Workers Compensation Nominal Insurer v Elias Bader t/as Genuine Kitchens (No 5) - [2020] NSWWCCPD 72

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Workers Compensation Nominal Insurer v Elias Bader t/as Genuine Kitchens (No 5) [2020] NSWWCCPD 72
APPELLANT:	Workers Compensation Nominal Insurer
FIRSTRESPONDENT:	Elias Bader t/as Genuine Kitchens
SECOND RESPONDENT:	Botros Abdelahad
INSURER:	Workers Compensation Nominal Insurer (icare Workers Insurance)
FILE NUMBER:	A2-954/18
ARBITRATOR:	Mr M Perry
DATE OF ARBITRATOR’S DECISION:	25 October 2019
DATE OF APPEAL DECISION:	10 December 2020
SUBJECT MATTER OF DECISION:	Section 155AA of the Workers Compensation Act 1987; credibility
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	Oral
HEARING DATE:	7 September 2020
REPRESENTATION:	Appellant:
Mr A Combe, counsel
Sparke Helmore Lawyers
First Respondent:
Mr I Latham, counsel
Uther Webster & Evans

Second Respondent:
Mr A Davis, counsel
Veritas Legal
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 25 October 2019 is confirmed.

INTRODUCTION

This appeal concerns the construction of s 155AA of the Workers Compensation Act 1987 (the 1987 Act). In particular, the appeal challenges a finding made by the learned Arbitrator at first instance that the first respondent was an exempt employer within the meaning of s 155AA and as a consequence was exempt from holding a workers compensation policy of insurance at the time the worker suffered an injury in the course of his employment with the first respondent.
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
The appellant, the Nominal Insurer, asserted that this was not an appropriate matter to deal with on the papers. In the circumstances I accepted this submission and a formal appeal hearing was heard before the Commission constituted by myself on 7 September 2020. This hearing was conducted by audio-visual means given the currency of the pandemic.
The dispute in this matter rests within a defined compass. The contest was whether or not the first respondent to this appeal was an exempt employer pursuant to s 155AA of the 1987 Act. The determination of this question depended upon a contest of the credit of the first respondent (the employer, Mr Bader) and the second respondent (the worker, Mr Abdelahad). This involved cross examination of both men and the examination of a number of documents going to this issue. There was no contest regarding injury or incapacity and so the evidence which was before the learned Arbitrator on those issues is not relevant for consideration in this appeal.

THRESHOLD MATTERS

The Nominal Insurer and Mr Bader agree that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

PREVIOUS PROCEEDINGS

There is some history to these proceedings before the Commission. It is necessary to outline the history of the prior proceedings, as well as the current proceedings. The factual dispute however was the same in both the prior and current proceedings. There were prior proceedings commenced in 2015 in the Commission that were discontinued. The current proceedings have involved a determination by Arbitrator Homan,[1] an appeal before Deputy President Wood,[2] which revoked the first Certificate of Determination, and a re-determination of the matter by Arbitrator Perry.[3] The re-determination by Arbitrator Perry (the learned Arbitrator) is the subject of the appeal now currently before me. The salient elements of each of those proceedings is briefly overviewed below. Each of the proceedings and determinations referred to above will be discussed in turn.
[1] Elias Bader t/as Genuine Kitchens v Workers Compensation Nominal Insurer [2018] NSWWCC 182.
[2] Elias Bader t/as Genuine Kitchens v Workers Compensation Nominal Insurer [2018] NSWWCCPD 54.
[3] Bader v Workers Compensation Nominal Insurer [2019] NSWWCC 350.

Matter No: 5474/15 (Bader No 1)

In a notice dated 14 August 2015, issued to Mr Bader, the Nominal Insurer claimed reimbursement of payments made totalling $30,815.82.
On 23 September 2015, Mr Bader lodged a miscellaneous application in the Commission in accordance with s 145(3) of the 1987 Act. He asserted that he was an “exempt employer” pursuant to s 155AA of the 1987 Act.
On 2 February 2016, Arbitrator Batchelor issued consent orders, in which the proceedings were discontinued. The consent orders contained a notation that Mr Bader was to pay the Nominal Insurer the amount of $5,000 within 14 days and $1,075.64 per month for the following 24 months.

The current proceedings – matter no 954/18

First arbitration before Arbitrator Homan (Bader No 2)

On 15 January 2018, the Nominal Insurer issued a second notice, in which it sought reimbursement of a further $70,188.02 from Mr Bader. Mr Bader again lodged a miscellaneous application with the Commission pursuant to s 145(3) of the 1987 Act, asserting that he was an “exempt employer”.
Mr Bader also made an application for a reconsideration of the consent orders dated 2 February 2016 from Bader No 1.
The miscellaneous application and the reconsideration application were heard together before Arbitrator Homan on 30 May 2018. In addition to proceeding on the documentary evidence, oral evidence from Mr Bader was adduced and leave was granted for him to be cross examined. Mr Bader gave evidence without the assistance of an interpreter. Counsel for the parties addressed, and Arbitrator Homan reserved her decision.
The issues before Arbitrator Homan were:
(a)    whether the Commission had power to reconsider the Certificate of Determination – Consent Orders dated 2 February 2016;
(b)    if so, whether the discretion to reconsider that Certificate of Determination should be exercised;
(c)    whether Mr Bader was estopped from arguing that he was an exempt employer, and
(d) whether Mr Bader was an exempt employer pursuant to s 155AA of the 1987 Act.
On 1 August 2018, the Commission issued a Certificate of Determination,[4] in which Arbitrator Homan determined:
(a) Mr Bader was not an “exempt employer” pursuant to s 155AA of the 1987 Act;
(b) Mr Bader was liable to reimburse the Nominal Insurer the amount specified in the notice pursuant to s 145(1) of the 1987 Act served on him on 15 January 2018;
(c) the application for reconsideration pursuant to s 350(3) of the 1998 Act of the Certificate of Determination – Consent Orders dated 2 February 2016 issued in Commission proceedings 5474/15 was declined, and
(d) the application for orders terminating the agreement noted in the Certificate of Determination – Consent Orders dated 2 February 2016 issued in Commission proceedings 5474/15 was declined.
[4] Elias Bader t/as Genuine Kitchens v Workers Compensation Nominal Insurer [2018] NSWWCC 182 (Bader No 2).

First Presidential appeal before Deputy President Wood (Bader No 3)

Mr Bader appealed the Certificate of Determination issued by Arbitrator Homan dated 1 August 2018. That appeal was determined by Deputy President Wood in Elias Bader t/as Genuine Kitchens v Workers Compensation Nominal Insurer.[5]
[5] [2018] NSWWCCPD 54 (Bader No 3).
Amongst seven grounds advanced by Mr Bader, he alleged there was an error of law by Arbitrator Homan by failing to afford Mr Bader procedural fairness by rejecting the evidence of the accountant, Mr Shenouda, without first putting the rejection to Mr Bader. Ultimately, this was the only ground that was accepted.
In Bader No 3, Wood DP extensively set out the evidence of Mr Bader, including his oral evidence, Mr Bader’s documentary evidence, and Mr Abdelahad’s evidence. She then discussed the evidence relied upon by the Nominal Insurer in support of its case. Deputy President Wood set out Arbitrator Homan’s reasons, and extracted relevant passages from the decision of Kula Systems Pty Ltd v Workers Compensation Nominal Insurer.[6]
[6] [2018] NSWWCCPD 10 (Kula), [150], [166]–[167], [188]–[194].
With respect to Mr Shenouda’s evidence, Wood DP noted:
“The Arbitrator afforded some weight to Mr Shenouda’s evidence, but formed the view that it was less credible, partly because it was not elevated to the level of sworn testimony, but also because it was unusual that Mr Shenouda could recall with such particularity conversations between him and Mr Bader more than three years earlier. She observed that Mr Bader did not mention that he had consulted Mr Shenouda until after the first notice pursuant to s 145(1) had been issued. Further, … Arbitrator [Homan] thought that evidence to be inconsistent with Mr Bader’s attempt to obtain a policy of insurance shortly after and on the day of the injury, and his expectation that the injury would be covered by that insurance.”[7] (footnote omitted)
[7] Bader No 3, [131].
In relation to the submissions made during the course of proceedings, the Deputy President continued:
“During the course of the proceedings, neither the Nominal Insurer nor Mr Abdelahad raised any issue or made any submission in respect of the relevance of, the credibility of, or the weight to be afforded to, the evidence of Mr Shenouda. The Arbitrator’s conclusion was essentially one in which she doubted the credibility of that evidence.”[8]
[8] Bader No 3, [132].
Wood DP observed it was not part of either respondent’s case that Mr Shenouda’s evidence should not be accepted. She was of the view that in the circumstances of the case:
“where neither the Nominal Insurer, or Mr Abdelahad had adduced any evidence or made any submission that challenged the evidence of Mr Shenouda, the risk of an adverse finding based on an inference drawn from the facts about that evidence would not have been apparent to Mr Bader.”[9]
[9] Bader No 3, [142].
She further added:
“Had Mr Bader been afforded the opportunity, he could have made submissions as to why that evidence was relevant and ought to be accepted. The Nominal Insurer would also have had the opportunity to make submissions, including as to its relevance. The Arbitrator considered that it was relevant and her ultimate determination was in part based on that evidence, which made that evidence important to the final outcome.”[10]
[10] Bader No 3, [143].
The Deputy President found Mr Bader had “been denied procedural fairness by not being afforded the opportunity to address the concerns articulated by the Arbitrator and the inference she drew from Mr Shenouda’s evidence.”[11] She held “[s]uch a breach of procedural fairness [had] deprived Mr Bader of the possibility of a successful outcome”[12] (emphasis in original) and required that Bader No 2 be revoked.
[11] Bader No 3, [144].
[12] Bader No 3, [147].
On 18 December 2018, Deputy President Wood revoked the Certificate of Determination dated 1 August 2018, and remitted the matter to another arbitrator for re-determination.

Second Arbitration before Arbitrator Perry

Following Deputy President Wood’s determination, Mr Bader lodged with the Commission on 18 April 2019 an Amended Miscellaneous Application.
The matter was listed before Arbitrator Perry on 5 April 2019 for re-determination. Mr Bader applied for an adjournment on the basis that he had just received documents that he had sought for some time. The Arbitrator granted this adjournment; listing the matter next for hearing on 7 June 2019. At that hearing, Mr Bader was cross examined. The hearing did not conclude on this day and was further listed for hearing on 5 July 2019. On 5 July 2019, issues and documents were identified and Mr Abdelahad was cross examined. Following this hearing, in accordance with a Direction issued by the learned Arbitrator dated 5 July 2019, the parties also made written submissions.
On 19 July 2019, Mr Bader lodged his submissions.
The Nominal Insurer lodged its submissions on 2 August 2019 (with a minor typographical error corrected by email on 5 August 2019).
On 16 August 2019, Mr Abdelahad lodged his submissions.
On 22 August 2019, Mr Bader lodged submissions in reply.

