Yousif v Cameron Sandy t/as Cameron Sandy Painting & Decorating
[2025] NSWPICPD 46
•29 May 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Yousif v Cameron Sandy t/as Cameron Sandy Painting & Decorating [2025] NSWPICPD 46 |
APPELLANT: | Sami Matti Yousif |
FIRST RESPONDENT: | Cameron Sandy t/as Cameron Sandy Painting & Decorating |
SECOND RESPONDENT: | Workers Compensation Nominal Insurer |
INSURER: | Uninsured |
FILE NUMBER: | A1-W4272/24 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 29 May 2025 |
ORDERS MADE ON APPEAL: | 1. The name of the first respondent in the proceedings below and in the appeal is amended to read “Cameron Sandy t/as Cameron Sandy Painting & Decorating”. 2. The appellant’s application to admit further documents is refused. 3. The Member’s Certificate of Determination dated 19 August 2024 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Procedural Direction WC 3 – requirement to identify how the purported error occurred – not an error to fail to address a submission not made – Brambles Industries Limited v Bell [2010] NSWCA 162 – where the evidence is unreliable it is appropriate to look to the objective evidence to find corroborative evidence – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (Ali) applied – whether error in a determination as to whether a person is a worker or deemed worker – section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and cl 2 of Sch 1 to the 1998 Act – application of factors identified in Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4 – Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr B Necovski, counsel | |
| Andriano & Associates | |
| First Respondent: | |
| Mr P Macken, solicitor | |
| Leigh Virtue & Associates | |
| Second Respondent: | |
| Mr D Stiles, counsel | |
| Hicksons Lawyers | |
DECISION UNDER APPEAL: | Yousif v Cameron Sandy Painting & Decorating [2024] NSWPIC 448 |
MEMBER: | Ms S Jones |
DATE OF MEMBER’S DECISION: | 19 August 2024 |
INTRODUCTION AND BACKGROUND
Mr Sami Matti Yousif (the appellant) brought proceedings in the Personal Injury Commission (the Commission) in respect of an injury suffered by him when he fell from a pergola while painting a house on 2 June 2021. The appellant asserted that at the time of the injury he was either employed by Mr Cameron Sandy, who traded under the business name of Cameron Sandy Painting & Decorating (the first respondent) or was a deemed worker of the first respondent in accordance with cl 2 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The first respondent did not hold a valid workers compensation policy at the time of the injury. As a consequence, the appellant made a claim for compensation on the Workers Compensation Nominal Insurer (the second respondent) who denied liability for the claim. Both the first and second respondents denied that the first respondent employed the appellant and denied that the appellant was engaged by the first respondent as a deemed worker.
The dispute proceeded to an arbitration hearing before the Member, who delivered a Certificate of Determination on 19 August 2024 in which she determined that the appellant was not a worker or a deemed worker within the meaning of the 1998 Act and entered an award in favour of both respondents.
The appellant appeals that decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both the appellant and the second respondent are content for the appeal to be determined on the basis of the documents and submissions made and say that the appeal does not require an oral hearing. The first respondent submits that the matter is not suitable for a determination ‘on the papers’ because the appellant seeks to rely upon additional documents which he wishes to address.
I have determined below that the further documents sought to be adduced in the appeal are not to be admitted.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, including submissions as to whether the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD AND OTHER PRELIMINARY MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The name of the first respondent
In this appeal and in the proceedings below, the first respondent was identified as “Cameron Sandy Painting & Decorating”, which is not a legal entity. Following the Commission’s enquiry as to the correct legal entity of the first respondent, the first respondent’s legal representatives confirmed that, as the business was not incorporated, the correct name of the first respondent was “Cameron Sandy trading as Cameron Sandy Painting & Decorating.”
The name of the first respondent in the appeal and in the proceedings below is therefore amended to read “Cameron Sandy t/as Cameron Sandy Painting & Decorating”.
THE EVIDENCE
The appellant’s application to admit further documents on the appeal
The appellant seeks to have admitted into evidence additional taxation returns in respect of the financial years ending 30 June 2018 to 30 June 2020. The appellant submits that the documents were received by the appellant’s legal representative “shortly” prior to the arbitration but were not included in the documents relied upon by him because of an omission by the appellant’s legal representatives. The appellant asserts that the failure to admit the documents would cause him a substantial injustice in that the documents disclose that he was not carrying on the business of a painter in the years from 2018 to 2020, and thus a finding that he was a deemed worker was “inevitable”.[1]
[1] Appellant’s submissions, [12].
The appellant refers to the Member’s reasoning at [125] that, in a statement dated 24 July 2024, the appellant corrected his earlier statement that he was “doing work as a painter as part of [his] normal business … because [his] normal business was as a painter”,[2] and he denied having worked as a painter despite having received a painting licence in 2016.
[2] Appellant’s statement dated 8 August 2022, second respondent’s Reply to Application to Resolve a Dispute (reply), p 14, [45].
The admission of the further documents is opposed by the first respondent. The first respondent points out that the appellant cannot say that the evidence was not available to him prior to the arbitration. The first respondent says that, in those circumstances, the appellant is required to establish that a substantial injustice would result if the documents were not admitted. The first respondent submits that the documents should not be admitted because:
(a) they do not establish that the Member’s decision was erroneous;
(b) they do not cover the period from the time the appellant completed his painting course and registered an Australian Business Number, so that they are not comprehensive;
(c) they only record certain financial matters and fail to show that the appellant was not conducting a business as a painter;
(d) the later taxation returns were the subject of submissions in the arbitration and the first respondent has not had the opportunity to make submissions about this further material, and
(e) their admission would cause substantial prejudice to the first respondent.
The second respondent also objects to the admission of the further documents. The second respondent refers to r 123(1)(iv) (sic, r 123(1)(b)(iv)) of the Personal Injury Commission Rules 2021 and s 352(6) of the 1998 Act. The second respondent submits that in accordance with s 352(6), the appellant requires leave to adduce the further evidence and that leave “is not to be granted unless the Commission is satisfied that the evidence concerned was not available to the party or could not have been reasonably obtained by the party before the proceedings concerned, or that failure to grant leave would cause substantial injustice in the case”.[3]
[3] Second respondent’s submissions, [3].
The second respondent says that the documents were the appellant’s personal income taxation returns and were clearly available to him prior to the arbitration, and there is no explanation from the appellant as to why the appellant did not seek to adduce that evidence in the proceedings below. The second respondent asserts that, in those circumstances, the only basis upon which the documents can be admitted is that a failure to admit the documents “would cause a substantial injustice in the case.”[4]
[4] Second respondent’s submissions, [6].
The second respondent cites the decision of the NSW Court of Appeal in CHEP Australia Limited v Strickland[5] and submits that the appellant must show that the evidence, if admitted, would have led to a different result. The second respondent refers to his substantive submissions made on appeal and asserts that the admission of the fresh evidence, being the appellant’s taxation returns from 2018 to 2020, would not lead to a different outcome and thus leave should not be granted.
[5] [2013] NSWCA 351 (Strickland), per Barrett JA, [27]–[34].
The documents sought to be adduced
The first taxation return was for the financial year ending 30 June 2019 and bore the appellant’s name, address and date of birth. His main salary and wages occupation was recorded as an office administrator paid by Sydney Plumbing Patrol Pty Ltd (Plumbing Patrol). His income was from that source with some minor deductions recorded. Under the “Business and professional items” section, the description of the main business or professional activity was described as “Painting and decorating services”.[6] The document was not signed by the appellant or the taxation agent but was dated 4 June 2024.
[6] 2019 taxation return, p 5, [P2].
