Vella v Endeavour Energy
[2012] NSWWCCPD 44
•22 August 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Vella v Endeavour Energy [2012] NSWWCCPD 44 | ||||
| APPELLANT: | Adam Vella | ||||
| RESPONDENT: | Endeavour Energy | ||||
| INSURER: | Integral Energy Australia | ||||
| FILE NUMBER: | A1-97/12 | ||||
| ARBITRATOR: | Mr M Snell | ||||
| DATE OF ARBITRATOR’S DECISION: | 11 May 2012 | ||||
| DATE OF APPEAL DECISION: | 22 August 2012 | ||||
| SUBJECT MATTER OF DECISION: | Sch 1 cls 1 and 2 of the Workplace Injury Management and Workers Compensation Act 1998; onus of proof that contractor did not employ any worker; standard of proof of a negative; procedural fairness | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Turner Freeman Lawyers | |||
| Respondent: | Bartier Perry Lawyers | ||||
ORDERS MADE ON APPEAL: | 1. The award found in Certificate of Determination dated 11 May 2012 is confirmed. 2. No order as to costs of the appeal. | ||||
BACKGROUND
Mr Adam Vella had been engaged by Endeavour Energy (the respondent) and its predecessors to perform work as a backhoe operator/excavator/labourer between a date in 1973 and 26 March 2010. In May 2010 notice of a claim for lump sum compensation in respect of alleged hearing loss was given to the respondent on behalf of Mr Vella by his solicitors.
That claim, which had been made pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act), was declined by the respondent. Notice of that declinature was given by the respondent as required by the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to Mr Vella’s solicitors by letter dated 12 April 2011. The respondent disputed that Mr Vella was a worker within the meaning of s 4 of the 1998 Act and also disputed that he was a “deemed” worker as provided by cl 2(1) of Sch 1 to the 1998 Act.
It was not in dispute that at all material times Mr Vella and his wife were in partnership, trading as Adam and Kathleen Vella. The business partnership is described as “earthmoving services” in partnership tax returns which are before the Commission. Income generated by the provision to the respondent of Mr Vella’s services and earthmoving equipment was treated as partnership income for taxation purposes.
The dispute concerning Mr Vella’s entitlement to compensation came before the Commission upon the filing of an Application to Resolve a Dispute (the Application) in January 2012. That Application came before Senior Arbitrator Snell for conciliation/arbitration on 3 May 2012. The matter proceeded to arbitration at which time Mr Vella abandoned his earlier allegation that he was a worker in terms of the legislation, but pressed his allegation that, on the facts, he was to be taken to be a worker as provided by cl 2(1) of Sch 1.
The following matters were not in dispute at the hearing:
(a) Mr Vella’s last day of work with the respondent was 26 March 2010;
(b) work performed by Mr Vella was “noisy employment”, that is employment to the nature of which the relevant injury was due, and
(c) should Mr Vella be found to be entitled to the benefits claimed, the deemed date of injury was 26 March 2010.
The quantum of any entitlement to lump sums and quantum of s 60 expenses claimed remained in dispute at the hearing. The Senior Arbitrator observed that, should a finding be made in Mr Vella’s favour concerning the application of Sch 1, there would be a need to refer the matter to an Approved Medical Specialist for assessment of any hearing loss.
The Senior Arbitrator reserved his decision upon conclusion of the hearing. A Certificate of Determination accompanied by a Statement of Reasons (Reasons) was issued on 11 May 2012. Following a detailed summary of the evidence, submissions, and relevant authority the Senior Arbitrator determined that Mr Vella had failed to establish that he should be taken to be a worker. An award was entered in favour of the respondent.
ISSUES IN DISPUTE
The issues in dispute are whether the Senior Arbitrator erred:
(a) in determining that Mr Vella did not establish, on the balance of probabilities, that he did not employ any worker in the performance of the last contract with the respondent (ground (a)), and
(b) in not affording Mr Vella procedural fairness by deciding the dispute on an issue not previously raised by the respondent in either the s 74 notice, the Reply, or at the teleconference conducted by the Senior Arbitrator, that issue being “whether [Mr Vella] employed any worker in the performance of the contract, without affording [Mr Vella] the opportunity to call further evidence in support [sic] of the issue and/or make submissions directly related to the issue” (ground (b)).
