Youssef’s evidence to this effect as well as to the absence of any positive evidence to the contrary from Mr Youssef’s opponents. Clearly the Member approached this issue with an awareness of the onus carried by Mr Youssef. The appellant has not identified error in this aspect of the Member’s findings.
[77] Reasons, [140].
[78] Reasons, [121].
[79] Reasons, [138]–[144].
The appellant has not established error in how the Member dealt with the evidence before him. More specifically, he has not established error within the meaning of s 352(5) of the 1998 Act.
The appellant refers at [35] above to a possibility that Mr Youssef was carrying on a business trading in scrap metal. This could not assist the appellant. The elements requiring proof pursuant to Sch 1, cl 2 are described by the Court of Appeal in Scerri v Cahill as proof that the putative deemed worker establish:
“1.     that he was party to a contract with the respondent to perform work;
2.      that work exceeds $10 in value;
3.      that work is not incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name; and
4.      that the applicant has neither sublet the contract nor employed workers in the performance of it.”[80]
[80] (1995) 14 NSWCCR 389, 399.
There is no suggestion that Mr Youssef “regularly carried on” a business trading in scrap metal. Even if he did, there is no realistic basis on which his work cutting and grouting tiles on a domestic building site would be incidental to a business trading in scrap metal. This submission could not succeed.
The appellant submits that the Member should not have drawn “an adverse inference” against Mr Tozlok for failing to provide statements from fellow tilers, as it was Mr Youssef who carried the onus. In RHG Mortgage Ltd v Ianni McColl JA (Emmett JA and Sackville AJA agreeing) said:
“The rule in Jones v Dunkel is that the ‘unexplained failure by a party ... to call witnesses ... may in appropriate circumstances lead to an inference that the uncalled evidence ... would not have assisted that party’s case’. … Any ‘explanation’ such as unavailability or absence of recollection for the failure to call the witness must be established by evidence. The ‘rule cannot be applied to the non-calling of a [non-party] witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness’.”[81] (excluding references)
[81] [2015] NSWCA 56 (Ianni), [75].
Her Honour also quoted the following from the reasons of Glass JA in Payne v Parker,[82] a passage described by her Honour as being “accepted as correctly stating the relevant principles … when one party rather than the other would be expected to call a missing witness”:[83]
“(6) Whether the [Jones v Dunkel] principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary.” (excluding references).
[82] [1976] 1 NSWLR 191 (Payne), 201–202.
[83] Ianni, [78].
The appellant submits it was inappropriate for the Member to draw such an inference in circumstances where the appellant carried the relevant onus. Whilst the inference might be more readily drawn against a party in circumstances where he or she carried the relevant onus (see Ho v Powell[84]) it is apparent from the passage quoted immediately above that there are many circumstances where such an inference may be properly available. The Member’s finding that the appellant had proved the necessary elements of Sch 1, cl 2 was open on the evidence. It did not depend on the drawing of an inference pursuant to Jones v Dunkel.
[84] [2001] NSWCA 168, [15].
The appellant cannot succeed in establishing error within the meaning of s 352(5) of the 1998 Act. The appeal has no reasonable prospects of success.
The appellant cannot demonstrate the presence of ‘exceptional circumstances’. More critically, the appeal does not have reasonable prospects of success. If time were extended the appeal would in any event fail on its merits. The appropriate order is that the application to extend time for the bringing of the appeal should be refused.

DECISION

The appellant’s application to extend time for the bringing of an appeal in this matter is refused.
The orders in the Certificate of Determination dated 8 August 2022 are confirmed.

Michael Snell
ACTING PRESIDENT

27 September 2023