The second taxation return was for the financial year ending 30 June 2020 and also bore the appellant’s name, address and date of birth. The appellant’s main salary and wage occupation was described as a “Plumbers assistant” and the payer of the salary or wage was again listed as Plumbing Patrol. The appellant claimed a small business income offset of $1,961 and declared other income of $1,700 from selling copper. The description of the main business or professional activity was “Metal Waste and Scrap Wholesaling”. At page 9 of the return, it was noted that this return was an amended return because the appellant had previously omitted his income from sales of second-hand metal. That document was not signed or dated by the appellant or the appellant’s accountant.
Consideration
Section 352(6) of the 1998 Act provides that:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
In the appellant’s submissions, he concedes that the two documents that are the subject of this application pre-date the arbitration hearing. The documents are plainly not fresh evidence or additional evidence that was not available to the appellant or could not have been obtained by the appellant before the proceedings commenced. They were clearly available to the appellant to adduce into evidence and the omission by legal representatives to do so is not a sufficient excuse to have them admitted on appeal. The first limb of s 352(6) is therefore not satisfied so that it is necessary to determine whether a failure to grant leave to admit the documents would cause a substantial injustice in the case.[7]
[7] Strickland.
In Strickland, Barrett JA discussed the test to be applied in a consideration of whether the failure to admit late documents would cause a substantial injustice. His Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[8]
[8] Strickland, [30]–[31].
Deputy President Roche also made the following useful observations in Malivanek v Ring Group Pty Ltd:[9]
“I note, in passing, that it will only be in the most exceptional case that evidence of the kind sought to be tendered on appeal in this case, that is, evidence that was available at the arbitration to deal with an issue that was fully argued at the arbitration, will be allowed into evidence on appeal as additional evidence. Parties are reminded, yet again, that arbitrations are not a preliminary hearing where they can await the outcome and then seek to tender on appeal evidence that was readily available at the arbitration.”[10]
[9] [2014] NSWWCCPD 4 (Malivanek).
[10] Malivanek, [113].
Thus, in accordance with the observations of Barrett JA and consistent with the submissions made by the second respondent, in order to have the documents admitted it is necessary for the appellant to establish that the documents, if admitted, would result in a different outcome.
The taxation return for the year ending 30 June 2019 describes the appellant’s main business or professional activity as “Painting and decorating services”. In the context of the appellant’s assertion that he had not performed painting and decorating since 2017, the document does not assist the appellant’s case. I note in passing that the document is dated 4 June 2024, three years after the injury and well after the appellant made his claim for compensation in which he asserted that he was a deemed worker and that he had not performed painting and decorating work since 2017.
The taxation return for the financial year ending 30 June 2020 was in similar terms to the subsequent return for the year ending 30 June 2021, which was in evidence before the Member. The Member considered the 2021 document in her assessment of whether she was satisfied that the appellant was a deemed worker. She identified a number of assertions made by the appellant in his statements that contradicted his submission that he never worked as a painter until 1 June 2021, he did not advertise his services, and he did not carry on a painting business at the time of the injury. She noted that the appellant described his “business activity” as that of a painter and “always” worked with a boss, and that those parts of his statement were not retracted. The Member observed that the taxation records were evidence that the appellant was not carrying on business as a painter but were inconsistent with the appellant’s assertion in the Uninsured Liabilities Worker Claim form (the Claim Form) that he was not working. The Member also took into account that the payslips in evidence showed that he was in fact working.
The Member concluded that the evidence caused her to draw a negative inference as to the appellant’s credit and to conclude that she would have been assisted by the appellant’s bank records that might have provided actual evidence of the appellant’s income and business activity. In those circumstances, I do not consider that the admission of the earlier taxation returns would result in a different outcome. I therefore conclude that failure to admit the documents would not cause a substantial injustice in the case and the documents are not admitted.
The evidence adduced
The issues raised in the appeal are limited to the question of whether the appellant was a deemed worker, and (in submissions made faintly) appear to perhaps raise an issue as to whether the appellant was a worker within the meaning of s 4 of the 1998 Act. It is therefore not necessary to refer to the medical evidence and other evidence adduced in respect of the remaining issues that were in dispute before the Member. The summary of the evidence that follows is relevant to the appeal.
The appellant’s statements
The appellant provided a statement dated 8 August 2022.[11] He stated that he did not require an interpreter for the interview. He said that he was legally represented, and his legal representative would review the statement before he signed it. He advised that he came to Australia in 2006 or 2007, attended Granville College on a part time basis for approximately three years and became a qualified painter.
[11] Second respondent’s reply, pp 8–15.
The appellant described how he was looking for work as a painter and a friend introduced him to the first respondent who operated a painting business. He said that the first respondent offered to pay him $40 per hour. The appellant asserted that the first respondent did not ask for an Australian Business Number (ABN), his tax file number or details of any insurances. The appellant stated that the outcome of the job was not discussed, there was no discussion about sick leave or annual leave, the first respondent required him to work from 7 am to 3 pm and gave him instructions on what to do, what tasks to perform and how to perform them. He confirmed that the first respondent controlled what he did by telling him where to go and what he was required to do, what time to start and finish and by supervising him. He said that he was not required to wear a uniform. The appellant indicated that he worked an eight-hour day and was to be paid an hourly rate. He said it was his understanding that he was exclusively working for the first respondent and denied that he was working in his own business. He stated that he did not have any other jobs and was not seeking other work at the time he worked for the first respondent.
The appellant said that on the first day on the job, the first respondent instructed him to paint the front of the house and provided him with the paint and painting tools. The appellant stated that the first respondent left but returned at the end of the day, instructing him to put the tools away and to cease work for the day.
The appellant described how, on the second day (2 June 2021), he arrived at the site at 7.30 am and the first respondent instructed him to paint the inside and outside of the house. He indicated that the first respondent then asked him to climb a ladder and paint a part of the pergola. He said that he was walking on the pergola while carrying the tin of paint and lost his balance, falling through a hole to the ground. He said that he heard the SafeWork NSW investigator who came to the site ask the first respondent why he had directed the appellant to work on an unsafe site.
The appellant stated that “I was doing work as a painter as part of my normal business, when I was injured, because my normal business was as a painter”[12] and “My business activity was the same as my employers, because we are both painters.”[13] He said that he did not pay any of his hourly rate to any other person, he did not have any insurance and although he had a painting licence, he did not require it. He added that he did not advertise his services as a painter, did not have to give any warranty in respect of the work done and was not registered for Goods and Services Tax (GST).
[12] Appellant’s statement dated 8 August 2022, second respondent’s reply, p 14, [45],
[13] Appellant’s statement dated 8 August 2022, second respondent’s reply, p 14, [52],
The appellant denied having advertised his work anywhere since 2017. He asserted that he could refuse the work offered but did not do so because he wanted the work.
The appellant advised that after the injury, his accountant approached the first respondent for payment of the money he was due for the work performed. He said that the only work he had done following the injury was performing part-time paperwork for his son’s business.
The appellant indicated that he was advised by his accountant to obtain an ABN in 2016, but he had never used it.
The appellant provided a further statement dated 27 May 2024.[14] He stated that he did not require an interpreter for the interview because his “English [was] good”.[15] The appellant repeated much of the evidence provided in the previous statement, including that he was performing work as a painter as part of his business because that was his normal job.
[14] Application to Resolve a Dispute (ARD), pp 1–5.
[15] ARD, p 1, [3].