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.
THE ARBITRAL PROCEEDINGS
The proceedings before the Senior Arbitrator were recorded and a transcript (T) has been produced and made available to the parties.
It is convenient at this point to note the matters found by the Senior Arbitrator which are not in dispute on the appeal:
(a) that the work carried out by Mr Vella, as a contractor, was not work incidental to a trade or business regularly carried on by him, in his own name or under a business or firm name (at [35] of Reasons), and
(b) that the evidence established that “there was a series of short term contracts” between the respondent and Mr Vella and that the “deemed date of injury, 26 March 2010, occurred on the last day of a specific contract, being contract to carry out works at Chipping Norton, performed from 15 March 2010 to 26 March 2010 (the Chipping Norton contract)” (at [47] of Reasons).
The finding which is challenged on this appeal is the Senior Arbitrator’s conclusion that Mr Vella had failed to prove, as was required by the provisions of cl 2(1) of Sch 1, that he did not employ any worker in the performance of the Chipping Norton contract. A further challenge, as noted at [8(b)] above, concerns a suggested denial of procedural fairness. In the circumstances it is proposed to attempt a summary of the evidence and submissions relevant to the question of employment of “any worker” in terms of the relevant clause. The questions raised concerning the issue of procedural fairness are addressed in the course of discussion below.
Evidence and submissions before the Senior Arbitrator concerning employment of any worker
The evidence of Mr Vella relevant to this issue as found in his statutory declaration sworn 21 December 2011 is as follows:
“2. The start of my work with the respondent was in about 1972.
3. I had been employed as a mechanic and back hoe driver for Rob Shaw Earthmoving at Doonside, and at that time the respondent (then Prospect County Council) was hiring earthmoving machines from Rob Shaw Earthmoving. I was performing work for Rob Shaw Earthmoving with the council, and someone at the council told me that if I bought my own machine they would guarantee that I got jobs from the respondent.
4. So I bought a machine, and from that time (about 1973) onwards to 26 March 2010 I worked for the respondent in that capacity.
5. After about 1 year, on my accountant’s advice, my wife and I ran the business as a partnership.
6. My wife’s role was to do all the bookkeeping work. She also assisted if there was a breakdown to come to the work site with gear.
7. My son, David, who was living with us at home, also assisted from time to time with bringing gear if I needed it. He was unemployed and so we paid him about $5,000 per year to assist in that way if I needed him (refer to ‘Casual labour’ expenses in tax returns).
8. The last time David helped me was on 12 July 2009 when I had a flat tyre on the tipper truck. At that time I had been stood down from work. He helped me put the tyre on at home and took the old tyre away for me.
9. I never had any employees. I did all the work myself. I was the only person who operated my machines.”
The partnership tax returns (Adam and Kathleen Vella) being those in respect of the years ending 30 June 2007, 2008, 2009 and 2010 are in evidence. Deductions for casual labour are claimed in each of those returns being in the sum of $5,200, $6,000, $5,200 and $5,200 respectively.
Mr Vella’s submission that he was engaged by the respondent in “a series of contracts” was, as earlier noted, accepted by the Senior Arbitrator. It was accepted by counsel in the course of submissions that if there had been payment made for the labour of Mr Vella’s son during the Chipping Norton contract “then the section [sic, Sch 1 cl(2)(1)] would appear to exclude [Mr Vella] from the operation of the Act…” (at T30). However the argument advanced by Mr Vella was, as summarised by the Senior Arbitrator, that “even if there were payments made to the son for labour from time to time, the last such occasion on [Mr Vella’s] statement was July 2009 and that any such payments were in some way severable from the later contractual position” (at T14).