THE ARBITRATOR’S REASONS (BADER NO 4)

On 25 October 2019, the learned Arbitrator issued a Certificate of Determination accompanied by 30 pages of written reasons. He identified the following issues for determination:
(a) whether Mr Bader was an exempt employer pursuant to s 155AA of the 1987 Act;
(b) whether Mr Bader was estopped from arguing that he was an exempt employer, and
(c) whether there should be an order that Mr Bader not be liable to reimburse the Nominal Insurer pursuant to the 2015 notice.
The learned Arbitrator set out the documentary evidence that was before him, including Mr Bader’s statements dated 10 December 2014 and 21 February 2018. He also summarised an affidavit sworn by Mr Bader on 1 May 2019 which set out the circumstances in which Mr Abdelahad came to be employed by him. The learned Arbitrator set out how Mr Abdelahad was paid. At [20] of the Reasons, the learned Arbitrator noted Mr Bader’s account of the morning of Monday 20 October 2014, in which Mr Bader said he handed Mr Abdelahad a letter dated 19 October 2014, which advised Mr Abdelahad that Mr Bader was formally ending Mr Abdelahad’s employment. The English translation of the letter said:
“Dear Botros,
I am so sorry to ask you to leave work with us by the end of this week. The only reason is that I do not want to expand business, and I do not have enough work. It has been just an opportunity for you to start from here, and the purpose was for you to be with me for 2 or 3 weeks. Having told you once and again to leave work, and given that you have ignored what I said, I now have to write this notice in order for you to understand that it is serious. Thank you for having been with us.”
At [20]–[22] of the Reasons, the learned Arbitrator set out Mr Bader’s evidence about the factual investigation undertaken by Allianz. At [24] of the Reasons, the learned Arbitrator set out Mr Bader’s recollection of being asked to complete an employer injury form. In that form dated 19 November 2014, Mr Bader set out Mr Abdelahad’s wages and marked on the form Mr Abdelahad was never to return to work. The learned Arbitrator also recorded that Mr Bader says he also ticked the “full time” and “permanent” boxes on the form because at the time Mr Abdelahad was employed, he was full time and permanent for the short period he had agreed to employ Mr Abdelahad for. At this point, I note that that form also included at the bottom of that form a declaration which was signed by Mr Bader as being true and correct.
The learned Arbitrator proceeded to set out other documents relied upon, including Mr Bader’s tax return for the financial year ending 2015. The learned Arbitrator also set out various passages from correspondence from WorkCover and Allianz.
The learned Arbitrator made note of other statements including from Mr Shenouda, Mr Bader’s accountant, Mr Philip Kass, a contract installer, and Ms Mary Lahoud, Mr Bader’s daughter. The learned Arbitrator extensively set out Mr Bader’s oral evidence.
The learned Arbitrator also set out the evidence relied upon by the Nominal Insurer, including the report by Mr John Gottstein dated 3 December 2014, Mr Abdelahad’s evidence, including copies of Western Union money transfers, which Mr Abdelahad said were money transfers from him to family in Lebanon. Reference is made to statements made by Mr Abdelahad dated 12 November 2014, a statutory declaration dated 1 December 2014 and a statement dated 6 June 2019. The learned Arbitrator also set out Mr Abdelahad’s oral evidence.
The learned Arbitrator proceeded to summarise the parties’ written submissions from [62] to [110] before setting out the principles he was guided by in his determination at [111]–[113] of the Reasons. The learned Arbitrator said he was bound by Kula. He also quoted various passages from the High Court’s decision in Prior v Mole.[13]
[13] [2017] HCA 10.
With respect to the first issue, whether Mr Bader was an exempt employer, the learned Arbitrator held the circumstances were consistent with Mr Bader telling Mr Abdelahad[14] he would employ him on a casual basis to start out in the workforce. The learned Arbitrator also noted there was no denial of this by Mr Abdelahad. The learned Arbitrator noted the reference “casual” does not necessarily equate to temporary employment, and noted that Mr Bader had ticked the box “permanent” on the claim form. The learned Arbitrator disagreed with the criticism that Mr Bader’s evidence had no credit due to his failure to tick the “temporary basis” box. The learned Arbitrator accepted[15] Mr Bader’s explanation in the letter to WorkCover on 14 September 2015 that he had inadvertently ticked the box “permanent”. The learned Arbitrator noted he had had the opportunity to observe Mr Bader in cross examination and the difficulties with English as his second language. He also accepted Mr Bader’s explanation that he did not fully understand the legal meaning of the terms. The learned Arbitrator agreed with the submission that it can often be a matter of legal argument as to what these terms mean.
[14] Reasons, [120].
[15] Reasons, [122].
The learned Arbitrator noted the significance of Mr Bader’s statement to Mr Gottstein that he told Mr Abdelahad that he would employ him on a casual basis and noted the context of the use of the word “casual”. The learned Arbitrator noted there was no express reference to employment being temporary in Mr Bader’s statement dated 10 December 2014.
The learned Arbitrator turned to evidence that was either agreed or uncontested for assistance. He also noted that there was no express or clear evidence from Mr Abdelahad to contradict Mr Bader’s evidence that Mr Abdelahad was told that the employment would be on a casual (in context temporary) basis. At [133] of the Reasons, the learned Arbitrator said he was not prepared to infer from Mr Abdelahad’s statement of 12 November 2014 (where he said he commenced employment on a full-time basis) that Mr Abdelahad’s employment would be ongoing.
With respect to Mr Bader’s tax return for the financial year ending in 2015, at [136] of the Reasons, the learned Arbitrator disagreed with the assertion that the content of that tax return showed that a reasonable person could not have believed the wages payable in that year would not exceed $7,500. He noted total business income was noted at $234,935, and total expenses came to $234,421. The learned Arbitrator noted what those expenses were comprised of. He said there was no deeper analysis of the tax return and partly for that reason, did not see the tax return as of assistance either way.
At [137] of the Reasons, the learned Arbitrator noted Mr Bader’s reliance on the tax return which noted that total salary and wage expenses total $4,800. The learned Arbitrator noted this was correct on a literal basis. As to whether there was any real difference though, the learned Arbitrator said he was unsure and Mr Bader’s evidence in this regard was unsatisfactory.
At [142] of the Reasons, the learned Arbitrator said he believed that Mr Bader told Mr Abdelahad that he could only employ him for a short term to assist him in entering the workforce.
From [146] of the Reasons, the learned Arbitrator discussed the letter dated 19 October 2015 (sic, 2014), set out above. The learned Arbitrator recorded the Nominal Insurer’s submission that it was a disingenuous attempt for Mr Bader to assert that he was not asked about the letter by the investigator leading to his 10 December 2014 statement. The learned Arbitrator was of the view that Mr Abdelahad had not contradicted this evidence.
At [147] of the Reasons, the learned Arbitrator finds that Mr Bader has not made a concession that he did not give Mr Abdelahad the letter. At [148], the learned Arbitrator said:
“For reasons earlier given, I also accept his reference to ‘casual’ included the employment being temporary. In cross examination on 7 June 2019 he also stated that ‘this is the first time for a person to be injured’. In viewing the whole of the evidence, including the lack of evidence contradicting this, I also accept such evidence. It is consistent with him stating he was not particularly sophisticated with these types of issues.”

The learned Arbitrator says that contrary to the Nominal Insurer’s submission, there is no evidence, including from Mr Abdelahad to contradict Mr Bader that he gave the notice to Mr Abdelahad. The learned Arbitrator recorded “[a] submission has been made about it by [Mr Abdelahad’s] solicitor in a letter on 31 May 2018, stating that [Mr Abdelahad] maintains he did not receive ‘… letter conveniently dated 19 October 2014 …’”.[16]
[16] Reasons, [149].
The learned Arbitrator accepted that Mr Abdelahad’s solicitor would not have made that submission without instructions from Mr Abdelahad. The learned Arbitrator noted that procedure before the Commission is to be conducted with as little formality and technicality as proper consideration of the matter permits, and reference is made to Onesteel Reinforcing Pty Ltd v Sutton.[17] The learned Arbitrator added that even if the letter had not been provided to Mr Abdelahad, it did not detract from the fact that Mr Bader had asked Mr Abdelahad to find other worker and that Mr Bader had told Mr Abdelahad that he needed to terminate the employment.
[17] [2012] NSWCA 282; 13 DDCR 351 (Sutton).
The learned Arbitrator proceeded to deal with Mr Bader’s statement of 21 February 2018 and said that nothing turned on the inconsistency in that statement that the termination notice was dated 24 October 2014. The learned Arbitrator accepted that the employment was intended by Mr Bader to be short term and that Mr Bader became increasingly conscious of the need to formally terminate Mr Abdelahad’s employment.
At [153] of the Reasons, the learned Arbitrator held Mr Abdelahad’s evidence was not totally reliable either. He pointed out inconsistencies in Mr Abdelahad’s evidence concerning the duration of his employment with Mr Bader. The learned Arbitrator also noted at [154] of the Reasons, inconsistencies in Mr Abdelahad’s evidence regarding amounts he was paid, which were variously said to be either $1,200 or $1,000 per week. The learned Arbitrator noted that after his cross-examination, without being prompted, Mr Abdelahad added the amount of cash he was paid per week was $600 per week. The learned Arbitrator did not accept this evidence and was of the view that it was inconsistent with other evidence from Mr Abdelahad that the cash payment(s) for overtime was $400.
In a credibility finding at [155] of the Reasons, the learned Arbitrator said he did not think Mr Abdelahad was being deliberately deceptive. He added that he was not inclined to make any adverse findings about the other parts of his evidence by Mr Bader. The learned Arbitrator did point out that there was sufficient doubt about Mr Abdelahad’s evidence being totally reliable to warrant care needing to be taken with it. At [156], the learned Arbitrator found:
“In all the circumstances, including the lack of evidence for each respondent to contradict the applicant, I find it more likely than not that the applicant did give the notice of finish to the worker on 20 October 2014. I also find that the applicant did, indeed, raise with the worker his concern about the worker needing to look for other employment, and to leave (or prepare to do so), on more than one occasion prior to 17 October 2014, because he believed he could not keep the worker employed for much longer as the exemption limit may be crossed. I believe this likelihood to be consistent with the preponderance of the evidence.”
The learned Arbitrator then dealt with Mr Bader’s letter dated 21 February 2015 sent to Mr Abdelahad and said this letter did not change the learned Arbitrator’s view about the core issue to be decided, being whether Mr Bader had reasonable grounds for believing that the total amount of wages payable during the 2015 financial year was not more than the exception limit. The learned Arbitrator said this was a side issue and was unnecessary and inappropriate for him “to conduct an analysis of the rights and wrongs of this letter – except to the extent such is relevant to the issues that remain in” the case.[18] He concluded at [158] of the Reasons that with reference to the main issue in the case, the letter really only amounted to Mr Abdelahad having more work after 20 October 2014, but only specifically referring to the next day. The learned Arbitrator held this was no consistent with his earlier analysis and findings that Mr Bader had intended to finally force the termination of Mr Abdelahad’s employment by 24 October 2014.
[18] Reasons, [157].
The learned Arbitrator then dealt with the evidence of Mr Shenouda, Ms Lahoud and Mr Kass, which it is not necessary to set out in detail for the purposes of this appeal.
At [163] of the reasons, the learned Arbitrator said there is no requirement to accept the whole evidence of any one witness, relying on Chanaa v Zarour.[19] He also applied the principle that although the Commission is not bound by the rules of evidence, “it is still required to draw its conclusions from satisfactory material, in the probative sense, to ensure such conclusions are not seen to be capricious, arbitrary or without proper foundation or material”, applying Sutton.
[19] [2011] NSWCA 199.
The learned Arbitrator then dealt with the issue of whether Mr Bader was estopped from arguing that he was or is an exempt employer, which for this appeal, it is not necessary to set out in detail the learned Arbitrator’s findings and analysis. Following this, the learned Arbitrator then considered whether there should be an order made that Mr Bader not be liable to reimburse the Nominal Insurer pursuant to the 2015 notice.
The Certificate of Determination recorded:
“1. The applicant was an exempt employer, within the meaning of s 155AA of the Workers Compensation Act 1987 between 1 July 2014 and 24 October 2014.
2. The applicant is deemed to have obtained from the first respondent, and the first respondent is deemed to have issued, a policy of insurance in accordance with s 155 of the Workers Compensation Act 1987 for the period between 1 July 2014 and 24 October 2014.
3. The applicant is not estopped from arguing that he was an exempt employer with respect to the notice issued by the first respondent on 15 January 2018, pursuant to s 145(1) of the Workers Compensation Act 1987.
4. The applicant’s claim for an order that he not be liable to reimburse the first respondent with respect to the notice issued by that respondent on 14 August 2015 under s 145(1) of the Workers Compensation Act 1987 is refused.”
The Nominal Insurer appeals against that determination.

