Zheng v Xie - [2011] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Zheng v Xie [2011] NSWWCCPD 58
APPELLANT:		Yue Zheng
FIRST RESPONDENT:		Sheng Li Xie
SECOND RESPONDENT:		Workers Compensation Nominal Insurer
FILE NUMBER:		A1-5704/10
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:		10 May 2011 20 October 2011
DATE OF APPEAL DECISION:		27 October 2011
SUBJECT MATTER OF DECISION:		Worker; whether contract of employment formed; whether wife has ostensible authority to bind husband; fresh evidence or additional evidence on appeal; reasons; weight of evidence; notice of injury; notice of claim; ss 352(6), 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
REPRESENTATION:		Appellant:	Mr de Greenlaw, instructed by Veritas Legal
First Respondent:	Mr Beauchamp, instructed by Firths
Second Respondent:	Mr Perry, instructed by DLA Piper
ORDERS MADE ON APPEAL:		The Arbitrator’s decision of 10 May 2011 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration. Each party is to pay his or its own costs of the appeal.

BACKGROUND

Sheng Li Xie was born in China in 1958. He came to Australia in September 2001. He alleges that, on coming to Australia, he lived with the appellant, Mr Zheng, at Mr Zheng’s home at 9 Butterfield Street, Thornleigh (the Thornleigh premises) and continued to live there until about June 2008. He says he paid board of $100 per week until about the middle of 2003. Mr Xie claimed that, following this time, he received accommodation and food at no cost in return for working for Mr Zheng at 3 Ronald Avenue, Wahroonga (the Wahroonga premises). The Wahroonga premises are an investment property owned by Mr Zheng and his wife.
Mr Xie’s case is that, in the course of his employment with Mr Zheng, on 5 September 2006, he was cutting a tile on outdoor steps at the Wahroonga premises when a piece of tile entered his right eye causing him serious injury and loss of vision. It is also his case that, after the accident, Mr Zheng agreed to meet, and did meet, his hospital and medical expenses until mid-2008. Because Mr Zheng was uninsured, Mr Xie submitted a claim for compensation on the WorkCover Authority of New South Wales on 24 February 2009.
Mr Zheng’s case is that:
(a)     Mr Xie only stayed at the Thornleigh premises for a few weeks after he arrived in Australia in 2001 and again, for a few weeks, after he was released from hospital in 2006. Other than this, Mr Xie’s visits were occasional, such as staying overnight after dinner parties, or visiting during his afternoon break between shifts at a nearby Chinese restaurant;
(b)     he never agreed to Mr Xie staying at the Thornleigh premises rent-free in return for work performed at the Wahroonga premises, and
(c)     he only loaned Mr Xie money (totalling about $6,000) to cover his medical expenses, but did not meet those expenses directly.
In an Amended Reply filed on 27 August 2010, Mr Zheng disputed injury, notice of injury, notice of claim, and whether Mr Xie was a “worker” or a “deemed worker” under the legislation. It is not disputed that, notwithstanding that WorkCover had not put notice of injury or notice of claim in issue in its s 74 notices, those matters were properly in issue at the arbitration.
The Commission listed the matter for conciliation and arbitration before Arbitrator Phillips SC on 17 and 18 November 2010. The matter proceeded with cross-examination of Mr Xie through a Mandarin interpreter. Before cross-examination was completed, and because of the volume of evidence and the large number of witnesses who provided statements (22, excluding expert witnesses), the parties agreed that statements would be admitted without further cross-examination. They also agreed they would not take any “Browne v Dunn” ((1894) 6 R 67, 7 C & P 408) points because of a failure to cross-examine all witnesses and agreed that the Arbitrator would deal with the statements on “the basis of what weight he placed upon them rather than by taking inferences about not calling any witnesses or failing to cross-examine them” (Statement of Reasons (Reasons) at [6]).
In a reserved decision delivered on 10 May 2011, the Arbitrator concluded that there was a relationship between Mr Xie and Mr Zheng that required Mr Xie to work for Mr Zheng at the Wahroonga premises. He based his conclusion on a conversation between Mr Xie and Mr Zheng’s wife, Jie Wang, a person he said had “at least ostensible authority to speak on behalf of her husband” and an inference that Mr Zheng “would also have known about this arrangement and adopted it” (Reasons at [71]).
The Commission issued a Certificate of Determination on 10 May 2011 in the following terms:
“The Commission determines:
1.    At all relevant times the applicant was a worker as defined engaged as an employee by the first respondent.
2.    On 5 September 2006 whilst so engaged the applicant suffered an injury to his right eye.
3. I refer the applicant’s claim for s 66 lump sum benefits under the Workers Compensation Act 1987 to the Registrar for assessment of whole person impairment by an Approved Medical Specialist (AMS).
4.    I adjourn the applicant’s claim pursuant to s 67 of the said Act until after the AMS has made the assessment.
5.    Costs are reserved.”
Mr Zheng has appealed the Arbitrator’s decision.