The argument advanced on behalf of the respondent concerning the issue of payment for casual labour was stated by counsel as recorded at T18:
“… the claim for casual labour in the income tax documents in the partnership return remains a claim for $5000 or thereabouts. So whether it’s accurate to say that the son last worked in July ’09 or not, the fact of the matter remains that according to the important document of the partnership taxation return casual labour was employed to that amount. Whether it’s the son or somebody else is not for you to determine but, in my submission, the evidence does not permit of any other conclusion other than that that claim for labour cost was part of the - was for labour employed by the business in the course of the work undertaken.”
In the course of later argument concerning that issue, it was put by the respondent’s counsel that:
“[Mr Vella] has not explained where [the sum paid in respect of casual labour] was paid other than for a few days paid to the son so there was – unless he’s told lies about his tax return, there was casual labour employed. For the rest of the period he hasn’t been able to produce evidence and hasn’t led evidence that there was no contractual – there was no casual labour during the period which he now seeks to rely on as a separate individual contract at Chipping Norton.” (at T27).
The Senior Arbitrator’s decision
The Senior Arbitrator recorded those matters which are noted at [5] above. Following a thorough summary of submissions put on behalf of each party, the Senior Arbitrator addressed the evidence and relevant authority, and made findings which I have noted at [13] above.
The Senior Arbitrator proceeded to consider the evidence concerning the employment of “any worker” during the performance of the relevant contract (the Chipping Norton contract) following which he noted the respondent’s submissions including the following:
“The applicant carried the onus of proof, including proof of the negative, that he did not employ any worker in the performance of the Chipping Norton contract: Scerri per Bainton A-JA at 399. If the evidence overall establishes [Mr Vella] probably employed a worker after 12 July 2009, but not that it was outside the period of the Chipping Norton contract (15 March 2010 to 26 March 2010), then [Mr Vella] has not discharged his onus, and should fail in his reliance on Schedule 1, clause 2.” (At [49] of Reasons)
The Senior Arbitrator observed that the evidence concerning employment of Mr Vella’s son was “sparse”. The evidence was that “[the son] was paid an annual sum of money, to assist from time to time as and when necessary”. An inference was drawn that:
“the payment was an annual one, in consideration of which [the son] agreed to make himself available throughout the year to assist with bringing gear, if the applicant required it. This is consistent with the brief description by the applicant of that employment arrangement. It is also more consistent with the quantum expended for casual labour during that financial year, than the applicant’s submission that the sum related only to work up to 12 July 2009.” (At [50] of Reasons)
The question as to whether Mr Vella had discharged the onus of proof concerning this issue was addressed by the Senior Arbitrator between [52] and [57] of Reasons. The state of the evidence was examined in light of the statement of Lord Mansfield in Blatch v Archer [1774] 1 Cowp 63 at 65 [98 ER 969 at 970] that:
“It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”
The Senior Arbitrator proceeded to consider that maxim in the light of discussion found in the judgment of Heydon J in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 286 ALR 501 (Hellicar). That discussion included an analysis of recent authorities concerning the standard of proof on the balance of probabilities in proceedings of the kind then being considered by the High Court. Following consideration of those matters raised by Heydon J, the Senior Arbitrator, before entry of the award in favour of the respondent, concluded (at [57]):
“[Mr Vella] carries the onus of proving a negative, that he did not employ any worker in performance of the Chipping Norton contract. On the limited evidence available going to that issue, and having regard to the above authorities going to the application of Blatch v Archer, I am not satisfied [Mr Vella] has discharged his onus in this regard. The evidence does not satisfactorily deal with the period of [the son’s] employment, and whether it extended into the time when the Chipping Norton contract was performed. It follows [Mr Vella] has not made out his case, that he was a deemed worker pursuant to Schedule 1, clause 2.”
SUBMISSIONS, DISCUSSION AND FINDINGS
Ground (a)
This Ground challenges the Senior Arbitrator’s finding that there had been a failure to “establish, on the balance of probabilities, that [Mr Vella] did not employ any worker in the performance of his last contract with the respondent (‘the Chipping Norton contract’)”. Submissions in support of this ground appear to expand and elaborate the matters complained of by suggesting, in the alternative, error in determining that Mr Vella “employed a worker in the performance of the Chipping Norton contract”. (at [9] of the appellant’s submissions).