GROUNDS OF APPEAL

The Nominal Insurer brings the following five Grounds of appeal:
(a)    “Ground 1: The Arbitrator erred at [120]–[133] in accepting the Employer employed the Worker on a casual basis and a temporary basis and accepted the Employer as to credit”;
(b)    “Ground 2: The Arbitrator erred at [136]–[137] with respect to the FYE 2015 tax return”;
(c)    “Ground 3: The Arbitrator erred at [146]–[151] in finding that the Nominal Insurer and the Worker did not adequately contradict the service of the notice of termination”;
(d)    “Ground 4: The Arbitrator erred in finding at [157]–[158] the letter dated 21 February 2015 only established the Worker having work for the next day after 20 October 2014”, and
(e)    “Ground 5: The Arbitrator erred in rejection of the Anshun estoppel based on a finding the Employer compromised for reasons including the ‘evidentiary landscape’ and failing to find the prejudice to the Nominal Insurer founded an estoppel”.
At the commencement of the hearing on 7 September 2020, the Nominal Insurer stated that it did not press Ground 5. Accordingly, it is not necessary to set out the parties’ submissions on that ground or consider it further.

PRINCIPLES ON APPEAL

The appellant in this matter is essentially challenging a number of factual findings that were made by the learned Arbitrator. Given the approach adopted by the appellant to this appeal, it is necessary to set out in some detail the principles which are applied on appeal. This is especially relevant where factual findings that were made at first instance are under challenge.
Section 352(5) of the 1998 Act 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,[20] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[21] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[22]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, 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 [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’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 Arbitrator was wrong.
(c)     It may be shown that an Arbitrator 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[23]
[20] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[21] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[22] [1996] HCA 140; 140 ALR 227 (Zuvela).
[23] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[24] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[25]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[26]
[24] [2017] NSWWCCPD 5, [67].
[25] [2001] FCA 1833 (Branir), [28].
[26] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[27] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519”.[28]
[27] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[28] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[29] 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).”[30]
[29] [2020] NSWCA 54 (Hill).
[30] Hill, [20].

LEGISLATION

Section 145 of the 1987 Act provides:
“145 Employer or insurer to reimburse Insurance Fund (cf former s 18C (21)–(26))
(1)     The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a)in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b)an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2)     The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that—
(a)the amount is beyond the capacity of the employer to pay,
(b)the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c)the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d)the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e)the employer, being a corporation, has been dissolved, or
(f)it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.
(3)     A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4)     The Commission may hear any such application and may—
(a)make such determination in relation to the application, and
(b)make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5)     In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a)the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b)a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6)     The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7)     An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.”
Section 155AA of the 1987 Act provides:
“155AA   Exempt employers not required to obtain policy of insurance
(1)     An employer is an exempt employer during a financial year while the employer has reasonable grounds for believing that the total amount of wages that will be payable by the employer during the financial year to workers employed by the employer will be not more than the exemption limit for that financial year.
(2)     An employer is not an exempt employer whenever the employer—
(a)is a member of a group constituted under Division 2A, or
(b)employs a person under a training contract (within the meaning of the Apprenticeship and Traineeship Act 2001).
Note. A training contract is a contract entered into for the purpose of establishing an apprenticeship or traineeship.
(3) An employer who is an exempt employer for the whole or any part of a financial year is deemed to have obtained from the Nominal Insurer (and the Nominal Insurer is deemed to have issued) a policy of insurance in compliance with section 155 (an exempt employer policy) for any period for which the employer is an exempt employer during the financial year. No premium is payable for an exempt employer policy.
(4) An exempt employer policy covers the employer for any period for which the employer is an exempt employer but does not cover the employer for any period for which the employer has actually obtained a policy of insurance under section 155.
(5)     An administration fee of an amount prescribed by the regulations is payable to the Nominal Insurer by an employer in respect of each claim made against the employer in respect of an injury to a worker received during any period for which an exempt employer policy covers the employer.
(6)     The regulations may make provision for or with respect to the payment of an administration fee, including provision for or with respect to any of the following—
(a)the period within which an administration fee must be paid,
(b)the payment of a late payment fee if an administration fee is not paid within the required period,
(c)the full or partial waiver or refund of an administration fee or late payment fee.
(7)     The Nominal Insurer is entitled to recover as a debt in a court of competent jurisdiction an administration fee payable by an employer together with any late payment fee payable.
(8)     In this section—
exemption limit for a financial year means $7,500 or such other amount as may be fixed by the Workers Compensation Market Practice and Premiums Guidelines as the exemption limit for that financial year.
financial year means a period of 12 months commencing on 1 July in any year.
wages means wages as defined in section 174 and includes any distribution to a worker as a beneficiary under a trust that would (under section 174AA) constitute wages for the purposes of section 174.”

SUBMISSIONS

The Nominal Insurer and Mr Bader made general submissions before turning to address each ground of appeal. It is convenient that I set it out those general submissions before turning to discuss the submissions in respect of each ground of appeal.

Mr Abdelahad’s role in these proceedings

At the outset, I note that the second respondent, Mr Abdelahad, did not lodge a Notice of Opposition. Given the nature of these proceedings, namely the Nominal Insurer seeking recovery from an uninsured employer, Mr Abdelahad’s role in the proceedings was necessarily limited.
On the morning of the hearing, I received a one-page document from Mr Abdelahad’s counsel setting out his submissions. Those submissions state that Mr Abdelahad “does not oppose the orders as proposed, and respectfully agrees with (and adopts) the submissions of the [a]ppellant.” He says that the issues on the appeal largely do not affect him, and for that reason, “it is not proposed to address in any detail the issues raised”.
Mr Abdelahad contends that the issues of employment; injury; incapacity, and average weekly earnings are not, and never have been, in dispute. He notes that the orders sought on the appeal do not seek to affect those issues. Mr Abdelahad adds that, “provided only that no party or the Commission seek to adversely affect the interests of the [s]econd respondent, or make a determination that may have such an [e]ffect”, Mr Abdelahad “does not need to be heard on the issues raised in the appeal, other than to note its general agreement with the submissions already advanced by the [a]ppellant”.

Mr Abdelahad further adds that on the basis that no binding determination is to be made as to the relevant weekly wage rate that may prejudice him, there is no need to address the issues. He also notes that the learned Arbitrator declined[31] to make any determination on the issue and Mr Abdelahad takes no issue in that regard.
[31] At [140] of the reasons.
Mr Abdelahad concludes that in view of the above, he does not intend to make lengthy or detailed submissions on the matters raised in the appeal “other than as maybe required” for the reasons referred to above and to note “general agreement” with the Nominal Insurer’s submissions.
Counsel for Mr Abdelahad and his instructing solicitor attended the oral hearing. At that hearing, counsel confirmed that Mr Abdelahad’s role “is really one of seeking to protect just the position of the worker”[32] and noted “the real concern is findings that may be adverse to the worker that may have an implication should something arise into the future.”[33]
[32] Transcript 7 September 2019, 45.5.
[33] Transcript 7 September 2019, 45.9.
Following the Nominal Insurer’s and Mr Bader’s oral submissions, counsel for Mr Abdelahad submitted in response to the assertion that the learned Arbitrator believed one witness, that that was not the case. Mr Abdelahad noted that there were various aspects where the learned Arbitrator accepted aspects but not other aspects. Reference was made to [161] of the Reasons where the learned Arbitrator noted he largely accepted the evidence of Mr Bader on critical issues. Mr Abdelahad submits there are aspects of evidence that the learned Arbitrator has not accepted or found unsatisfactory.
Counsel for Mr Abdelahad also made a submission that the Nominal Insurer’s assertion that the error found in Bader No 3 in respect of procedural fairness has been replicated in the current matter. Mr Abdelahad says that this is a different point in the present case to that in Bader No 3.