PRELIMINARY MATTERS

Monetary threshold

It is not disputed that the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) are satisfied.

Time

The last day on which the appeal could be lodged within the 28-day time limit in s 352(4) of the 1998 Act was 7 June 2011. The Commission incorrectly stamped the Appeal Against Decision of Arbitrator (form 9) as “received” on 8 June 2011 and “registered” on 10 June 2011. The Commission’s file reveals that the appellant lodged the appeal by email at 4.12 pm on 7 June 2011 and the Commission acknowledged receipt of it by email at 4.31 pm on the same day.
In the Workers Compensation Commission Rules 2011 (the Rules), a document may be lodged by electronic communication by sending an electronic communication to the Commission’s email address (Pt 8 r 8(4)(e)). For the purpose of sub-r (4)(e), any document that is lodged with or served on the Commission by electronic communication is received by the Commission “at the time of entering the information system at [the Commission’s] email address” (Pt 8 r 8.1(6)).
It follows that the appeal was made within the time limit in s 352(4) of the 1998 Act.

Fresh evidence/additional evidence

One of the reasons the Arbitrator gave for finding in favour of Mr Xie was the absence of evidence from Mr Zheng’s son, Jiefu (James) Zheng, who lived at the Thornleigh premises for the whole period Mr Xie alleges he also lived there.
Mr Zheng seeks to tender on appeal a statement from James dated 6 June 2011. The evidence in this statement may be summarised as follows:
(a)     James is a university student who was born in June 1990 and is currently 21 years of age;
(b)     he lives with his parents at the Thornleigh premises;
(c)     he knows Mr Xie as a friend of his father who would occasionally visit the family home;
(d)     he recalled the odd occasion when Mr Xie would stay the night, particularly after a function or if he had visited late. He did not recall Mr Xie spending any significant time at the house immediately after he arrived in Australia or after the injury to his eye;
(e)     at no time was he aware of where Mr Xie was living, but he “felt that he was living somewhere in the Hornsby area”. He “categorically” stated that at no time did Mr Xie live full-time at the Thornleigh premises;
(f)      over the years, his parents had a number of friends visit and sometimes, when relatives visited from China, they would stay for a few weeks at the home. He did not recall any time in the last 10 years when Mr Xie spent anything more than one or two nights at the house and that was normally after a function, when he slept on the lounge;
(g)     Mr Xie worked at a local restaurant, the Lee Central Park Restaurant. When James came home from school at about 3.30 pm or 4.00 pm, Mr Xie would be present watching television before returning to work;
(h)     he was not aware of Mr Xie “being employed by either of his parents to do any work on their behalf particularly at the Wahroonga property at 3 Roland Avenue Wahroonga”, and
(i)      he had visited the Wahroonga premises on numerous occasions, but did not recall ever seeing Mr Xie there.
In support of the application to rely on the above additional evidence, counsel for Mr Zheng, Mr de Greenlaw, who also appeared at the arbitration, submitted:
(a)     it was not apparent, either during the arbitration hearing or in submissions made after the hearing, that the absence of evidence from James was an issue. If it had been raised as an issue, Mr Zheng could have sought an adjournment and applied to rely on the evidence now sought to be admitted, or could have made submissions on the failure to adduce such evidence;
(b)     as it was not an issue at the arbitration, the Arbitrator’s reliance on the absence of evidence from James denied Mr Zheng the opportunity to address the issue;
(c)     it was reasonable for Mr Zheng to suppose that sufficient evidence had been adduced in relation to the issue of Mr Xie’s residence to “disturb the onus of proof which was incumbent on [Mr Xie] without the introduction of a statement from [Mr Zheng’s] son” who was aged between 11 and 16 at the material time;
(d)     the evidence from James has probative value and, in view of the emphasis the Arbitrator placed on the absence of it, may well lead to a different result;