The appellant indicated that he was advised by his accountant to obtain an ABN, and it was also a requirement of the TAFE course he was doing. He said that he obtained it in approximately 2016, but he had never used it. The appellant referred to the statement evidence provided by the first respondent and denied that the first respondent had ever asked him if he had his own company and denied that he told the first respondent that he had his own painting company. He further denied that the first respondent asked him whether he held his own insurance policies and said that there was no discussion about sick leave or annual leave entitlements. He referred to a tax invoice his accountant had sent to the first respondent because he had not been paid by the first respondent for the work he performed.
The appellant provided a third statement dated 22 July 2024 in which he confirmed that his accountant had forwarded a tax invoice for the work he did to the first respondent because the appellant had not been paid by the first respondent.[16] In the same bundle of documents, the appellant lodged a fourth statement dated 24 July 2024. He stated that in his statement dated 27 May 2024, he had made “an error” at paragraph [43]. In that paragraph the appellant stated that he was doing work as a painter as part of his normal business when he was injured, because his normal business was as a painter.
[16] Correspondence lodged in the Commission, 25 July 2024.
He said that:
(a) even though he took out a painting licence in 2016, “painting was not part of [his] business”;
(b) he never worked as a painter before commencing with the first respondent on 1 June 2021, and
(c) his usual work was performing administrative work in his son’s business.
The first respondent’s statements
The first respondent made a statement dated 22 August 2022, signed by him on 31 August 2022.[17] He confirmed that he was the owner of the business known as Cameron Sandy Painting and Decorating. He said that the appellant was introduced to him by another sub-contractor, Mr Mokhes Arabou (Mark) as a painter looking for work. He stated that in a telephone conversation with the appellant, the appellant informed him that he had his own painting business, he was experienced, he had insurance and an ABN, and he charged GST.
[17] Second respondent’s reply, pp 17–26.
The first respondent indicated that he understood that the appellant would submit his tax invoices to him, and he would then pay the invoice, as was his usual practice.
The first respondent advised that, on the second day the appellant attended the work site, it was evident to the first respondent that the appellant was not an experienced painter, and he formed the view that he would not ask him to return.
The first respondent described how the appellant’s injury occurred. He stated that after the appellant fell, he was taken to the Royal North Shore Hospital. He indicated that an inspector from SafeWork NSW attended the site on 3 June 2021, the day after the injury.
The first respondent said that the appellant forwarded various medical bills to him and requested him to pay the bills in cash directly to him. He said that on 1 December 2022, the appellant’s accountant also forwarded a tax invoice for the hours the appellant had worked. The appellant referred to the medical bills as “questionable” and said that one of them was for eye treatment prior to the injury, so he thought it prudent to retain a solicitor.
The first respondent stated that he did not control where or when the appellant worked, the appellant was not required to wear a uniform, the appellant was to be paid at an hourly rate and was required to fix any errors. He said he did not supervise the appellant because he was off site for most of the time. He said that he believed that the appellant was carrying out his normal trade in his own right and could chose not to do the work if he wished.
The first respondent provided a supplementary statement dated 27 May 2024.[18] He confirmed that he operated as a sole trader and did not employ anyone or pay anyone wages. He said he did not operate the business through a corporate entity. He added that, if he needed assistance, he would engage an independent contractor. He indicated that because he did not pay any wages exceeding $7,500, he was advised that he did not require workers compensation insurance.
[18] First respondent’s reply, p 104.
The first respondent provided a further statement dated 22 July 2024 in which he responded to the appellant’s statement dated 27 May 2024.[19] He reiterated that when he first spoke to the appellant over the telephone about prospective work, the appellant advised that he was an experienced painter, he had his own ABN, he charged GST, and he held insurance. The first respondent stated that he had been a sole trader for about 20 years, he only hired sub-contractors and if the appellant had not provided the information that he did in the telephone conversation with him, he would not have engaged him to work.
[19] First respondent’s Application to Admit Late Documents, pp 1–2.
The first respondent disputed the circumstances of the appellant’s fall.
The first respondent asserted that there was no basis upon which the appellant could have expected ongoing work with him and maintained that the appellant was engaged as a sub-contractor. The first respondent added that he was only on site for brief periods and did not regularly check the appellant’s work. He agreed that the appellant was operating his usual business as a painter and added that, on the tax invoice the appellant had provided to him for the work done, the appellant had used his ABN.
Other documentary evidence
A business data base search discloses that the appellant held an ABN in his name from 5 April 2016 until 12 October 2022.[20] The entry listed the appellant’s ABN and described the entity as an Individual/Sole Trader.
[20] Second respondent’s reply, p 45.
Payslips issued by Plumbing Patrol on 26 June 2020, 25 June 2021, 24 June 2022 and 26 June 2023 confirmed that the appellant was employed by that company on a permanent part-time basis earning $22 per hour and working an average of 23.75 hours per week.[21]
[21] First respondent’s reply, pp 30–34.
The appellant’s taxation return for the financial year ending 2021 was in evidence.[22] The appellant’s main salary and wages occupation was described as a plumber’s assistant. In addition to the income stated from Plumbing Patrol, which was consistent with the end of year payslip for that financial year, the appellant earned supplementary income of $6,157 from the business activity of metal waste and scrap wholesaling.
[22] ARD, pp 41–48.
The tax invoice submitted by the appellant for the work done and dated 2 June 2021 was in evidence. The appellant’s ABN was recorded. The evidence from both the appellant and the first respondent was that it was forwarded some time after the date on the invoice.[23]
[23] Second respondent’s reply, p 35.
The appellant’s accountant forwarded the tax invoice under cover of a letter dated 14 December 2021.[24] The accountant referred to the appellant as a “painter”.
[24] ARD, p 40.
The Claim Form dated 10 August 2022 was in evidence.[25] Relevantly, the appellant asserted that he had no capacity for work, that he only worked for the first respondent and that he was not carrying out a trade or business on his own account. He stated that he was not currently working and was not looking for work.
[25] Second respondent’s reply, pp 29–32.
LEGISLATION
Section 4 of the 1998 Act defines a “worker” as:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”
Schedule 1 to the 1998 Act makes provision for the deemed employment of certain contractors. Clause 2(1) of Sch 1 to the 1998 Act provides that:
“(1) Where a contract—
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) (Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
THE MEMBER’S REASONS
The Member briefly described the circumstances of the appellant’s injury, noting that the appellant believed that he was employed by the first respondent at the time of injury. The Member recorded that the first respondent did not hold a workers compensation insurance policy at the time of injury and that, as a consequence, the appellant lodged a claim with the second respondent, who disputed liability on the basis that the appellant was neither a worker nor a deemed worker within the meaning of the 1998 Act.
The Member noted the issues for determination were whether the appellant was a worker or a deemed worker, whether the appellant suffered an injury pursuant to s 4 of the 1987 Act and the degree of permanent impairment suffered by the appellant.
The Member accurately summarised the appellant’s statement evidence, as well as the statements made by the first respondent. The Member also summarised the medical evidence, and detailed the documentary evidence pertaining to the appellant’s pay slips, taxation records, the ABN relating to the appellant, and the tax invoice dated 2 June 2021.
After summarising the submissions made by the parties, the Member indicated that she was not required to determine whether the first respondent was exempt from holding a workers compensation insurance policy. She turned to the question of whether the appellant was a “worker” as defined by s 4 of the 1998 Act. She observed that she was required to determine whether the appellant worked under a contract of service with the first respondent. The Member referred to and discussed the factors to take into account when considering whether the appellant worked under a contract of service which were identified by the High Court in Stevens v Brodribb Sawmilling Company Pty Limited[26] and in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd.[27] The Member also quoted passages from Roche DP’s discussion in his decision in Malivanek of the indicia that should be considered when determining the question of “worker” or “deemed worker” and the standard of proof required in arriving at a finding of fact discussed in Drca v KAB Seating Systems Pty Ltd.[28]
[26] [1986] HCA 1 (Stevens).