The Nominal Insurer’s general submissions

Written submissions

The Nominal Insurer refers to s 352(1) and (5) of the 1998 Act. It submits the appeal is to be determined in accordance with Raulston at [17]–[31]. It contends credibility based findings may be overturned if incontrovertible facts or uncontested evidence establish the findings were wrong. The Nominal Insurer, referring to Raulston at [26],[34] submits that in rare cases, although the facts fall short of being incontrovertible, such findings may be overturned if they are “glaringly improbable” or “contrary to compelling inferences”. Relying on Suvaal v Cessnock City Council,[35] the Nominal Insurer says a finding of fact may not be open to an arbitrator if it was not claimed or was not an issue in a case.
[34] Citing Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy), [22].
[35] [2003] HCA 41; 200 ALR 1 (Suvaal), [145] (per Callinan J).
The Nominal Insurer recounts the claim was one under s 145(1) of the 1987 Act regarding the sum of $70,188 and the disputation by Mr Bader on the basis of s 155AA of the 1987 Act. The Nominal Insurer sets out that the issue was whether Mr Bader was an exempt employer, and this legal issue was determined by factual issues that required credibility findings between the Nominal Insurer’s and Mr Bader’s evidence. The Nominal Insurer notes Mr Bader’s evidence was preferred. It submits the learned Arbitrator’s credibility based findings were a mixed error of fact and law, as the erroneous factual findings “led to an erroneous legal conclusion as to exempt employer”.[36] It argues “[t]his erroneous legal conclusion as to exempt employer led to a final erroneous legal conclusion that [Mr Bader] was not liable to reimburse the Nominal Insurer under s 145 of the 1987 Act”.[37]
[36] The Nominal Insurer’s written submissions, [2].
[37] The Nominal Insurer’s written submissions, [2].

Oral submissions

Before moving onto submissions addressing each ground of appeal, the Nominal Insurer corrected some errata in its written submissions and gave some background to the matter. Specifically, the Nominal Insurer drew my attention to a number of documents in the evidence, which it is convenient to outline here.
The first documents related to evidence of the initial management of the claim that was initially made to Allianz as a scheme agent, which was then transferred to the Nominal Insurer.[38]
[38] The Reply filed by the Nominal Insurer (Reply), pp 80–84.
It then referred to the first Notice issued pursuant to s 145(1) of the 1987 Act on 14 August 2015,[39] and the consent orders that were ultimately issued.[40] The Nominal Insurer submitted that there was evidence Mr Bader had repaid $23,285.88 or about 80% following those consent orders in Bader No 1.[41]
[39] Reply, pp 9–11.
[40] Reply, p 23.
[41] Transcript 30 May 2018, 27.20.
Moving onto the Amended Miscellaneous Application dated 8 April 2019, the Nominal Insurer recounted that at Part 6, there was an allegation that Mr Abdelahad was employed for a fixed period with his employment being terminated in writing by notice issued by Mr Bader on 24 October 2014. The Nominal Insurer submits the date of 24 October 2014 “was in effect a typographical error” and Mr Bader “amended to assert there was a termination by way of notice dated 19 October 2014”[42] that was handed to Mr Abdelahad on 20 October 2014. The Nominal Insurer also referred to the assertion at Part 6 that for the financial year 1 July 2014 to 30 June 2015, Mr Bader paid total wages of $4,000 gross and that the relevant exemption limit was $7,500.
[42] Transcript 7 September 2020, 7.17.
The Nominal Insurer also referred to the transcript of proceedings before Arbitrator Homan from 30 May 2018, which the learned Arbitrator admitted into evidence before him.
The Nominal Insurer also noted both parties’ reliance upon Kula, which is said to be the only Presidential authority on s 155AA.
In relation to the first issue before the learned Arbitrator, being whether Mr Bader was an exempt employer, which was dependent on credit findings, the Nominal Insurer referred to Mr Bader’s statement dated 10 December 2014, specifically at [8] where the Nominal Insurer says it states Mr Abdelahad commenced employment with Genuine Kitchens on 1 September 2014 on a casual basis as a cabinetmaker.[43] The Nominal Insurer states Mr Bader’s statement dated 21 February 2018[44] details that he set up his business in retirement and he had no need for employees and was aware of the $7,500 cap on the exemption under s 155AA of the 1987 Act.
[43] Transcript 7 September 2020, 9.14.
[44] Miscellaneous Application, p 34, [8].
The Nominal Insurer also refers to [9] of that statement, where Mr Bader gave evidence that he employed Mr Abdelahad after he (Mr Abdelahad) approached Mr Bader, and Mr Bader indicated to Mr Abdelahad that Mr Bader would not provide long term employment and would only employ Mr Abdelahad on the short term for what was called a “short term contract”.
The Nominal Insurer recounts Mr Bader’s evidence that he paid Mr Abdelahad $600 per week gross, deducted $50 in tax and deposited $500 into Mr Abdelahad’s bank account and that Mr Bader gave Mr Abdelahad the deposit slips as receipts.[45] Reference is also made to a deposit slip dated 17 October 2014, which contained handwritten notes on the back of it.
[45] Transcript 7 September 2020, 10.1.
The Nominal Insurer also draws attention to the Notice to finish work dated 19 October 2014[46] and the accompanying translation[47] and submits that in contrast, Mr Abdelahad’s evidence was that he was employed by Mr Bader on a full-time basis; he was paid $1,000 per week which was made up of $600 gross, of which $50 was deducted as tax, with $550 being deposited into his bank account and the remaining $400 was paid in cash.
[46] Amended Miscellaneous Application, p 21.
[47] Amended Miscellaneous Application, p 22.
The Nominal Insurer refers to Mr Abdelahad’s statement,[48] in which he says he was employed as a carpenter on a full-time basis,[49] his working hours were between 7.30 am and 4 pm Monday to Saturday if required, and he worked longer hours up to 7 pm if required.[50] The Nominal Insurer also notes that Mr Abdelahad refers[51] to a handwritten payslip[52] he was given.
[48] Reply, pp 40–43.
[49] Mr Abdelahad’s statement dated 12 November 2014, [8], Reply, pp 40–41.
[50] Mr Abdelahad’s statement dated 12 November 2014, [9], Reply, p 41.
[51] Mr Abdelahad’s statement dated 12 November 2014, [11], Reply, p 41.
[52] Which appears in the Reply, pp 78–79.
The Nominal Insurer submits that on the basis of Mr Abdelahad’s evidence, there seemed to be a direct conflict between Mr Abdelahad and Mr Bader as to whether Mr Abdelahad was employed as a casual or a full-time worker, and the amount of money paid. The Nominal Insurer says that on Mr Abdelahad’s version of events he was paid $1,000 per week with some paid through his bank account, after a deduction for tax and the remaining amount paid cash in hand.[53] It relies upon Mr Abdelahad’s evidence to investigators that he was unable to prove the payment of cash in hand.
[53] Transcript 7 September 2020, 12.24.
It further adds that Mr Abdelahad also said that he sent sums of money to his family in Lebanon on a regular basis and would not have been able to do so if he was paid $550 per week by Mr Bader. The Nominal Insurer says that, in other words, the explanation for the difference of $400 is proven, if not corroborated, by the fact that contemporaneously with being paid by Mr Bader, Mr Abdelahad was also sending money to Lebanon. The Nominal Insurer submits there is an example of an electronic transfer in evidence and relies upon a Western Union transfer order dated 11 October 2014.[54] The Nominal Insurer submits this indicates an amount of money equivalent to $US1,000 was transferred during the time Mr Abdelahad was employed by Mr Bader.
[54] Reply, p 47.
The Nominal Insurer submits that there was a live dispute between the parties as to the payment to be made pursuant to an employment contract, which also then raised an issue as to whose version of events was correct. The Nominal Insurer, referring to the case of Mr Bader, says that if his version was correct, Mr Bader was only paying Mr Abdelahad $600 per week, and that employment was only for a limited time. The Nominal Insurer argues, however, that that was contested. It says that what is significant is that Mr Abdelahad gave direct evidence that he received $1,000 per week which, if his employment had continued beyond 20 October 2014, would have meant that having commenced on 1 September 2014, he would have well and truly exceeded the $7,500 payment level and therefore, Mr Bader would not have been an exempt employer.
The Nominal Insurer refers to the other area of dispute, which it says involved the issue of whether or not the Notice to finish work dated 19 October 2014 and allegedly given to Mr Abdelahad on 20 October 2014, was in fact given to Mr Abdelahad. The Nominal Insurer notes this was in contention before Arbitrator Homan and says that the transcript of the cross examination before her was admitted into evidence before the learned Arbitrator in the Application to Admit Late Documents (AALD) dated 25 March 2019.
The Nominal Insurer points to a letter from Mr Abdelahad’s solicitors dated 21 May 2018,[55] which says:
“The second respondent maintains he did not receive the alleged termination letter conveniently dated 19 October 2014.”
[55] AALD 30 May 2018, p 10.
The Nominal Insurer contends that it was submitted to the learned Arbitrator, and is submitted on the appeal, that this constituted a contradiction of Mr Bader’s assertion that the notice written in Arabic dated 19 October 2014 was provided on 20 October 2014. It argues this raised an immediate dispute as to whether or not employment was intended to continue into the future on a permanent basis and beyond either 20 October 2014 or some other date nominated by Mr Bader.
The Nominal Insurer contends the next issue of significance with respect to the continuation of employment was a letter sent by Mr Bader to Mr Abdelahad on 21 February 2015.[56] The Nominal Insurer quotes the following extract of the letter:
“Pursuant to your previous employment at Genuine Kitchens, and in relation to 8 kitchens job to Mr Danny Sarkis, and since you did not follow the cutting list measures and instructions that I outlined to you, which caused about 80% of the shelves and doors being cut to the wrong measure and as a result had to be replaced.
The cost of replacement came up to $6,000.00 plus GST totaling [sic] $6,600.00.”
[56] AALD 30 May 2018, p 20.
The Nominal Insurer submits this was a letter of demand and says the letter proceeds to retrospectively refer to the injury on 20 October 2014 and submits the following words are significant:
“it is my belief that you intentionally inflicted this injury on yourself, since it was scheduled that the installation of the 8 kitchens job was to commence the next day.
You used this injury to avoid the next day task which was going to reveal the wrong cuttings you made.”
The Nominal Insurer refers to the demand in the letter that Mr Abdelahad pay Mr Bader $6,600 within 21 days, noting the letter was the subject of cross examination. It submits it was relied upon by the Nominal Insurer and Mr Abdelahad to support an assertion and submission that it indicated and supported an inference that employment was to continue for some time after 20 October 2014. It says this is so as it referred to the installation of eight kitchen jobs to commence the next day and was inconsistent with an intention to terminate Mr Abdelahad’s employment as contained in the letter dated 19 October 2014.
The Nominal Insurer submits there were three significant factual disputes between Mr Abdelahad and Mr Bader shown by these documents, and they had to be resolved based upon issues of credit as it was “one person’s word against another.”[57]

Mr Bader’s general submissions

[57] Transcript 7 September 2020, 17.4.