(e)     it is just to admit evidence that is credible and may impact on the outcome;
(f)      evidence was adduced at the arbitration from three adults who lived in the house at the relevant time;
(g)     Mr Zheng relied on his legal representatives to prepare his defence to the claim and it was reasonable for him to have done so. The actions of his solicitor should not be imparted vicariously to the client (Stollznow v Calvert [1980] 2 NSWLR 749 (Calvert).
Counsel for Mr Xie, Mr Beauchamp, who also appeared at the arbitration, has opposed the introduction of the additional evidence. He submitted that:
(a)     the matter was not run in the ordinary way a claim is run in the Commission;
(b)     this was an extraordinary matter and, as such, it was approached in a relatively novel way in order to shorten the time in which it was to be before the Commission;
(c)     in the two days of the arbitration, largely used for cross-examination, only a very small portion of the evidence was touched on. It became clear to all parties that, were the matter to continue, it would have taken weeks to conclude. A pragmatic approach was adopted by all parties in an attempt to reduce the time required to complete the matter;
(d)     to allow the additional evidence to be admitted would mean that cross-examination and further evidence in response would be required. To allow that course would put this evidence in a different category to all other evidence that was put forward in the case and would have a significant effect on the forensic decision made by Mr Xie relating to the way the case had been run and the concessions he made to shorten it;
(e)     the additional evidence contains a number of hearsay and opinion paragraphs that can have no proper factual basis or foundation. Its “phraseology” bears a striking resemblance to the evidence from “Mr Lin” (as there is no evidence from a Mr Lin, it is unclear which witness this submission intended to refer to);
(f)      there was no shortage of evidence called from neighbours, relatives, friends and strangers to comment on the issue of Mr Xie’s residence and whether he worked at the Wahroonga premises, and
(g)     it was well known to the parties that such evidence would be crucial in the determination of the claim. Mr Zheng would have been aware that a statement from someone who resided full-time at the Thornleigh premises and who is now an adult could have been a critical factor in determining the claim. Despite that, Mr Zheng did not obtain that statement until after the judgment.
In reply, Mr de Greenlaw submitted that:
(a)     in his written submissions at the arbitration, Mr Beauchamp made specific references to the nature of the evidence that had not been called, but made no reference to the failure to call any evidence from Mr Zheng’s son;
(b)     had the issue been raised at the arbitration, Mr Zheng could have applied to adduce evidence, or made submissions, which may have been persuasive;
(c)     the additional evidence is credible, there is a high degree of probability that there would be a different decision if it is admitted and/or it is just to admit the evidence in all the circumstances of the case, and
(d)     the application to admit the additional evidence seeks to “discharge the responsibility” to explain gaps in the evidence Tobias JA referred to in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock).
I do not accept that Hancock provides any assistance on the question of fresh evidence or additional evidence on appeal in the present matter. Tobias JA’s obiter comments were not directed at an application to rely on fresh evidence or additional evidence on appeal, but to the preparation and presentation of cases generally in the Commission, primarily before arbitrators. Moreover, Hancock concerned a review under s 352 before it was substantially amended by the Workers Compensation Legislation Amendment Act 2010. The current appeal is governed by the new s 352, which applies to decisions made on or after 1 February 2011 and is in substantially different terms to the previous section.
Fresh evidence or additional evidence on appeal is now governed by the amended s 352(6) of the 1998 Act, which provides:
“(6) 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.”