[27] [2022] HCA 1 (Personnel Contracting).
[28] [2015] NSWWCCPD 10.
The Member noted that the appellant asserted that he was in an employer/employee relationship with the first respondent and that the contract was formed in the telephone conversation when it was agreed that the appellant would be paid at the hourly rate of $40. She observed that the first respondent did not ensure that the appellant understood that it was a sub-contracting arrangement and nor did he obtain copies of any insurance documents held by the appellant. The Member referred to the relevant indicia of employment set out in Stevens and noted that the appellant made submissions that:
(a) he was not registered for GST, he had not used his ABN, the contract was not to complete a specific task, and he was paid an hourly rate;
(b) he was driven to the worksite;
(c) he was directed by the first respondent as to what to do and how to do it;
(d) the first respondent checked his work;
(e) the first respondent provided the tools to work with, and
(f) he did not work for anyone else.
The Member summarised the submissions made by the first respondent that:
(a) the first respondent never employed anyone;
(b) he would not have engaged the appellant on any other basis than as a contractor;
(c) the appellant held himself out as a painter with an ABN, and was registered for GST;
(d) the first respondent had raised those matters with the appellant and the appellant was annoyed when the first respondent raised the same questions again when he arrived at the work site;
(e) that evidence was consistent with the first respondent having engaged the appellant as a contractor in his own business, and
(f) the appellant did have an ABN and the ABN was recorded on the tax invoice submitted to the first respondent.
The Member observed that there was a conflict between the evidence from the appellant and the account given by the first respondent of what was said in the telephone conversation. She considered, however, that the evidence was consistent that an agreement had been reached that the first respondent had work available for a painter from 1 June 2021, the appellant was to attend the worksite on that day, and he would be paid $40 per hour. She said that she was satisfied that the parties had entered into an oral contract on 31 May 2021.
The Member turned to the question as to the nature of the relationship between the parties. She referred to the factors set out in Stevens and said that the parties had agreed that the appellant would be paid $40 per hour and the appellant was not required to wear a uniform. She observed that the appellant’s evidence was that the first respondent exerted control over the appellant because he gave instructions as to what areas to paint, supervised him and checked his work. She noted that the first respondent denied that he supervised the appellant and that he controlled how and what work the appellant performed. She further observed that the first respondent indicated that the appellant was required to fix his own mistakes, and that the appellant agreed with that assertion, and that both parties agreed that the appellant did not provide his own tools or equipment. The Member pointed to the discrepancy in the evidence between the appellant and the first respondent as to the hours the appellant was to work and when he was to work. The Member further pointed out that there was no evidence that the first respondent would withhold PAYG tax or make superannuation contributions, there was no discussion about payment of annual leave or sick leave entitlements and the appellant’s evidence was that the first respondent did not request the appellant’s tax file number. In respect of discipline and dismissal, the Member said that the appellant was not aware as to whether he was subject to a code of conduct and the first respondent indicated that the appellant was engaged on a trial basis. In relation to the evidence about the ABN, the Member noted that when the appellant submitted the tax invoice for work done, it included his ABN.
The Member considered that the first respondent did exercise some direction and control over the appellant’s work in that the appellant was told what areas to paint and the appellant’s work was inspected. She said however, that the supervision did not appear to be constant in that the first respondent was not on site most of the time and the appellant was to fix his own mistakes. The Member further considered that, while there was some direction and control exercised by the first respondent over the appellant’s work, other indicia of an employer/employee relationship were not present. She pointed out that:
(a) the appellant did not wear a uniform provided by the first respondent;
(b) while the appellant was paid an hourly rate rather than a fixed sum for the completed job, he did issue an invoice for the work done in which he provided his ABN;
(c) there was no evidence that the first respondent intended to withhold PAYG tax or make superannuation contributions, or provide paid sick leave and holiday pay, and
(d) there was no requirement for the appellant to comply with a code of conduct.
The Member further noted that the fact that the appellant said that he could refuse the work did not point to an employer/employee relationship, and although the appellant hoped that the work would continue, the first respondent described it as a work trial. The Member also observed that the appellant’s evidence was that he only worked for the first respondent, but the first respondent made the assumption that the appellant simultaneously worked elsewhere. The Member said that despite the fact that the appellant was working only for the first respondent at the time of the injury, the first respondent did not have exclusive right to the appellant’s services.
The Member pointed out that the appellant did not use his own tools and equipment, whereas the first respondent indicated that the appellant should have provided his own and he was unaware as to whether there was an arrangement between the appellant and the other subcontractor for the provision of tools and equipment.
The Member remarked that because of the contradiction between the appellant’s evidence and that of the first respondent in respect of the hours of worked, it was not possible to conclude whether the first respondent directed the appellant to attend work at a particular time or whether the appellant was free to work the hours that he chose.
The Member concluded that, after applying the indicia set out in Stevens, despite being satisfied that there was an oral contract between the parties, she was unable to conclude on the balance of probabilities that the appellant was a worker pursuant to s 4 of the 1998 Act.
The Member turned to the question of whether the appellant satisfied the “deemed worker” provision within the meaning of cl 2 of Sch 1 to the 1998 Act. She noted that the appellant bore the onus of proving on the balance of probabilities that he satisfied the provision. She set out the elements required to be met by the appellant and identified by the Court of Appeal in Scerri v Cahill[29] that:
(a) the appellant was a party to a contract with the first respondent to perform work;
(b) the work exceeds $10 in value;
(c) the work was not work incidental to a trade or business regularly carried on by the appellant in his own name or under a business or firm name, and
(d) the appellant neither sublet the contract nor employed workers in the performance of the work.
[29] (1995) 14 NSWCCR 389 (Scerri), 399.
The Member concluded that on the evidence she accepted that the appellant was a party to a contract with the first respondent and the work exceeded $10 in value. She added that the appellant’s evidence was that he did not employ any other worker or pay any part of his earnings to another person, so that she was satisfied that he neither sublet the contract nor employed any other workers in the performance of the contract.
The Member identified the remaining issue as to whether the work performed by the appellant was incidental to a trade or business operated by him in his own name, or in a business name. She noted that the appellant was required to establish that the work was not part of such trade or business.
The Member referred to the appellant’s evidence that, although he obtained an ABN in 2016, he never used it, he had not worked as a painter until June 2021, and he had not advertised painting services since 2017. The Member further referred to the appellant’s submissions that:
(a) he was not carrying out a painting business;
(b) his taxation return described his work as a “plumber’s assistant”;
(c) the first respondent indicated that it was apparent that the appellant was not an experienced painter, and
(d) the first respondent’s observation that the work done by the appellant indicated that the appellant was not experienced was consistent with the appellant having not ever worked as a painter, despite his qualifications.
The Member indicated that the first respondent submitted that:
(a) the appellant had an ABN, was registered as a painter, and his accountant’s letter stated he was a painter, and
(b) even if he was not continuously engaged as a painter, the appellant held himself out to the first respondent as being in the painting business with an ABN, was registered for GST purposes and held his own insurance.
The Member noted the second respondent’s submissions that the 2021 taxation return did not assist in determining the “deemed worker” issue because it only included the appellant’s earnings from Plumbing Patrol.