Written submissions

With regards to Grounds 1 to 4, Mr Bader submits in summary, that the Presidential member should reject the attacks upon the factual findings, which he says are largely credit findings. Before turning to the four grounds, Mr Bader sets out submissions under the following headings:
(a)    the nature of the appeal;
(b)    the challenges to credit in general terms;
(c)    questions of fact;
(d)    challenges as to questions as to fact, and
(e)    the challenges in this case.
Under the heading “the nature of the appeal”, Mr Bader refers to s 352 of the 1998 Act and Raulston at [17], and proceeds to quote [19], [20], and [26]. He submits that an appeal as to the exercise of discretion requires an error of principle in terms of House v The King.[58]
[58] [1936] HCA 40; 55 CLR 499 (House v The King), 504–5.
In relation to “the challenges to credit in general terms”, Mr Bader notes that credit was crucial in this case.[59] He submits the challenges to the credit findings are misconceived and misunderstand the test for challenging credit findings.
[59] Referring to the transcript of 7 June 2019, 5.27, and the Nominal Insurer’s written submissions on appeal at p 3, [2].
In respect of “questions of fact”, Mr Bader notes the Nominal Insurer’s challenges to the learned Arbitrator’s findings of fact are largely credibility findings. He says the task is a difficult one in proceedings such as the present where witnesses have given oral evidence. Mr Bader submits that absent a complete lack of evidence which is a question of law, the determination as to employment and its various forms is a question of fact. Reference is made to Neil and Chin, The Modern Contract of Employment Lawbook Co, 2012 at [1.250], and their description of questions of degree as being paradigmatically factual. Mr Bader further refers to Roy Morgan Research Pty Ltd v Commissioner of Taxation[60] “where different conclusions are reasonably open to the tribunal and the determination of which of them is correct is a question of fact”, and Queensland Stations Pty Ltd v Federal Commissioner of Taxation.[61]
[60] [2010] FCAFC 52; 184 FCR 448; 268 ALR 232 (Roy Morgan), [34].
[61] [1945] HCA 13; 70 CLR 539, 552.
Mr Bader submits the factual findings are not converted into errors of fact and law “because they are used to reach some ultimate conclusion as to the exempt status of [Mr Bader]” as the Nominal Insurer suggests on page 3, [2] of its written submissions. Mr Bader contends that would mean that all factual findings relied upon to reach an ultimate conclusion would be converted into findings of mixed fact and law.
Under the heading “challenges as to questions as to fact”, Mr Bader submits that at common law there was no room on appeal on questions of fact, which were matters for a jury. He notes that historical justification is no longer relevant. He observes, however, the oral tradition of the common law is still relevant. That tradition, it is said, is one where determinations are often made upon evidence of witnesses that is seen, heard and tested. Mr Bader relies upon Abalos v Australian Postal Commission;[62] Devries v Australian National Railways Commission,[63] and Mace v Murray.[64]
[62] [1990] HCA 47; 171 CLR 167 (Abalos), 178.4.
[63] [1993] HCA 78; 177 CLR 472 (Devries), 479.
[64] [1955] HCA 2; 92 CLR 370, 378.
In his submissions under “the challenges in this case”, Mr Bader submits the Nominal Insurer does not adopt the proper test to challenge these findings. He notes the Nominal Insurer submits that the evidence was contrary to the evidence of Mr Abdelahad and/or the preponderance of the evidence.[65]
[65] Referring to Ground 1, [4], [6], [9]; Ground 2, [14], [15], and Ground 4, [21].
Mr Bader argues that even if the submissions were accepted, they would not lead to a conclusion the appeal should be upheld in the absence of a finding that the findings were contrary to incontrovertible facts or uncontested evidence. He submits the Nominal Insurer’s reliance on the alternative test “of the findings being glaringly improbabl[e] or contrary to incontrovertible facts or uncontested evidence” is misplaced. He says the reference to that test in Fox v Percy is a reference to the:
“quite rare, cases, [where] although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case”.[66] (footnote omitted)
[66] Fox v Percy, [29].
Mr Bader submits this is not the situation in the present case. He contends the Nominal Insurer did not suggest either error in Ground 2, which he says the Nominal Insurer submitted the findings of the learned Arbitrator were “contrary to the weight of evidence and is therefore an error of fact and law”. Mr Bader submits Ground 2 should be rejected without the necessity for further examination.
Mr Bader adds that the remaining challenges made by the Nominal Insurer do not claim that the findings were not contrary “to incontrovertible facts or uncontested evidence”. Mr Bader argues they accordingly fail. In any event, he says the conclusions are not glaringly improbable or contrary to compelling inferences.
Mr Bader says the determination of that threshold will determine much of the appeal. He notes the learned Arbitrator made a number of factual findings and had the advantages of seeing and hearing the witnesses. Mr Bader submits there was nothing contrary “to incontrovertible facts or uncontested evidence or even glaringly improbable or contrary to compelling inferences about the conclusions” the learned Arbitrator made. He argues the conclusions were conclusions as to facts and the Presidential member should not interfere with those findings.
In reply, the Nominal Insurer submits that it is not the case that the Nominal Insurer has misstated the grounds of appeal or has failed to suggest error, as the findings in favour of Mr Bader made by the learned Arbitrator were wrong in light of “incontrovertible facts or uncontested evidence” or were “glaringly improbable” or “contradict compelling inferences” in the case.

Oral submissions

Mr Bader commenced his oral submissions by referring to the nature of an appeal pursuant to s 352 of the 1998 Act. He notes that such an appeal is limited to an error of fact, law or discretion and to the correction of such error. Mr Bader submits that it is not an appeal by way of review or new hearing. Reference is made to Hill at [17] onwards and also [20], as well as the discussion of Whiteley Muir. Mr Bader submits Basten JA held in a normal appeal by way of rehearing, there would not be discussion as to whether the findings were open to the primary judge. He also submits his Honour further said that the difference between a rehearing and an appeal of this nature is that the test is whether the findings of fact were open to the learned Arbitrator. Mr Bader says this is a “very significant hurdle”[67] to an appellant in matters such as the present, and refers to [88] and [89] of Hill. Noting the amendment to s 352 in 2011, which Mr Bader’s counsel says from memory was after the decision of New South Wales Police Force v Winter,[68] the nature of an appeal was dramatically altered by the introduction of the last sentence of s 352(5). Mr Bader notes Basten JA’s comment at [89] in regards to Warren v Coombes[69] and Branir, and submits that Warren proceeded by way of rehearing.
[67] Transcript 7 September 2020, 48.32.
[68] [2011] NSWCA 330.
[69] [1979] HCA 9; 142 CLR 531 (Warren).
Mr Bader submits that the present case is essentially a series of complaints by the Nominal Insurer in relation to the fact finding process. He argues those complaints are not that the findings were not open, “they are really complaints about the findings being contrary to the preponderance of evidence or as otherwise described, glaringly impossible [sic, improbable]”.[70] Mr Bader refers to the Nominal Insurer’s submissions at [9] (made under Ground 1), [14], [15] (made under Ground 2) and [21] (made under Ground 4), which he says are complaints that findings were against the preponderance of the evidence. Mr Bader submits that in relation to all of those matters, on a prima facie basis, none of those, on the basis of the alleged errors give rise to a proper appeal in relation to s 352.
[70] Transcript 7 September 2020, 49.18–24.
Mr Bader acknowledges that Hill makes it clear that on an appeal such as the present matter, it must be shown that the finding was wrong. He adds that in matters where there is a weighing of the evidence and all of the discretions that are necessarily entailed in that process, to find error is a difficult task. Mr Bader contends that that task is even more difficult where there are credit findings involved, referring to Abalos and Devries and his written submissions. Mr Bader submits that in relation to credit findings, an argument that a particular finding was against the preponderance of evidence would almost never be successful because “unless there is really some complaint about the process and an error in relation to that process, the actual weighing of evidence and particularly the advantages given to the primary Judge in determining credit, and that is set out in those decisions, those make it very very difficult for an appellant to appeal credit findings.”[71]
[71] Transcript 7 September 2020, 51.23.
Mr Bader cites the decision of S.S. Hontestroom v S.S. Sagaporack[72] that McHugh J referred to in Abalos and his Honour’s statement:
“an appellate court cannot act on that evidence to reverse the finding unless it is satisfied ‘that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion’.”
[72] (1927) AC 37.
Mr Bader contends there are two aspects of this and refers to his written submissions. He says the first is the learned Arbitrator got to see the witnesses give their evidence, and so got to determine which of the two or three or more they believe and do not believe. He adds there is a further component, being that the primary decision maker “without even delving into the contest between particular parties … gets to make an impression upon the character of the individual witnesses and that’s a further additional benefit of”[73] this tradition.
[73] Transcript 7 September 2020, 52.15.
Mr Bader concedes that credit was crucial in this case. He emphasises that challenges to questions of fact are not converted into errors of law by calling them such. Mr Bader sets out the distinction between errors of fact and law. He contends that a determination of whether a person is a temporary employee, casual employee or full-time employee is a question of fact.[74]
[74] Citing Roy Morgan.
In response to the Nominal Insurer’s reliance on Fox v Percy, Mr Bader says that in relation to ‘glaringly improbable’ or ‘contrary to compelling inferences’ being confined to rare cases, it is difficult to imagine what sort of rare case that would be. He submits it is:
“difficult to understand how a fact finding process, unless of course it [fell] into the sort of error that we find in House v King that relevant material, for example, was not examined or was ignored, but it’s difficult to see how a proper fact finding process could ever lead to something being glaringly improbable or contrary to compelling inferences, but in any event that’s not the case here.”[75]

Ground One: The Arbitrator erred at [120]–[133] in accepting the Employer employed the Worker on a casual basis and a temporary basis and accepted the Employer as to credit

[75] Transcript 7 September 2020, 60.2.