As it has not been suggested that the evidence from James was not available, or could not reasonably have been obtained by Mr Zheng before the arbitration, the first limb in s 352(6) has not been satisfied. His statement can still be admitted if it is established that the “failure to grant leave would cause a substantial injustice in the case”.
In assessing whether failure to grant leave to admit the evidence would cause a substantial injustice, it is necessary to consider the nature of the evidence, the issues in the case, the potential impact of the evidence on the outcome, the history of the matter, and the future conduct of the case. If the appeal is likely to succeed without the fresh evidence and the outcome is a new arbitration, the exclusion of the evidence will cause no injustice because the evidence can be tendered at the new hearing. If, however, the appeal would fail without the fresh evidence, it may be appropriate, other things being equal, to admit it.
Given the nature of the dispute in the present case, evidence from a person who lived at the Thornleigh premises between 2001 and 2008, albeit from a child, is relevant. In finding in favour of Mr Xie, the Arbitrator gave six reasons. One of those reasons was the absence of evidence from James. Whether he used the absence of evidence from James as a ground for accepting that Mr Xie had established a prima facie case, as Mr de Greenlaw has submitted, or merely as a ground for drawing an inference in favour of Mr Xie, is not explained in his decision. It is therefore not possible to say that the absence of evidence from James was a critical factor in his determination and that its exclusion on appeal will cause a substantial injustice.
In all the circumstances, and as the matter must be re-determined in any event, I am not satisfied that the failure to admit the statement from James will cause a substantial injustice in the case.
The application to tender the statement from James Zheng as additional evidence on appeal is refused.

Interlocutory

Though the parties made no submissions on it, it is arguable that the Arbitrator’s determination was interlocutory, because it did not finally determine the parties’ rights. For the avoidance of doubt, I am of the opinion that, given the nature of the issues in dispute, determining the appeal is necessary and desirable for the proper and effective determination of the dispute and, if necessary, I grant leave to appeal.

MR XIE’S CASE

Sheng Li Xie

Mr Xie has provided three statements and gave oral evidence at the arbitration.
In his statement dated 3 March 2009, he said that he was born in China in 1958. He is married with one son. His wife and son both live in China. He came to Australia in September 2001. In China, he worked as a “salesman in a factory manufacturing electrical components”. He gave his address as 9 Butterfield Street, Thornleigh, the residence where he said he had lived since coming to Australia in 2001. He said he rented a room at that residence from his friend, Yue Zheng, for $100 per week. He said that, between 2001 and 5 September 2006, he worked for a variety of employers on a casual basis as a “kitchenhand, factory worker, gyprocker, etc”. He said that his last job was as a builder with A/C Australia Pty Ltd where he received $240 per day. He started that job in about July 2006.
He said that Mr Zheng purchased a property at 3 Roland Avenue, Wahroonga in about 2003. Mr Zheng told him that he had attended a course and obtained an owner/builder’s licence intending to renovate the house. He said that Mr Zheng asked him to work for him in the new house and that he would provide him with free food and accommodation instead of wages. He said that, in mid-2003, he started to work for Mr Zheng “in his new house” every weekend plus some weekdays if he was “not working sometimes”. His duties involved demolishing “a part of the house, building frame, gyprocking etc”. He said that Mr Zheng supplied all the tools and materials, but did not provide him with any training or safety equipment.
Mr Xie said that, at the end of August 2006, his friend, Mr Ma, referred him to another builder, Mr Dong, who had building contracts in Perth and recruited experienced gyprockers in Sydney. He took two days off work and met Mr Dong on or about 1 September 2006. Mr Dong said he could offer Mr Xie a job at $35 per hour and that his company would provide him with free accommodation.
As Mr Zheng knew Mr Xie was off work at home, he asked him to lay tiles for him on an outdoor stair (presumably at the Wahroonga premises). Mr Xie added (at [11]):
“On Tuesday 5 September 2006, I started working for Mr Zheng in about 9.30 am. At about 1.00 pm, while I was cutting a tile with a grinder, a piece of the tile went into my right eye. The grinder did not have a safety cover and Mr Zheng did not provide me with goggles.”
He phoned Mr Zheng, who arrived with his wife, Jie Wang, and drove him to Hornsby Hospital. He was then transferred to Royal North Shore Hospital by ambulance and had surgery on his right eye. He has not returned to work since his accident and Mr Zheng has continued to provide him with free food and accommodation, and paid his medical expenses.