The Member quoted from the observations of Roche DP in Malivanek and Pasqua v Morelli Constructions Pty Ltd.[30] She noted the appellant’s assertions that, although he was a qualified painter with an ABN, the appellant had not performed that work until 1 June 2021 and had not advertised his services since 2017. She observed that those assertions were somewhat contradicted by his other evidence. The Member pointed to the appellant’s first statement in which he stated that he was doing work as a painter as part of his normal business because his normal business was that of a painter. The Member noted that the appellant later resiled from that evidence in his subsequent statement and he described it as an “error”. The Member observed that the appellant provided no explanation as to why in 2022 he erroneously described the nature of his own business. The Member referred to the appellant’s further evidence in the 2022 statement that his business activity was the same as that of his employer because they were both painters and that he always worked with a boss and expected the boss to have his own insurance. She observed that that evidence was not subsequently retracted or amended.
[30] [2009] NSWWCCPD 153.
The Member said that the fact that the appellant referred to his “business activity” led to the inference that the appellant was conducting a business, identified by him as that of a painter, at the time of the injury. She reasoned that the appellant’s evidence that he “always works with a boss” inferred that “this activity was systematic and regular and casts doubt on the [appellant’s] later assertion that he had never worked as a painter before 1 June 2021.” She further reasoned that “[t]here is no explanation as to why he would say he ‘always’ works a certain way if he had never undertaken this work before.”[31]
[31] Yousif v Cameron Sandy Painting & Decorating [2024] NSWPIC 448 (reasons), [128].
The Member referred to the appellant’s evidence that he had not worked for himself since the accident and was performing work in his son’s plumbing business because he was unable to perform any painting jobs. She said that the statement that he had not worked for himself since the accident led to the inference that the appellant was working for himself at the time of the injury.
The Member further noted that the appellant’s ABN was current and was in the appellant’s name, describing the entity as an Individual/Sole Trader, the appellant’s accountant had included the ABN on the invoice for the painting work and in the letter dated 14 December 2021, the accountant described the appellant as a painter. The Member said that there was no explanation as to why the accountant would have described him as a painter if that was not the appellant’s regular occupation and the appellant had not performed that work prior to 1 June 2021.
The Member referred to the first respondent’s submissions that the appellant held himself out to the first respondent as having his own painting business, being experienced as a painter, having his own ABN and insurances and charging GST. She noted that the appellant denied that he advised the first respondent of those matters and had submitted that the fact that the first respondent considered that the appellant was not an experienced painter supported his evidence that he had not worked as a painter. The Member referred to Barwick CJ’s observation in Higgins v Jackson[32] that “holding out” that someone performs a certain activity is not a requirement in determining whether he was a deemed worker and said that that, together with the contested versions of what was said in the telephone call, caused her to draw no conclusion as to which version she preferred. She described the first respondent’s evidence that he was not happy with the appellant’s work as a subjective opinion, and said that it did not constitute evidence that the appellant had never worked as a painter.
[32] [1976] HCA 37.
The Member turned to the appellant’s taxation return for the financial year ending 2021 that recorded that the appellant was employed by Plumbing Patrol as a plumber’s assistant, earning income from that work and from a small business of metal waste and scrap wholesaling. The Member considered that it was unfortunate that the appellant had not provided any bank statements that might clarify whether he had any other income or bank deposits not declared in his taxation returns. She remarked that the financial records accorded with the appellant’s evidence that he was not regularly carrying out work in a trade or business as a painter at the relevant time. She observed, however, that there were inconsistencies between the taxation information and the information recorded in the Claim Form signed by the appellant, in which he declared that he only worked for the first respondent and that he was not working at the time he signed the form. The Member referred to the appellant’s payslip provided by Plumbing Patrol for the period from 19 June 2021 and 25 June 2021, which was issued just after the injury, and for the period from 18 June 2022 to 24 June 2022, which was issued just prior to the completion of the Claim Form. She said that those records showed that the appellant was working and was paid, which was inconsistent with the information he provided in the Claim Form and caused her to draw a negative inference in respect of the appellant’s credit.
The Member concluded that:
“I consider that the inconsistencies and contradictions in the [appellant’s] statements and other evidence, as outlined above, do not lead me to conclude that the [appellant’s] usual trade was not as a painter. As a result, I do not have an actual persuasion with a probability of 50% that the work undertaken by the [appellant] on 2 June 2021 was not incidental to his usual trade or business.
I am not satisfied that the [appellant] has discharged his onus and established that he was a deemed worker pursuant to cl 2 of Schedule 1 of the 1998 Act.”[33]
[33] Reasons, [142]–[143].
The Member observed that, having determined that the appellant was not a worker or a deemed worker, she was not required to consider whether the appellant suffered an injury pursuant to s 4 of the 1987 Act or whether the appellant was entitled to compensation.
The Certificate of Determination issued on 19 August 2024 records:
“The Commission determines:
1. The [appellant] was not a worker pursuant to s 4 of the Workplace Injury Management and Workers Compensation Act 1998.
2. The [appellant] was not a deemed worker pursuant to cl 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998.
3. Award in favour of the respondents.”
GROUNDS OF APPEAL
The appellant brings two grounds of appeal as follows:
(a) Ground One: The Member misdirected herself in relation to the evidence and committed error of fact and law, and
(b) Ground Two: The Member incorrectly determined that the appellant had failed to discharge his onus of proof.
SUBMISSIONS
As to Ground One
The appellant’s submissions
The appellant refers to his statement dated 8 August 2022, which was provided to the second respondent’s investigator. The appellant further refers to the Member’s observation that the appellant did not explain why it was that in 2022 he was mistaken as to the nature of his business. The appellant says that he did not appear to have the benefit of an interpreter at that interview, but he did require one for the hearing.
The appellant submits that while the Member was not persuaded as to why he corrected his statement, that must be measured against the fact that the statement was “prepared by an investigator,” was contrary to what had actually occurred, and the appellant was not cross-examined. The appellant adds that the correction to his statement was entirely consistent with his 2021 taxation return in that he worked as a plumber’s assistant during that year.
The appellant adds that the fact that English was not his first language provides some support for the need to correct his earlier statement made to the investigator.
The appellant asserts that the Member failed to properly consider the taxation return for the year ending 30 June 2021, which he says was consistent with the earlier returns (not in evidence). The appellant says that the evidence in the taxation return appears to have been rejected because of its inconsistency with the Claim Form but submits that the basis for the rejection was not entirely clear.
The appellant contends that the Member’s comments in relation to the absence of bank records were not relevant because there was no suggestion that the appellant had not properly declared his income or his employers in the 2021 taxation return. The appellant asserts that, by considering that the bank records were relevant, the Member erred in fact and law and reversed the appellant’s onus of proof. The appellant submits that the Member thus erroneously drew an adverse inference as to the appellant’s credibility.
The appellant says that the Member determined that the appellant’s declaration in the Claim Form was inconsistent with the pay slips. The appellant points out that the injury occurred on 2 June 2021, he thereafter worked for Plumbing Patrol, and the Member made a finding that he had not declared that work. The appellant says, however, that he disclosed that he was working in his statement. The appellant asserts that, in circumstances where the appellant’s first language was not English, the inconsistency was not sufficient to permit the Member to draw a credit finding adverse to the appellant.
The appellant reiterates that his truthfulness was not challenged during the proceedings. He asserts that it was improper for the Member to reject the 2021 taxation return on the basis that it was inconsistent with the Claim Form, and says that, even if he had worked and the declaration on the Claim Form was wrong, the evidence was overwhelming that he had not worked as a painter before commencing with the first respondent.