The provision relied upon by Mr Vella is cl 2(1) of Sch 1 to the 1998 Act which provides:
“2 Other contractors
(1) Where a contract:
(a)to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b)(Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
The Senior Arbitrator approached the construction and application of the clause guided by the following matters as stated by Bainton A-JA (Kirby ACJ and Rolfe A-JA agreeing) in Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri):
“On its proper construction, clause 2 of Schedule 1 requires an applicant who relies on it to establish each of the ingredients, both positive and negative, which identify the relevant ‘work’.
What he must establish is:
1.that he was party to a contract with the respondent to perform work;
2.that work exceeds $10 in value;
3.that the work is not work 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.” (at 399).
In submissions Mr Vella appears to accept that the evidence adduced on his behalf concerning the question of employment of “any worker” was “reasonably brief”. It is put that the reason for the “brevity” of the evidence was that “the section 74 Notice and Reply had not raised the issue” (at [14] of Submissions). It is accepted by Mr Vella that the Notice did put in dispute the question whether he was a “deemed worker” within the meaning of the clause. It is important to note that this submission is directed to explaining, as was found by the Senior Arbitrator, the existence of “sparse” evidence concerning the issue. No reliance is placed by Mr Vella upon the provisions of s 289A of the 1998 Act as operating to prevent the Commission from hearing or otherwise dealing with the issue.
Argument advance by Mr Vella on this issue may be summarised as follows:
(a) the evidence, whilst “brief”, was sufficient;
(b) the respondent did not tender any evidence contradicting the evidence in Mr Vella’s case;
(c) there being a series of contracts, the issue was whether the appellant employed any worker in the performance of the Chipping Norton contract. It is put that such question was identified by the Senior Arbitrator at [48] of Reasons;
(d) evidence concerning the Chipping Norton contract is to be found in Mr Vella’s declaration sworn 21 December 2011 being that the last job was at Chipping Norton between 15 March 2010 and 26 March 2010 being upgrading work involving excavation;
(e) further evidence of that contract is found in tax invoices concerning the weeks commencing 14 March 2010 and 20 March 2010 which identify the machine as “excavator” and the operator as “A. Vella”;
(f) the documentary evidence is to be assessed having regard to Mr Vella’s evidence that, whilst “his son assisted from time to time and lastly on 12 July 2009”, he did all the work himself, being the only person who operated the machines;
(g) it is clear and un-contradicted that Mr Vella alone undertook the work in the performance of the Chipping Norton contract;
(h) Mr Vella’s evidence is corroborated by the evidence of Mrs Vella and that of his son, David;
(i) the arrangement concerning the son was that he was paid “about $5000 per annum at (sic, to) assist [Mr Vella] with bringing gear and the like” if needed. The evidence established that the last occasion such assistance was needed was on 12 July 2009. Such “arrangement does not equate to [Mr Vella] having employed any worker in the performance of the Chipping Norton contract”, and
(j) the son “being effectively ‘on call’ to assist if a need arose ... does not equate to [Mr Vella] employing the son in the performance of the Chipping Norton job”.
It is convenient to deal with the complaint, which is somewhat outside the bounds of this Ground, that the Senior Arbitrator erred in determining that Mr Vella employed a worker in the performance of the relevant contract. The statement made by the Senior Arbitrator relevant to this argument is to be found at [59] of Reasons:
“If I were required to decide the issue positively, on the available evidence, I would conclude on the probabilities that David was employed by the applicant throughout the 2009/2010 financial year (at least until the applicant’s engagement with the respondent came to an end in March 2010). This, of course, included the period of performance of the Chipping Norton contract.”
It may be seen that the Senior Arbitrator has indicated his view that, whilst no such finding was made nor required to be made for the proper application of the clause, if so required, the evidence would lead him to that positive conclusion. That observation is a demonstration by the Senior Arbitrator of his view as to the state of the evidence generally. Leaving aside the question as to whether it is proper to permit Mr Vella to raise this complaint on appeal, I reject any argument that the Senior Arbitrator’s evaluation of the evidence as demonstrated at [59] constitutes relevant error on his part.