The next statement from Mr Xie is unsigned, but said to be dated 18 May 2009. This statement was taken by an investigator retained by WorkCover at the office of Wang & Associate Solicitors, 251 Liverpool Road, Ashfield. The interview was conducted with an interpreter. In this statement, Mr Xie gave his address as 41 Dennison Street, Hornsby. He said that he first met Mr Zheng when they worked together in a business involving electronic elements in China. He stated that, when he first came to Australia, he lived with his friend, Yue Zheng, at 9 Butterfield Street, Thornleigh. He said that two other non-family members also lived at that address, but moved out at the end of 2001. One of those people, Mr Zhang, returned to China and the other, Mr Wang, lives at Ashfield. He said the house was occupied by Mr Zheng, Mr Zheng’s wife, Mr Zheng’s son, Mr Zheng’s sister, a nephew of Mr Zheng’s wife, and another boy named Hong Tao Jiang, who was a son of Mr Zheng’s friend.
Mr Xie said that Mr Zheng met him at the airport on his arrival from China and took him to his home. He said that he lived with Mr Zhang (not the appellant) and Mr Wang in the room next to the garage. When they left, he lived in that room on his own. He paid Mr Zheng $100 per week in cash for accommodation and food. In addition, he did odd jobs between 2001 and 2003. He said he stopped paying the $100 when Mr Zheng purchased the Wahroonga premises. At that time, “various others” employed Mr Xie on a casual basis. He said that he was “sometimes occupied carrying out that work for four days per week”.
He said he agreed to “work on Mr Zheng’s Wahroonga premises in exchange for free food and accommodation instead of wages”. He said that Mr Zheng employed other people to work on the house, including tilers, someone to apply cement to the walls, an electrician, and someone to do work on the flooring. He did not know the names of these people. Some were locals and some were from Korea. There was a Yugoslav painter. He recalled that the Korean person did the floor and wall tiling.
He said that Mr Zheng asked him to lay tiles at the Wahroonga premises on an outdoor stair area at the back of the house. The tiles were about 30 cm x 30 cm or 40 cm x 40 cm. He said he had been working on the staircase for two to three days prior to his injury and he had been doing the job on his own. Before the tiling, some sand had been laid between the cement and the tiles. He said that Mr Zheng and another man did the mixing and that he was the only tiler. The sand was needed because the cement surface of the stairs was uneven.
Mr Xie had not laid tiles before. He said that Mr Zheng provided him with a cutting machine and a grinder. He worked on the staircase from top to bottom. He had reached the point where he was just about to finish the job and only had one more piece to lay at the corner of the doorframe. Mr Zheng said that he had something to do at home that day and was not at the Wahroonga premises at the time. There were no other tradespeople working there at the time.
As he was cutting a tile with the grinder, a piece of tile went into his right eye. He rang Mr Zheng and told him he had hurt his eye. Mr Zheng and his wife arrived at the Wahroonga premises in about 8–10 minutes and drove Mr Xie to Hornsby Hospital.
Mr Xie said that he lived at the Thornleigh premises until about June 2008, prior to the Beijing Olympics. He then moved to 3 High Street, Mount Kuring-gai and lived there until the end of 2008. At the time of his statement, he lived at Hornsby. He denied living at Hornsby at the time of the accident, but agreed that he had a Hornsby address (104/107–115 Pacific Highway, Hornsby) on his driver’s licence. He said that Mr Zheng’s friends lived at that address. One of those friends was Ms Ying Ma. He said that the only reason the Hornsby address was on his licence was because that was the address Mr Zheng “organised” for him.
Mr Xie said that he paid for the treatment from Royal North Shore Hospital and that Mr Zheng paid him back. He said that Mr Zheng paid all bills up to the time Mr Xie moved out of the Thornleigh premises. He said that Mr Zheng paid the bills because he had no money and had “become injured working for him”. He said he moved out of the Thornleigh premises because Mr Zheng’s family were “becoming unfriendly” towards him and he felt they were driving him out.
Mr Xie said the following people knew that he lived at the Thornleigh premises:
(a)     Mr Zheng’s sister, Yan Zheng;
(b)     Yan Zheng’s husband, and
(c)     Dong Ming Wen.
Mr Xie denies that Mr Zheng asked him to repay the money he paid for medical treatment. He said that Mr Zheng told him at Royal North Shore Hospital that he would be “responsible to the end” for the injury no matter how much he spent. Mr Zheng said that Mr Xie was to go ahead with his medical treatment and that he would “be ready to pay all the bills, no matter how much was to be spent”.
Mr Xie said he had been referred to a lawyer by a friend roughly 18 months to two years after the accident. He had a discussion with Mr Zheng, who said that he could not give him any compensation when the treatment on the eye remained uncertain.
Mr Xie provided a third statement to an investigator retained by his solicitor. That statement was initially unsigned and undated, but ultimately signed on 14 July 2010. Mr Beauchamp did not press [4]–[16] inclusive of that statement. Mr Xie said that Mr Zheng helped him obtain a visa and made arrangements for him to come to Australia. He was not aware of what arrangements Mr Zheng made or what addresses were given in various documents. All of that was attended to by Mr Zheng. When he obtained his driver’s licence or other matters, that was entirely a matter for Mr Zheng because he completed all of the forms on behalf of Mr Xie. Mr Xie said he contacted Mr Zheng after the injury because “that was where I lived and who I was working for at the time of injury”.