The appellant says that the Member did not provide reasons for concluding that the appellant was carrying on a business in his own name. The appellant asserts that the Member failed to properly determine the issue as to whether he was a deemed worker, in that she rejected the taxation return without explaining why, rejected the appellant’s evidence that the injury occurred on the second day of the job, and rejected his evidence that despite having an ABN, he had never worked as a painter. The appellant contends that this was a critical error on the part of the Member that affected the outcome of his case. The appellant says that in circumstances where he had no customers and did not work as a painter until he worked for the first respondent, that was sufficient evidence to succeed on the question of whether he was a deemed worker. The appellant points out that this was particularly so when the Member accepted that his Facebook page created in 2017 was inactive.
The appellant refers to the Member’s discussion of the appellant’s evidence that he “always works with a boss.” The appellant says that this was evidence that he was working for Plumbing Patrol and earning a salary and thus was always working with a boss. The appellant submits that the Member misdirected herself in respect of that evidence and fell into error of fact and law because her conclusion was vastly at odds with the substantial body of evidence that demonstrated that the appellant was not carrying on a business as a painter. The appellant asserts that the correct finding ought to have been that he was a deemed worker. The appellant adds that the Member misdirected herself when noting that the letter from the accountant dated 14 December 2021 was sent some six months after the injury.
The appellant concludes that for all of those reasons, the Member failed to properly apply the relevant legislation, particularly cl 2 of Sch 1 to the 1998 Act, and the relevant test set out in Malivanek.
The first respondent’s submissions
The first respondent submits that the appellant’s first ground of appeal is unclear. The first respondent says that it assumes that the appellant asserts error on the part of the Member in misdirecting herself in relation to the evidence. The first respondent submits that the appellant has failed to identify any such misdirection and says that on the contrary, the Member’s analysis of the evidence was thorough and accurate.
The first respondent asserts that the Member correctly identified that the onus of proof lay with the appellant and was to the civil standard. He says that the Member proceeded to carry out a detailed analysis of the evidence and the inconsistencies in the evidence before concluding that the appellant had not discharged his onus in respect of two critical issues. The first respondent asserts that the Member’s finding was not only available to her but “sits comfortably with the evidence as presented.”[34]
[34] The first respondent’s submissions, [10].
The first respondent contends that the appellant’s explanation that he did not have assistance from an interpreter when making his statement dated 8 August 2022 is without foundation. The first respondent points out that the appellant indicated in his statement that he did not require an interpreter, and he repeated his position in his second statement dated 27 May 2024, which was relied upon in the proceedings commenced by the appellant’s own legal representatives.
The first respondent refers to the appellant’s criticism of the Member’s consideration of the appellant’s taxation return, her observation that the bank records would have been of assistance, the inconsistency between the taxation returns and the Claim Form and the payslips from Plumbing Patrol. The first respondent says that the nature of the inconsistencies was plainly apparent and accurately recorded by the Member and were just a few of the numerous inconsistencies in the evidence that adversely impacted the appellant’s credit so that it was entirely open to the Member to make the adverse credit finding.
The first respondent further refers to the appellant’s criticism of the Member’s conclusion reached in respect of the appellant’s evidence that he always worked with a “boss”. The first respondent submits that that evidence was advanced by the appellant himself and the assertion that the Member misdirected herself by making specific reference to that evidence is without merit. The first respondent asserts that the way in which the Member dealt with that evidence cannot constitute an error of fact and amounts to the appellant simply disagreeing with the Member.
The second respondent’s submissions
The second respondent refers to the appellant’s attempt to explain inconsistencies in his evidence on the basis that the statement was taken by an investigator and without the benefit of an interpreter. The second respondent says that the appellant’s explanation was not one put forward by him to the Member below and submits that on that basis it cannot be raised in the appeal.
The second respondent submits that, had the explanation been made in the proceedings below, it would have pointed out that:
(a) the investigator’s report summary made it clear that the investigator contacted the appellant’s legal representatives in order to interview the appellant and to draft a statement which the legal representative would review before the appellant signed it;
(b) the appellant specifically confirmed that he did not require an interpreter;
(c) there was no suggestion that an interpreter was required at the consultations with the parties’ independent medical examiners, Dr Guirgis or A/Prof Courtney, and
(d) the appellant confirmed in his statement dated 27 May 2024 that he did not require an interpreter and stated that his English was “good.”
The second respondent asserts that the evidence does not support the submission that the inconsistencies in the evidence could be explained by the lack of an interpreter.
The second respondent observes that the appellant was not cross-examined and submits that there is no right to cross-examination in the Commission. The second respondent contends that it was open to the Member to make an adverse credit finding in circumstances where there is a credible body of material evidence in contradiction to the appellant’s evidence, even though the appellant was not cross-examined or asked questions by the Member. The second respondent says that the Member analysed the evidence in great detail and determined that there were inconsistencies in the appellant’s evidence which she found concerning, and that ultimately led her to draw a negative credit inference. The second respondent submits that, once that finding was made, in accordance with Jaffarie v Quality Castings Pty Ltd,[35] the Member was required to treat the appellant’s evidence with caution.
[35] [2014] NSWWCCPD 79.
The second respondent refers to the appellant’s submissions in respect of the 2021 taxation return and contends that the Member did not “reject” the 2021 taxation return. The second respondent submits that the Member determined that the document did not advance the appellant’s assertion that he was a worker or a deemed worker. The second respondent says that there were inconsistencies between what was recorded in the taxation return and the Claim Form, and there were also inconsistencies between the Claim Form, the taxation return and the payslips from Plumbing Patrol. The second respondent submits that, for the reasons already provided, the attempt to explain those inconsistencies by reference to the appellant’s English as not being the appellant’s first language should be rejected.
The second respondent submits that the Member was ultimately not persuaded that, on the balance of probabilities, the appellant met the requirements of cl 2 of Sch 1 to the 1998 Act in order to be considered a deemed worker.
As to Ground Two
The appellant’s submissions
The appellant submits that, in finding that he had failed to discharge his onus of proof, the Member took into account irrelevant considerations, including the inconsistency in the Claim Form. The appellant contends that an “[i]nconsistency itself does not mean that a party has not discharged its onus of proof” and a “failure to discharge the onus of proof has to do with inadequacy of evidence as opposed to preference of one party’s evidence over the other.”[36]
[36] Appellant’s submissions, [32].
The appellant asserts that the Member drew an adverse inference as to the credit of the appellant but did not explain specifically how that finding affected her decision. The appellant adds that the Member did not explain what evidence she either accepted or rejected that resulted in her finding, which is an error of law. The appellant points to his evidence that the first respondent provided the tools and equipment, he had not advertised his services since 2017, and while he obtained an ABN as required by his TAFE course, he had never used it. The appellant refers to his evidence in which he corrected his earlier statement in relation to him being a painter and submits that the Member did not explain why she rejected his correction.
The appellant contends that he gave sufficient evidence to discharge his onus and the Member’s finding that he failed to discharge his onus of proof cannot stand. The appellant adds that the Member did not properly apply the “control test” set out in Scherri (presumably a reference to Scerri) or the indicia set out in Malivanek, did not deal with his submission or the evidence pertaining to him not having worked as a painter since he obtained his license in 2016, or his submission that he only worked for the first respondent, who controlled and directed his duties.
The appellant asserts that the Member thus erred in law.
The first respondent’s submissions
The first respondent submits that this ground merely appears to be a re-statement of the first ground of appeal. The first respondent points out that the matters relied upon by the appellant in his first statement dated 8 August 2022 in respect of his work as a painter were also advanced in his second statement dated 27 May 2024. The first respondent says that just because the appellant attempted to correct that evidence does not mean that the Member was obliged to accept that correction, in particular in circumstances where the Member made adverse findings as to the appellant’s credit.