With respect to the arguments earlier summarised, it is Mr Vella’s contention that the Senior Arbitrator has erred in finding that there had been a failure to establish a relevant fact, being that he did not employ any worker in performance of the contract. There being no direct evidence of that fact the criticism relates to a suggested failure to draw an inference.
It appears to be Mr Vella’s argument that the state of the evidence in his case, taking into account an absence of countervailing evidence in the respondent’s case, was such that a proper evaluation of that material should have led to an inference that Mr Vella had not employed any worker in performance of the relevant contract.
The Senior Arbitrator had found that there was a series of contracts, the last being the Chipping Norton job. There was a question, observed the Senior Arbitrator (at [48]), “whether [Mr Vella] employed any worker in the performance of [that job]”. However there is an exact statement made as to the question before him where it was said (at [52]):
“In dealing with whether [Mr Vella] has discharged his onus of establishing he did not employ any worker in performance of the Chipping Norton contract, regard should be had to [the maxim expounded by Lord Mansfield in Blatch]”.
As is made clear by the Senior Arbitrator in his Reasons, the fact in issue required proof by Mr Vella of a negative. It was Mr Vella who had the ability to adduce evidence relevant to the issue. I reject the suggestion made in submissions that the Senior Arbitrator has in some manner failed to take into account the absence of evidence adduced by the respondent. The reasons as expressed made it clear that the onus remained on Mr Vella. There is no basis, in my view, to argue that there was, in any sense, a shift to the respondent of an “evidentiary” onus.
The deficiencies in Mr Vella’s evidence on this issue are identified by the Senior Arbitrator where it was stated (at [50] and [51] of Reasons):
“... The clear inference is that the payment [of about $5000] was an annual one, in consideration of which [the son] agreed to make himself available throughout the year to assist with bringing gear, if the applicant required it. This is consistent with the brief description by the applicant of that employment arrangement. It is also more consistent with the quantum expended for casual labour during that financial year, than the applicant’s submission that the sum related only to work up to 12 July 2009.
The terms and periods of David’s employment with the applicant, and the basis of his remuneration, were matters within the knowledge of the applicant, his wife, and David. They were not matters within the respondent’s knowledge. The applicant put on multiple statements. David and the applicant’s wife each put on short statements corroborating the applicant. One would anticipate direct evidence could have been available, going to conversations and the like, relevant to the terms of David’s employment.”
The Senior Arbitrator’s approach to the state of the evidence, including the deficiencies noted above, was guided by those matters addressed by Heydon J in Hellicar. Among the authorities considered by his Honour were Ho v Powell [2001] NSWCA 168; 51 NSWLR 572 (Ho) and Cook’s Construction Pty Limited v Brown [2004] NSWCA 105 (Cook’s Construction) in each of which matters Hodgson JA had addressed those matters relevant to a determination as to whether an onus has been discharged. In Ho, his Honour considered those circumstances where a question arose as to whether limited evidentiary material was an “appropriate basis on which to reach a reasonable decision”. His Honour’s view was expressed that “it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so” (at [14] to [15]).
In Cook’s Construction Hodgson JA observed, as was cited by the Senior Arbitrator:
“where a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party's favour from indirect and second-hand evidence, when the party doesn't call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation” (at [42]).
The submissions put by Mr Vella appear to suggest that the Senior Arbitrator has treated the evidence concerning payment of an annual sum and/or the evidence of the son being on call as “equating with” evidence of Mr Vella having employed any worker in the performance of the relevant contract. That submission must be rejected. The Senior Arbitrator has identified the deficiencies in the evidence. Careful attention has been given to those authorities relevant to the discharge of an onus upon a party to prove a negative. The evidence was found to be sparse.