The Nominal Insurer’s written submissions

The Nominal Insurer alleges the learned Arbitrator made mixed errors of fact and law in accepting Mr Bader’s evidence and finding that Mr Abdelahad was employed “on a casual and temporary basis”.[76] It says this acceptance was contrary to the evidence of Mr Abdelahad and “to the preponderance of the evidence.” The Nominal Insurer refers to Mr Abdelahad’s statement dated 12 November 2014, where he says:
“I commenced employment with Genuine Kitchen as a carpenter on a full-time basis about 20 days after I ceased employment with Riad Mahfoud. I was introduced to the boss Elias Bader … through his relatives who I knew in Lebanon. My employment with Genuine Kitchen was verbal. There was no other workers [sic] in the company only Elias Bader and myself”.[77] (the Nominal Insurer’s emphasis)
[76] The Nominal Insurer’s written submissions, [4].
[77] Mr Abdelahad’s statement dated 12 November 2014, [8], Reply, p 40.
The Nominal Insurer submits Mr Abdelahad’s evidence was a contradiction of Mr Bader’s case that Mr Abdelahad was employed on a casual basis for a limited time or temporary basis. It refers to the learned Arbitrator’s conclusion that he “[did] not see any such contradiction; after reading the whole of it”[78] (referring to Mr Abdelahad’s statement). The Nominal Insurer submits this was “wrong as a matter of fact and vitiates the conclusion that [Mr Bader’s] evidence that [Mr Abdelahad] would be employed on a casual, temporary basis.” It concludes that the learned Arbitrator erred in finding at [120] of the reasons that there was no direct evidence from Mr Abdelahad that he was employed on a full-time basis in contradiction of Mr Bader.[79]
[78] Reasons, [120].
[79] The Nominal Insurer’s written submissions, [5].
The Nominal Insurer adds that the acceptance that Mr Bader employed Mr Abdelahad on a casual basis for a limited time is contrary to the effect of the overall evidence, such that it was not reasonably open to accept Mr Bader as a witness of truth. It refers to Mr Bader’s report of injury form and the pre-injury average weekly earnings form which were both ticked “permanent”, and the employer’s report of injury form was also ticked “full-time” as to Mr Abdelahad’s employment. Mr Bader’s evidence was inconsistent with the facts of the nominated declarations of employment as “full-time” and “permanent”, while it was glaringly improbable that this nomination was an error.[80] The Nominal Insurer says these were documents that were signed by Mr Bader as having been read and attested as to the truth and quotes the declaration on both documents.
[80] Citing El Gusto Ristorante Pty Ltd v Bijas [2011] NSWWCCPD 45, [55]–[56].
The Nominal Insurer submits that both documents had the option for ticking the box marked “casual” and the employer injury claim form could nominate “temporary”. These boxes were left blank. It submits these documents were completed within one month after the date of injury and contradicted Mr Bader’s claim that Mr Abdelahad’s employment was on a casual basis and with “an intention of limited time of employment”.[81] The Nominal Insurer submits these documents were sufficient to determine that Mr Bader was not an “exempt employer”. It says the claim that these were completed by mistake is contrary to evidence, given the fact that the alleged mistake was made on two separate forms that were adopted as true and correct and Mr Bader was able to complete a statement and other documents, including an affidavit, in English.
[81] The Nominal Insurer’s written submissions, [7].
The Nominal Insurer notes Mr Bader did not use an interpreter when he was cross-examined before Arbitrator Homan in 2018, nor when providing statements and affidavit evidence. It says this meant there was an error as to credit when the learned Arbitrator found that he did not form an unfavourable impression of Mr Bader’s evidence. It argues the favourable credibility finding did not refer to evidence that Mr Bader gave in the first arbitration under cross-examination, without an interpreter, when his legal representatives were in attendance. The Nominal Insurer says that no objection was taken before the first Arbitrator on the basis that Mr Bader did not understand questions asked of him. It adds that no objection was taken by Mr Bader himself on the basis of an inability to understand English. The Nominal Insurer notes Mr Bader provided in English, and without an interpreter, a statement to factual investigators dated 10 December 2014, a written letter to the WorkCover Authority dated 14 September 2014, a statement annexed to a miscellaneous application, an affidavit, and a letter of demand to Mr Abdelahad for damages on a business letterhead.[82]
[82] Referring to the letter dated 30 May 2018, Mr Abdelahad’s Application to Admit Late Documents dated 30 May 2018, p 20.
The Nominal Insurer goes on to submit that Mr Bader’s credit as to any claim of mistake in completing documents or giving evidence due to poor English should not and could not be accepted, as the preponderance of evidence was that he did not use an interpreter to complete multiple documents in English. It says the inference that should have been made was he read and understood the employer injury claim form and pre-injury average weekly earnings form and completed these forms correctly. The Nominal Insurer argues the learned Arbitrator’s favourable finding of fact based on credit, was inconsistent with these documents and glaringly improbable.
The Nominal Insurer, referring to Whiteley Muir,[83] and Warren v Coombes[84] (as applied in Zuvela), submits that a finding of credit in favour of Mr Bader, and the consequential finding “that the ticking of the boxes ‘permanent’ and ‘full-time’ was ‘guileless’[85] was contrary to the preponderance of the evidence”, such that the decision of the learned Arbitrator was affected by error. It adds Mr Bader was an experienced business person who had owned cabinetmaking businesses since 1967 under different names and had employed at least two staff to assist his business. Citing Fox v Percy, the Nominal Insurer submits that the conclusion that Mr Bader made a mistake in completing the employer injury claim form is improbable and contrary to the compelling inference he did not have any difficulties in completing documents in English and was able to understand English.
[83] Whiteley Muir, 506.
[84] Warren, 542–3.
[85] Referring to the reasons, [124].
The Nominal Insurer submits that the learned Arbitrator’s finding that Mr Bader answered questions directly in English but could have or should have used an interpreter was without basis given the fact Mr Bader was able to answer questions directly in English. It says this conclusion was not open based on the evidence and was not a claim made by Mr Bader.[86] It was also contrary to the evidence Mr Bader completed documents without the assistance of an interpreter, including an affidavit. The Nominal Insurer says it was apparent from the cross-examination before both arbitrators that Mr Bader did not require the assistance of an interpreter and this cross-examination was conducted without objection by Mr Bader’s legal representatives.
[86] Citing Suvaal, [145] (per Callinan J).
The Nominal Insurer further submits the learned Arbitrator did not have regard to the statement of Mr Bader dated 10 December 2014 at [10], where he stated that when Mr Abdelahad commenced employment: “I told him I did not have enough work for the two of us and that he would have to work alone at times whilst I searched for more work”. It contends this statement contradicted Mr Bader’s evidence that the business was established with the intention he would work on his own and would not seek to expand. The Nominal Insurer says this contradiction was not addressed by the learned Arbitrator and the failure to address this contradiction was a significant oversight and constituted an error by failing to have regard to relevant evidence as to credibility.[87]
[87] The Nominal Insurer’s written submissions, [11].
The Nominal Insurer further complains the learned Arbitrator did not find Mr Abdelahad was not truthful in his evidence, yet rejected Mr Abdelahad’s evidence. It says this was an error in circumstances where Mr Abdelahad gave evidence that he was employed on a full-time basis. It says if Mr Abdelahad’s evidence was truthful, then his evidence on the matter of his employment had to be accepted as contradicting Mr Bader.
The Nominal Insurer’s written submissions on this ground conclude that these errors meant there was an error in finding that Mr Bader was not an exempt employer for the purposes of s 155AA of the 1987 Act. It says this has led to an error of law that Mr Bader was not liable to reimburse the Nominal Insurer under s 145 of the 1987 Act.
In the Nominal Insurer’s supplementary submissions lodged after receipt of the Commission’s transcripts of proceedings of 7 June 2019 and 5 July 2019, the Nominal Insurer further submits the learned Arbitrator’s acceptance of Mr Bader was contrary to the weight of the evidence. It says Mr Bader gave evidence through an interpreter at the arbitration hearing on 7 June 2019, but was challenged by the Nominal Insurer as to the need for an interpreter. The Nominal Insurer states the learned Arbitrator’s acceptance of the need for an interpreter erred, as it did not take into account the fact Mr Bader was asked by Arbitrator Homan at the first arbitration hearing if he was happy to give evidence in English to which he replied “yes”. The Nominal Insurer mentions Mr Bader’s affirmation to give evidence and says the fact that Mr Bader was happy to give evidence under examination in chief and in cross-examination before Arbitrator Homan was contrary to an acceptance of his credit when he sought to give evidence before the learned Arbitrator using an interpreter.