The first respondent further submits that the appellant’s assertion that the Member did not deal with his submissions, or the relevant law, is also without merit. The first respondent asserts that the Member correctly gave consideration to the onus of proof that the appellant was required to satisfy, thoroughly analysed the evidence and determined that the onus of proof was not discharged.
The second respondent’s submissions
The second respondent indicates that it is not certain of the basis for this ground of appeal. The second respondent observes that it is clear that the onus of proof rests with the appellant and says that the Member concluded that she was not satisfied that the appellant discharged that onus, or that the appellant had established that he was a deemed worker. The second respondent refers to the Member’s conclusion that the inconsistencies and contradictions in the evidence led her to a lack of persuasion that the work undertaken by the appellant was not incidental to the appellant’s usual trade or business and thus the appellant did not satisfy the requirements cl 2 of Sch 1 to the 1998 Act.
The second respondent refers to its submissions already made in respect of the Member’s adverse determination as to the appellant’s credit. The second respondent observes that once the Member formed those adverse views, she was entitled to treat the appellant’s evidence with caution and was entitled to only accept those aspects of the appellant’s evidence where the evidence was supported by independent or objective evidence, citing Malco Engineering Pty Ltd v Ferreira[37] as authority for that proposition.
[37] (1994) 10 NSWCCR 117.
In conclusion, the second respondent submits that it was open for the Member to reach a conclusion that on the balance of probabilities the appellant had failed to establish that he was a worker or a deemed worker at the time of the injury.
THE RELIEF SOUGHT
The appellant seeks to have the award set aside and in lieu thereof an award in his favour should be made that he was either a worker or a deemed worker. He asks that the balance of the issues should be remitted to a different Member for determination. In the alternate, he seeks that the appeal should proceed to an oral hearing.
The first respondent submits that the Member’s Certificate of Determination should be confirmed.
The second respondent submits that the appeal should be dismissed.
CONSIDERATION
The purported grounds of appeal, as drafted, do not properly identify any error in the Member’s reasoning or determinations. I note that both respondents indicate some difficulty in comprehending what parts of the Member’s decision the appellant asserts is erroneous. The difficulty complained of by the respondents is understandable.
Procedural Direction WC 3, paragraph [24] requires that the grounds of appeal must identify how the error of fact, law or discretion has occurred. Paragraph [25] further provides that:
“It is not acceptable to merely allege that the member erred in law, fact, or discretion, or that the decision is against the evidence or the weight of the evidence.”
In Kowalski v Repatriation Commission,[38] the Full Court of the Federal Court said that:
“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be.”
[38] [2011] FCAFC 43, [21].
President Phillips endorsed the requirements of the Commission’s Procedural Direction and the approach taken in Kowalski in A1 Granny Flats v Workers Compensation Nominal Insurer (icare).[39]
[39] [2023] NSWPICPD 69.
It is thus necessary to consider the submissions made by the appellant in order to ascertain the gravamen of the appellant’s complaints.
In this case, neither of the two grounds of appeal, as expressed, raise an allegation of error on the part of the Member in her determination that the appellant was not a worker within the meaning of s 4 of the 1998 Act.
Under the first ground of appeal, the appellant refers to his taxation returns, the Member’s reasoning in relation to the inconsistent evidence in the Claim Form, the pay slips from Patrol Plumbing, the subsequent correction of the appellant’s statement evidence about being in the business of painting, the appellant’s ABN, and the adverse finding as to the appellant’s credit. All of that evidence is pertinent to the Member’s consideration of the issue as to whether the appellant was a deemed worker pursuant to cl 2 of Sch 1 to the 1998 Act. Little, if any of that evidence was specifically relied upon by the Member in respect of her determination that the appellant was not a “worker” within the meaning of s 4 of the 1998 Act.
The appellant’s concluding submission in respect of Ground One is that the Member failed to properly apply the ‘deemed worker’ provision. There is thus no identifiable complaint that the Member erred in her conclusion that the appellant was not a “worker” pursuant to s 4.
In respect of Ground Two of the appeal, the submissions made by the appellant included reference to the Member’s finding in respect of the inconsistent evidence and the appellant’s failure to discharge his onus of proof. The Member’s reasons in respect of the issue of whether the appellant was a ‘worker’ are set out in her Certificate of Determination from paragraph [86] to [111] of her reasons. She referred to the various authorities and the indicia identified in those authorities that might assist in the determination of whether the appellant was in an employee/employer relationship with the first respondent. She systematically considered the indicia in the context of the available evidence, and concluded that, after a consideration of those indicia and the totality of the relationship between the appellant and the first respondent, on the balance of probabilities, she was not persuaded that the appellant was a “worker” within the meaning of s 4 of the 1998 Act.
The appellant’s submissions in respect of the second ground of appeal do not encompass complaints in respect of the Member’s treatment of the evidence or the factors identified in Stevens that should be taken into account in determining the question of “worker”, such as supervision, control, hours of work, exclusivity, and so on. The matters identified by the appellant as being erroneous are the inconsistencies found in the evidence and the Member’s conclusion that the appellant had failed to discharge his onus of proof. The appellant faintly refers to the “the control test”, which he erroneously asserts is set out in Scerri, and submits that the Member did not properly apply that test or the “relevant indicia” in Malivanek. The appellant further asserts that the Member failed to deal with his submissions that the first respondent controlled and directed the appellant and he did not work for anyone as a painter other than the first respondent.
It is difficult to glean from those submissions any identifiable appeal ground asserting that the Member erred by determining that the appellant was not a “worker”. I am left to guess whether such error is raised. My role in an appeal 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 the correction of any such error. The appeal is not a review or re-hearing.[40]
[40] Section 352(5) of the 1998 Act.
I am of the view that this appeal does not sufficiently encompass an allegation of error on the part of the Member in her determination that the appellant was not a “worker” within the meaning of the 1998 Act. If I am wrong, and the references to the “control test” and the application of Malivanek are intended to relate to some such error, the submissions made do not persuade me that the Member erred.
The Member referred to and quoted from the various authorities, including Malivanek, in respect of the question of whether there was a contract of service between the appellant and the first respondent.[41] The Member clearly took into account the appellant’s submissions about the ‘control test’,[42] reviewed the evidence and addressed the indicia that might assist in determining the issue.[43] The Member concluded that while there was evidence of some level of control and direction by the first respondent, when considering the totality of the relationship, there were other factors that led her to conclude that the appellant was not a “worker”. The assertions by the appellant that the Member did not deal with his submissions that the first respondent controlled and directed the appellant or that the Member erred in not properly applying the control test are thus not made out and cannot be accepted.
Ground One: The Member misdirected herself in relation to the evidence and committed error of fact and law
[41] Reasons, [88]–[91].
[42] Reasons, [92]–[93].
[43] Reasons, [95]–[104].
The appellant points to the Member’s observation that the appellant did not explain why it was that the appellant was mistaken in his description of the nature of his normal business as a painter in his first statement made on 8 August 2022. The appellant offers the excuse that the appellant did not have the benefit of an interpreter. The first respondent submits that the explanation was without foundation and the second respondent asserts that the excuse was never raised before the Member and thus could not be raised on appeal, and was wrong in any event.
I have reviewed the transcript of proceedings and there was no submission to the effect that the failure to have available the assistance of an interpreter was an excuse that explained the amendment. The Member can hardly be considered wrong in failing to take into account a submission never made.[44]
[44] Brambles Industries Limited v Bell [2010] NSWCA 162.