The facts as found by the Senior Arbitrator were that an annual sum of “about $5000” was paid to the son, David. It is clear that, in the absence of direct evidence that may reasonably be anticipated from Mr Vella or others concerning the terms of the son’s employment, the Senior Arbitrator refrained from drawing an inference that no worker had been employed in the performance of the Chipping Norton contract. That approach was open to the Senior Arbitrator having regard to the state of the evidence. His finding that the onus of proof had not been discharged was reached following a correct application of relevant principle. Mr Vella has failed to demonstrate any relevant error under this first ground.
Ground (b)
This ground suggests error on the part of the Senior Arbitrator in failing to afford Mr Vella procedural fairness. Submissions concerning this ground may be summarised as follows:
(a) the issue concerning whether “any worker” was employed in the performance of the Chipping Norton job had not been “previously raised by the respondent in either the s 74 notice, the Reply or the teleconference”;
(b) that issue was decided by the Senior Arbitrator “without affording [Mr Vella] an opportunity to call further evidence in support of the issue and/or make submissions directly related to the issue”;
(c) Mr Vella’s case was presented “on the basis that if the work arrangement between [Mr Vella] and the respondent was a single contract, [Mr Vella] had employed his son in the performance of the contract and was thus not a deemed worker” at [29] of submissions;
(d) it is suggested that the respondent had submitted before the Senior Arbitrator that “the payment of about $5,000 to the son for the financial year ending 30 June 2010 was consistent with his working for [Mr Vella] after 12 July 2009”. That submission was put without there being any evidence adduced by the respondent nor any cross-examination concerning the issue;
(e) the author of the submissions states that it is his “recollection” that an objection was made concerning the respondent’s submission but that, at the time of preparation of the submissions on this appeal, a transcript of proceedings was not available, and
(f) had Mr Vella been “alerted to the Arbitrator’s thinking on this issue… leave to call further evidence would have been sought and/or a submission on the particular issue made”.
The Commission is bound by the rules of natural justice. Those rules and principles demand that the parties be afforded procedural fairness. A party must be afforded an opportunity to answer the case against him or her (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gaudron and Gummow JJ at 611).
The question arises as to whether such opportunity had been denied Mr Vella in the course of proceedings before the Senior Arbitrator. Mr Vella had at all relevant times been aware that the respondent disputed his allegation that the facts supported a finding that he was a “deemed” worker. One “ingredient” that needed to be established was that he did not employ any worker in the performance of the contract. The decision of Scerri in which those “ingredients” were enumerated by Bainton A-JA, had been adverted to by counsel in the course of submissions. The issue of employment of any worker and its relevance to the determination of entitlement was, in my view, squarely raised by the respondent’s denial that he was a deemed worker.
I note that the transcript of proceedings does not reveal any objection taken by Mr Vella to the argument concerning employment of “any worker”. Mr Vella, as noted, has since the filing of submissions had access to the transcript and I note that no supplementary argument has been provided concerning the “recollection” of an objection to the respondent’s argument.
Mr Vella’s submissions imply that he was in some way taken by surprise by “the Arbitrator’s thinking on [the issue of ‘employment of any worker’]”. That suggestion must be rejected. Argument had been carefully formulated by counsel with a view to establishing, as found by the Senior Arbitrator, discrete contracts. Counsel had accepted the suggestion made by the Senior Arbitrator (at T30) that “the finding of a series of severable contracts is effectively crucial to your client succeeding, is it?” The evidence relied upon was that the son had last assisted his father in July 2009. The evidence was otherwise silent, as found by the Senior Arbitrator, concerning the employment arrangements of the son.
As discussed when considering ground (a), the onus remained upon Mr Vella concerning proof of this issue of employment of any worker, and no inference may be drawn from the suggested “failure” of the respondent to adduce evidence or to cross examine concerning the issue. Mr Vella was afforded an opportunity to present argument concerning that issue (at T29 and T30). Mr Vella’s argument that there had been a denial of procedural fairness must be rejected and ground (b) must fail. The appeal should be dismissed.
DECISION
The award found in Certificate of Determination dated 11 May 2012 is confirmed.
COSTS
No order as to costs of the appeal.
Kevin O'Grady
Deputy President
22 August 2012
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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