The Nominal Insurer’s oral submissions

In its oral submissions, the Nominal Insurer asserts error on the part of the learned Arbitrator in accepting Mr Bader’s evidence and credit by accepting Mr Bader employed Mr Abdelahad on a temporary basis. Referring to the principles espoused in Raulston and Whiteley Muir, the Nominal Insurer submits that those principles were recently affirmed and followed in recent presidential decisions.[88] The Nominal Insurer specifically relies upon [19] and [26] of Raulston.
[88] Candy v MC Connor Racing Pty Ltd [2020] NSWWCCPD 43, [90]–[95]; Li v Brighton Australia Pty Ltd [2020] NSWWCCPD 44, [26]–[29], and Hill, [17], [20]–[22].
The Nominal Insurer refers to Hill, at [20] and submits the learned Arbitrator erred in paragraphs [120]–[133] of the reasons in accordance with these principles, particularly Raulston.
The Nominal Insurer quoted the learned Arbitrator’s reasons at [120], and submitted that what was significant in that paragraph was the use of the word “casual”. Turning to Mr Abdelahad’s statement, the Nominal Insurer points out that Mr Abdelahad expressly stated that he was employed on a full-time basis[89] which is contradictory of the use of the word “casual” as set out in Mr Bader’s statement to investigators.[90] The Nominal Insurer argues that to assert, as the learned Arbitrator did, “in the absence of any at least expressed denial of evidence by [Mr Abdelahad] is … an error”.[91]
[89] Reply, p 40, [8].
[90] Reply, p 17, [8].
[91] Transcript 7 September 2020, 20.19.
In response to my enquiry in argument regarding the description of the terms “casual” and “full time”, the Nominal Insurer clarified that for the learned Arbitrator to assert that there was no denial was wrong in fact, particularly, referring to the learned Arbitrator’s statement “I do not see any such contradiction”. The Nominal Insurer submits this puts it too highly and disregards the contradiction and is just simply wrong. It adds that insufficient weight has been given to what was drawn to the learned Arbitrator’s attention as to the contradiction.
The Nominal Insurer again referred to the injury claim form[92] and pre-injury average weekly earnings form[93] which were completed by Mr Bader. The Nominal Insurer notes the options on the injury claim form that were ticked were “full time” and “permanent” and the options of “temporary”, or “other” were not ticked. The Nominal Insurer submits that was an option available to Mr Bader to nominate on the forms that this was a limited employment. It could have expanded on the option of temporary, but that was not adopted. The Nominal Insurer says the learned Arbitrator did not take into account or give any weight to the submission that this document was declared by Mr Bader as having been read and the information as being true and correct.[94] The Nominal Insurer argues this was submitted to the learned Arbitrator in its written submissions dated 2 August 2019[95] and it submits that that argument does not appear to have been considered, or given any weight at all, even in passing, by the learned Arbitrator.
[92] Reply, pp 24–27.
[93] Reply, pp 28–30.
[94] Reply, p 26.
[95] At p 8, [19] of the Nominal Insurer’s written submissions before the learned Arbitrator.
In other words, the Nominal Insurer submits the acceptance of Mr Bader’s explanation that this was simply a mistake overlooked material facts. It says these material facts were the declaration and the fact that this mistake was apparently made on at least two occasions in those forms by the person who was the employer. It argues the learned Arbitrator gave undue or no weight at all to that declaration, despite it being drawn to the learned Arbitrator’s attention in written submissions. The Nominal Insurer submits that “those declarations are weighty documents … [which] attest to the representations made therein but they simply do not seem to have factored at all in the reasoning process of the Arbitrator.”[96] This, the Nominal Insurer argues, was an attack on Mr Bader’s credibility and needed to be dealt with in some way by the learned Arbitrator.
[96] Transcript 7 September 2020, 26.8.
The Nominal Insurer further contends error on the part of the learned Arbitrator in his reasons at [123] that Mr Bader’s credit was impugned by the use of an interpreter to give evidence. It notes Mr Bader gave evidence before Arbitrator Homan without an interpreter. It says he provided a number of documents, including an affidavit and wrote a letter of demand for $6,600 that was written in English. The Nominal Insurer notes these appear to have been done without the use of an interpreter. It argues these were not short documents; they were business records, a precursor to litigation, and an affidavit, as well as testimony before Arbitrator Homan.

I now turn to a consideration of each ground of appeal.

As to Ground One

The Nominal Insurer alleges that the learned Arbitrator made mixed errors of fact and law in accepting Mr Bader’s evidence when he found that Mr Abdelahad was employed on a casual and temporary basis.[134]
[134] The Nominal Insurer’s submissions, [4].
The Nominal Insurer refers to Mr Abdelahad’s statement of 12 November 2014 and his assertion contained therein that he was employed on a full-time basis and that this evidence contradicted Mr Bader’s case. In support of Mr Abdelahad’s assertion, the Nominal Insurer points to Mr Bader’s report of injury form and pre-injury average weekly earnings form which both ticked the permanent and full-time boxes. The Nominal Insurer also makes much of the use by Mr Bader of an interpreter in these proceedings but not in the previous proceedings before Arbitrator Homan in 2018. In short, this submission is designed to undermine Mr Bader’s explanation as to why these forms were not correctly completed, that is by indicating that Mr Abdelahad’s engagement was on a basis other than permanent or full time. The clear inference from this submission is that Mr Bader had no need of an interpreter and, being an experienced businessman, at all times had sufficient English skills both oral and written to understand the full purport and effect of what he was saying or signing.
Finally, an error is alleged in that the learned Arbitrator did not find that Mr Abdelahad was not truthful, yet the evidence was rejected. The submission[135] says that if Mr Abdelahad’s evidence was truthful, then evidence on this matter of employment had to be accepted as contradicting Mr Bader.
[135] The Nominal Insurer’s submissions, [12].
Dealing with this latter point, with respect to the Nominal Insurer, this is not the process that was undertaken by the learned Arbitrator. Rather, the learned Arbitrator in a carefully reasoned decision examined the evidence of both Mr Bader and Mr Abdelahad. He noted that the evidence of both was in some respects unsatisfactory however it is clear that the learned Arbitrator did prefer Mr Bader’s evidence to that of Mr Abdelahad. It is not correct for the Nominal Insurer to assert that Mr Abdelahad’s evidence was rejected.
It is noteworthy that the learned Arbitrator heard evidence from both Mr Bader and Mr Abdelahad. Both were cross-examined. Mr Bader, with some force, relies upon a number of binding authorities which deal with the limitations placed upon appellate courts when it comes to overturning factual findings.[136] In the section of this decision beneath the heading “Principles on Appeal” (see paras [58]–[63]), I have set out in terms the approach which this Commission has taken with regards to s 352(5) of the 1998 Act and appeals made thereunder.
[136] Notice of Opposition, [18]–[20].
Under Ground 1, a number of factual contests which were conducted below remain in contest on appeal. It is for the appellant to establish error in the Raulston sense.
I am also paying much regard to the dicta of Basten JA in Hill (see [63] above) where his Honour discusses that whether findings of fact were open to a trial judge is a concept which is not out of place in determining an appeal from factual findings under s 352(5). I respectfully agree with and adopt that reasoning.
The learned Arbitrator, at [114]–[164] of the Reasons, in some detail and with great care examined the question as to whether Mr Bader was an exempt employer. This involved dealing with the credit dispute between Mr Bader and Mr Abdelahad. The Nominal Insurer, as I have described above, relies upon Mr Abdelahad’s statement of 12 November 2014 and the marking of his employment status by Mr Bader into documents.
It is quite true that these documents describe what the Nominal Insurer alleges. However, issue with both Mr Abdelahad’s description of his employment basis and how the documents were completed in the way that they were was clearly taken by Mr Bader in the proceedings.
The learned Arbitrator with respect to the question of the nature of Mr Abdelahad’s employment, that is was it casual, temporary or permanent, deals with this matter in some detail, particularly at [121] and [122] of the Reasons. He also deals with Mr Abdelahad’s statement of 12 November 2014 upon which reliance is now placed by the Nominal Insurer at [120] of the Reasons. Ultimately in weighing up these matters, the learned Arbitrator reached a view that “it is likely he did inadvertently fail to tick the ‘temporary’ box. I accept his evidence in that respect too.”[137] At [124] of the Reasons, the learned Arbitrator agrees with the submission that it is often a matter of legal argument as to what the terms associated with employment law, namely part-time, permanent, full-time and casual, actually mean. It is obvious that the Arbitrator gave Mr Bader the benefit of the doubt when he reviewed all of the evidence. At [125] of the Reasons, he refers to the interview with Mr Gottstein on 10 December 2014 where it was asserted that Mr Abdelahad was employed on a casual basis. Ultimately the learned Arbitrator was satisfied that Mr Abdelahad had been told that he could not be employed on a permanent basis and that that led to a reasonable person believing that the total amount of wages would be no more than $7,500.[138]
[137] Reasons, [124].
[138] Reasons, [127].
The Nominal Insurer asserts these pieces of evidence as if they were uncontradicted. They were put in issue and the learned Arbitrator, as he was duty bound to do, carefully weighed the explanation contrary to what appeared in those documents. The learned Arbitrator accepted that explanation and having regard to the evidence put forward by Mr Bader, this was certainly open for the learned Arbitrator to make a finding as he did. I do not accept the Nominal Insurer’s allegation that the mistakes made in filling out the two documents were improbable.
As I have set out above, an attack is made upon Mr Bader for the use of an interpreter when being cross-examined. The learned Arbitrator dealt with this submission in detail at [123] of the Reasons. The telling finding made by the learned Arbitrator in this regard, which has not been moved on appeal, is as follows:
“In my opinion, the applicant did not seek to use the benefit of the interpreter for any reason other than to assist him when he needed it. At times, he answered questions directly in English without using the interpreter, perhaps when he could or should have. He has conceded that he is able to speak English, but it is not his native tongue.”[139]
[139] Reasons, [123].
This finding by the learned Arbitrator was certainly available to him. He had the full benefit of hearing Mr Bader’s evidence and judging for himself the need or not that Mr Bader had to be assisted by an interpreter. In my opinion the learned Arbitrator is the person best placed to evaluate the issue raised by the Nominal Insurer regarding the use of the interpreter. In coming to this view, I am mindful of the various High Court authorities regarding how an appellate court should approach findings of fact at first instance. I do not consider that the Nominal Insurer has been able to displace the findings with respect to the use of the interpreter in the terms required by those authorities. In particular, in Abalos, Justice McHugh said that:
“an appellate court cannot act on that evidence to reverse the finding unless it is satisfied ‘that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion’”.[140]
This with respect is the situation here; the learned Arbitrator has carefully considered the evidence before making the finding of fact and it cannot be said that the advantage enjoyed by the learned Arbitrator has been displaced.
[140] Abalos, [29].
Ground 1 has not been made out and is thus dismissed.

As to Ground Two

As set out above, Ground 2 takes issue with the learned Arbitrator’s interpretation and inferences relating to Mr Bader’s tax return for the financial year ending in 2015. The gravamen of the Nominal Insurer’s charge in this regard is that the tax return reveals a successful business “that would be more likely to employ persons with wages paid in excess of $7,500 for the year ended 30 June 2015”[141] (emphasis added). The clear inference from this submission is that Mr Abdelahad could not be the only employee working for Mr Bader’s business during this financial year, simply based upon an examination of the employer’s tax return.
[141] The Nominal Insurer’s submissions, [15].
The learned Arbitrator details his conclusions regarding the tax return at [136] of the Reasons. It is alleged that these conclusions are “contrary to the preponderance of the evidence”.[142]
[142] The Nominal Insurer’s submissions, [15].
In this appeal point, the appellant is directly challenging the construction of the tax return. The inference which is being invited is that a business with an income of $234,935 must have had staff who were paid wages in excess of $7,500. This is the inference which the Arbitrator was asked to draw from this document and which he declined to do.
At [136] of the Reasons, the learned Arbitrator details, as far as he can, the constituent portions of the total business income. There is an amount left for “all other expenses” of $153,537. The Arbitrator then found as follows:
“I do not see any detail of those other expenses. I may be able to assume that in a business such as kitchen installation, the cost of building materials and structures would be high. But I do not need to make any such assumption. There was no deeper analysis of this tax return by either party. Partly for this reason, I do not see the tax return is of assistance either way. Assuming the regularity of the claimed expenses, and there is no evidence otherwise, it may be that $234,935 per annum for total business income is consistent with the applicant’s position that he worked alone and did not really need an employee.”[143]
[143] Reasons, [136].
To this end I would interpolate the following evidence from Mr Abdelahad which can be found in his statement of 12 November 2014:
“My employment with Genuine Kitchen was verbal. There was no other workers [sic] in the company only Elias Bader and myself.”[144]
[144] Mr Abdelahad’s statement dated 12 November 2014, [8], Reply, p 41.
This evidence of Mr Abdelahad is consistent with that of Mr Bader, namely, that there were no other employees other than Mr Abdelahad during the period that he worked for Mr Bader. There is no evidence that I have been taken to, nor was the learned Arbitrator taken to any other evidence, which revealed the identity of any other employee during the financial year concerned. Rather, it has been the approach of the appellant both at first instance and on appeal to press that inferences be drawn which arise from a consideration of the tax return itself.
In these circumstances I fail to see how the manner in which the learned Arbitrator dealt with the income tax return was “contrary to the preponderance of the evidence” as is alleged by the appellant. To the contrary, I consider that the learned Arbitrator’s findings at [136] of the Reasons were not only available to him but were in fact consistent with the evidence.
No error has been revealed with respect to how the learned Arbitrator dealt with the income tax return. As a result, Ground 2 must fail.