In respect of the appellant’s subsequent amendment to the 2022 statement, both respondents submit that the purported need for an interpreter was inconsistent with the appellant’s first statement in 2022, in which the appellant stated that he did not need the assistance of an interpreter. They say that it was also inconsistent with the appellant’s second statement dated 27 May 2024, in which he reiterated that he did not require an interpreter, and his English was ‘good’. The second respondent adds that the appellant maintained that his normal work was that of a painter in his statement dated 27 May 2024, and that that statement was lodged by the appellant’s legal representatives in these proceedings.
The Member did not consider that evidence in a vacuum. She noted that in the same statement made in 2022, the appellant also stated that his “business activity was the same as his employer’s, because we are both painters”, and he always worked with a “boss”, who he expected would have their own insurance. The Member noted that the appellant did not resile from that evidence. Thus, there was a clear foundation for the Member to consider that there were inconsistencies in the appellant’s statement evidence.
There is no foundation for the assertion by the appellant that the statement was “prepared” by an investigator. In the 2022 statement, the appellant specifically noted that the appellant was to take the draft to his solicitor for review before he signed it. It is also notable that the statement dated 27 May 2024 was an amendment to the first statement, was lodged in these proceedings by the appellant’s legal representatives, and the paragraph describing the nature of his business as that of a painter was not altered.
The appellant complains that he was not cross-examined and that his evidence was unchallenged. The transcript of proceedings clearly discloses that the primary challenge to the appellant’s case was the inconsistencies in the appellant’s evidence. As the second respondent points out, there is no legal right to cross-examine an applicant or other witness in the Commission[45] and a court or tribunal is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence.[46]
[45] Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 (Zheng), [37].
[46] Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (Ali), [110]–[112].
The appellant further submits that the Member failed to properly consider his taxation return for the year ending 30 June 2021 and it appeared that the Member rejected the document because of its inconsistency with the Claim Form. The appellant adds that it is not clear why the Member rejected it.
The Member acknowledged that the taxation return showed an income from Plumbing Patrol and earnings from a small business in metal waste and scrap wholesaling and that that evidence supported the notion that the appellant was not carrying out a business as a painter. The Member compared that evidence with the evidence provided by the appellant in the Claim Form and found inconsistencies with that document, in that the appellant asserted that he had only worked for the first respondent and was not working at the time he completed the Claim Form (10 August 2022). The evidence contained in the taxation return and the payslips from Plumbing Patrol at the relevant time shows that the appellant was employed by, and earning income from, Plumbing Patrol. The information provided by the appellant in the Claim Form was clearly untrue.
The Member did not “reject” the 2021 taxation return. Following an assessment of the appellant’s evidence, including the taxation assessment and the appellant’s statement evidence, and in accordance with Zheng and Ali, the Member was entitled to turn to the objective evidence which might or might not corroborate the appellant’s evidence and to draw a negative inference in relation to the appellant on the basis that the evidence was inconsistent. In those circumstances it was reasonable for the Member to comment that further evidence in the form of bank statements may have painted a clearer picture of the appellant’s activities.
The appellant asserts that the Member misdirected herself in relation to the appellant’s statement that he “always works with a boss” and fell into error of fact and law because that evidence was vastly at odds with the competing substantial evidence. It is not entirely clear what the appellant is actually submitting, and the appellant does not identify what evidence was vastly different to that evidence given by the appellant. In any event, this was just one factor taken into account by the Member and the Member expressed other, soundly based conclusions that led her to her final determination that the appellant was not a deemed worker. Any potential error on the part of the Member in her observation about that part of the evidence cannot have affected the result in this case.
For all of the above reasons, it follows that the Member did not err by failing to properly apply cl 2 of Sch 1 to the 1998 Act and Ground One of the appeal fails.
Ground Two: The Member incorrectly determined that the appellant had failed to discharge his onus of proof
The appellant asserts that the Member erred in her determination that the appellant had not discharged his onus of proof and was not a deemed worker. He says that the Member took into account irrelevant considerations, including inconsistencies in the Claim Form.
The appellant asserts that the preference for one party’s evidence over the other’s evidence does not provide a foundation for a determination that he had not discharged his onus of proof. The Member did not determine this case on the basis of a preference for one party’s evidence over the other. She reached her conclusion on the basis that the appellant’s own evidence as to whether he was a deemed worker was so inconsistent that the onus of proof, which rested with him, had not been discharged. She clearly reached that conclusion on the basis that the appellant’s evidence was so inconsistent that there was insufficient reliable evidence for the appellant to succeed in his case. That approach discloses no error on the part of the Member.
The appellant submits that the Member did not explain how her adverse credit finding affected her decision. The Member provided ample reasoning as to why she made a credit finding that was adverse to the appellant. It is plainly obvious that the adverse credit finding meant that she needed to determine the dispute on the basis of the objective evidence, which was, in her view not sufficient to prove that on the balance of probabilities the appellant was not carrying out work which was incidental to a trade or business regularly carried on by him, and thus he was not a deemed worker. The asserted error of law is not made out.
The appellant refers to his evidence that the first respondent provided the tools and equipment, he had not advertised that he did painting work since 2017, he had never used his ABN and he had corrected his statement that his business was that of a painter. He submits that that evidence was sufficient to discharge his onus of proof. That evidence, if accepted, may have been sufficient to discharge his onus had it not been that the correction in the statement was inconsistent with other parts of his statement that his business was the same as the first respondent (that is, painting work), as well as the other inconsistencies identified by the Member. Additionally, there was evidence that his assertion that he never used his ABN was contrary to the fact that the ABN was written on his tax invoice to the first respondent. Further, the evidence that the first respondent provided the tools and equipment was disputed by the first respondent, the appellant did not deny the suggestion made by the first respondent that they may have been provided by the other painter on site (Mark) so that the question of who provided the tools and equipment remained unresolved.
The appellant adds that the Member did not:
(a) “properly apply the control test set out in [Scerri]” and the relevant indicia in Malivanek;
(b) deal with the submission and the evidence that he had not worked as a painter since obtaining his painting license in 2016, and
(c) deal with his submissions that the first respondent controlled and directed the appellant and that the appellant only worked for the first respondent.
Scerri is relevant only to a determination of whether the appellant was a deemed worker within the meaning of cl 2 of Sch 1 and the “control test” is not a concept that is required to be considered in reaching such a determination. The assertion that the Member did not properly apply the test set out in Scerri is a nonsense.
The assertion that the Member failed to apply the indicia drawn from Malivanek is dealt with by me at paragraph [132] above. The Member clearly considered those indicia in her reasons from paragraph [87] to [111] of her Certificate of Determination. In addition, the Member cited the more recent High Court decision in Personnel Contracting and observed that Kiefel CJ, Keane and Edelman JJ considered Stevens (from which the indicia in Malivanek were drawn) and said that:
“‘the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to ‘the totality of the relationship between the parties’ rather than running down items on a checklist.”[47]
[47] Reasons, [89], citing Personnel Contracting, [34].
The Member concluded that, after taking into account the factors identified in Stevens and on a consideration of the totality of the relationship between the appellant and the first respondent, she was not persuaded that the appellant was a “worker” within the meaning of s 4 of the 1998 Act.[48] The Member appropriately followed the relevant authorities and there was no error in that approach.
[48] Reasons, [111].
It is readily apparent that the Member dealt with the appellant’s submissions that the appellant was a “worker”. It follows that Ground Two of the appeal is not made out.
CONCLUSION
Both grounds of appeal fail, and the Member’s Certificate of Determination dated 19 August 2024 is confirmed.
DECISION
The name of the first respondent in the proceedings below and in the appeal is amended to read “Cameron Sandy t/as Cameron Sandy Painting & Decorating”.
The appellant’s application to admit further documents is refused.
The Member’s Certificate of Determination dated 19 August 2024 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
29 May 2025
0
14
0