As to Ground Three

Central to the complaint in Ground 3 is that Mr Abdelahad’s solicitor’s letter of 21 May 2018 was “admitted into evidence without objection”. This assertion is made by the Nominal Insurer on a number of occasions. The Nominal Insurer in this ground takes issue with the finding made by the learned Arbitrator that Mr Abdelahad did not adequately contradict the service of the notice of termination.
With respect to the Nominal Insurer, this submission fundamentally misunderstands the nature of proceedings in this Commission and the fact that s 354(2) of the 1998 Act expressly states that the Commission is not bound by the rules of evidence. The practice in the Commission is that the bundle of documents constituted by either an Application to Resolve a Dispute, a Reply, or an Application to Admit Late Documents are all before the Commission consistent with the terms of s 354(2) of the 1998 Act. In this case, the material before the learned Arbitrator was Mr Bader’s amended miscellaneous application and the replies filed by the two respondents. The Nominal Insurer’s submission, which maintains that the solicitor’s letter was admitted without objection, seeks to import into this jurisdiction all of the consequences that arise when the rules of evidence do apply to a document which is admitted without objection. That is, the party who does not object to the tender of that material generally cannot later take issue with the veracity of the document unless consent to the tender was conditional.
In Sutton, Allsop P warned of the danger of reintroducing the rules of evidence where they had been excluded by statute. With respect to the Nominal Insurer, this is precisely what this submission invites in regard to the solicitor’s letter.
However the letter is of use to the Commission in that it is at the very least alerting the reader of the document that issue has been taken with respect to the notice of termination. Properly understood, the solicitor’s letter became a matter for weight. At [150] of the Reasons, the learned Arbitrator approached the matter of the letter in the following way:
“I accept that the worker’s solicitor would not have made that submission without instructions from him. But it is not evidence.”
This is an approach with which I respectfully agree. Before the learned Arbitrator were conflicting statements regarding this issue which were dealt with from [146]–[156] of the Reasons. The point surrounding the termination letter goes directly to the “reasonable grounds for believing” basis for the exemption found in s 155AA of the 1987 Act. In dealing with the termination letter, the learned Arbitrator said as follows:
“However, even if one were to accept that this submission from the worker’s solicitor could be taken as a denial of the worker receiving the notice to finish, such submission still does not extend to deny the evidence of the applicant that he had already requested, on more than one occasion, for the worker to find other work and that he needed to terminate the worker’s employment. If this evidence from the applicant is accepted, and I do accept it, it would still be enough for me to be persuaded, taking all other circumstances into account as well, that there were the requisite ‘reasonable grounds for believing…’, because it would have been clear enough that the applicant was intending to terminate the employment, whether by way of the ‘notice to finish’ or not.”[145]
[145] Reasons, [151].
This is a succinct statement of the learned Arbitrator’s duty with respect to a s 155AA case as expounded by President Keating (as he then was) in Kula. The learned Arbitrator considered all of the evidence, including the solicitor’s letter, in reaching his ultimate conclusion that the Nominal Insurer and worker had not adequately contradicted the service of the notice of termination. As can be seen, the learned Arbitrator considered all of the evidence before reaching this conclusion.
Allied to this appeal ground is the Nominal Insurer’s complaint about a lack of procedural fairness said to be afforded by the learned Arbitrator. This complaint, so it goes, is that the learned Arbitrator failed to raise a concern about the letter from Mr Abdelahad’s solicitors being in evidence when it was admitted without objection. As I have referred to above, it is incorrect for the Nominal Insurer to allege that the letter was “in evidence” in the sense that the rules of evidence apply. Clearly the letter was before the learned Arbitrator and he paid careful regard to construing the letter at [150]–[152] of the Reasons. It seems to me clear from a reading of the learned Arbitrator’s decision that the letter was before him (though not in the strict evidentiary sense alleged by the appellant) and that he having considered that letter along with other matters accorded it little weight. But it is clear that the learned Arbitrator did deal with Mr Abdelahad’s denial regarding the termination letter in terms and there is thus no denial of procedural fairness as alleged or at all.
In relation to the Nominal Insurer’s supplementary submissions and the issue of procedural fairness, the Nominal Insurer states that it reserved a right to raise further issues in the appeal, including additional appeal grounds, following receipt of the transcript. I note in Handley v Canterbury City Council,[146] Wood DP noted:
“The opportunity provided to the appellant in a timetable issued in respect of the appeal is intended to give the appellant the opportunity to respond to matters raised by the respondent which, if not responded to by the appellant, would result in a degree of procedural unfairness. It is not an opportunity to raise fresh matters or matters arising from the transcript of the arbitral proceedings. The Commission’s practice is consistent with the procedures adopted in many other courts and tribunals.”
[146] [2020] NSWWCCPD 59, [87].
It refers to clause 27 of Practice Direction No 6 which allows supplementary submissions to be provided following receipt of transcripts. It says that within Ground 3, the asserted error as to the finding that there is no adequate contradiction, the Nominal Insurer says there was a denial of procedural fairness because no indication was given by the learned Arbitrator to the parties that he was concerned the letter dated 21 May 2018 was not a contradiction of the alleged letter dated 19 October 2014 giving notice to cease work.
Once these complaints fall away, it can be seen that this ground has no basis.
Ground 3 is dismissed.

As to Ground Four

At issue in Ground 4 is an interpretation of a letter of demand sent by Mr Bader to Mr Abdelahad dated 21 February 2015. This was a letter in which Mr Bader made a number of claims adverse to the worker and was claiming damages from him. The appellant maintains that the terms of the letter of demand reveal an ongoing need for Mr Abdelahad to continue working and that this would negate Mr Bader’s claim that he was an exempt employer. Central to this challenge is how the learned Arbitrator construed this correspondence. The section of the decision under challenge in Ground 4 can be found at [158] of the Reasons which reads as follows:
“However, with reference to the main issue in the case, this letter really only amounts to the worker having more work after 20 October 2014 – but only specifically referring to the next day. This is not inconsistent with my earlier analysis and findings that the applicant had intended to finally force the termination of the workers employment by 24 October 2014.”
In the preceding paragraph, that is [157] of the Reasons, the learned Arbitrator construed the letter of demand, finding that it was a “side issue”.[147]
[147] Reasons, [157].
The Nominal Insurer cross-examined Mr Bader about this correspondence. Of relevance is the cross-examination of Mr Bader on 7 June 2019 at page 32 of the transcript:
“MR COMBE: That letter plainly says that it was scheduled that there would be an installation of eight kitchen jobs commencing the next day, being after 20 October 2014. That’s what it says, doesn’t it?
INTERPRETER: They were manufactured and installed before – installed before that.
MR COMBE: That letter is signed by you, isn’t it?
INTERPRETER: But we and – me and Botros installed some of – parts of it. We manufactured all of them, two kitchens, we installed – me and Botros installed two kitchens, and the rest, Phillip [Kass] installed them.
MR COMBE: Are you saying Phillip [Kass] did other installations for you?
INTERPRETER: He’s installed, we not installed it.
MR COMBE: So you were busy enough to have to employ Phillip [Kass] to do the other installations, is that your evidence?
APPLICANT: Phillip [Kass] didn’t work in the factory. Phillip [Kass] only just – we – we brought in him to do the installation.”[148]
[148] Transcript 7 June 2019, 31.22–32.25.

In this respect, Mr Bader’s evidence is telling. There was no issue in the proceedings that Mr Kass was not an employee, he was a contract installer. This evidence reveals that it was Mr Kass who was intended to do the installation of six of the kitchens with Mr Abdelahad and Mr Bader having done two.[149] This evidence makes it clear that Mr Kass was the fellow who was performing the installation. Once this is accepted, it is clear why the learned Arbitrator found that the letter of demand was a side issue. This letter does not serve to otherwise undermine the earlier analysis that the learned Arbitrator had made regarding the issues in dispute.
[149] Transcript 7 June 2019, 32.9–13.
The Nominal Insurer asserts that “[t]his finding by Arbitrator Perry was an error as it was contrary to the preponderance of that letter when read as a whole and was glaringly improbable … The compelling inference is that employment would continue for some time beyond the ‘next day’ given the number of jobs … The letter was evidence the employer was not an exempt employer.”[150] In effect, the Nominal Insurer is attempting to elevate the contents of this correspondence into an admission made by Mr Bader against interest. I do not consider the document has that quality and in any event, as I have described above, the rules of evidence do not apply in these proceedings. The terms of this letter are hard to reconcile with the other evidence, and in particular the cross-examination undertaken of Mr Bader which I have set out above. Indeed this cross-examination undermines the assertion found in the Nominal Insurer’s submissions at [21] that there was sufficient work to keep Mr Abdelahad employed.
[150] The Nominal Insurer’s submissions, [21].
The findings made by the learned Arbitrator with respect to this letter were certainly available to him and in particular, having heard the evidence of both Mr Abdelahad and Mr Bader. It cannot be said that the learned Arbitrator was wrong to give the letter little or no weight having undertaken the analysis that he did of the evidence generally.
No error of approach has been revealed in terms of how the letter was dealt with. Ground 4 is dismissed.

As to Ground Five

Ground 5 was not pressed by the Nominal Insurer. As a matter of formality, Ground 5 is also dismissed.

DECISION

The Certificate of Determination dated 25 October 2019 is confirmed.

Judge Phillips

PRESIDENT

10 December 2020