Dong Ming Wen

Mr Wen provided an unsigned statement to WorkCover’s investigator on 10 December 2009. He said that he visited the Wahroonga premises on a number of occasions and saw Mr Xie at the premises “working on the ceilings, building the property and things like that”. The work continued for a couple of years and during 2006. He was unable to say if Mr Xie had been employed by Mr Zheng at any time. He did not know if Mr Zheng paid any money to Mr Xie to work at the property.
As far as he was aware, Mr Xie lived at Mr Zheng’s home in the room on the left hand side of the garage. He said that, prior to the accident, Mr Xie lived upstairs at the Thornleigh premises. He did not know how long he lived at the Thornleigh premises, but he said it was “several years; a long time”. He had visited Mr Zheng at the Thornleigh premises.
Mr Wen also provided a handwritten statement dated 11 October 2009. He said that he knew Mr Xie and Mr Zheng when they worked at the same factory in China in 1977. He came to Australia in 1989 and, in 2002, he visited Mr Zheng at 9 Butterfield Street, Thornleigh. He saw Mr Xie mowing the lawn in the front yard of that residence. Mr Xie said to him “I came to Australia last year and now live in Zheng Yue’s house”. Since then, he kept contact with Mr Xie and visited him at the Thornleigh premises.
In 2003, Mr Xie said to Mr Wen “Zheng Yue bought a house in Whroonga [sic] and I work there. When you drive home after work, you pass there. Come to see me. I normally will be there during weekdays”. Mr Wen said he visited Mr Xie while he worked at the Wahroonga premises about once every two or three months between 2003 and September 2006. In total, he visited Mr Xie at the Wahroonga premises on more than 10 occasions. He saw Mr Xie gyprocking, cleaning and performing a variety of work. Mr Wen noted that sometimes Mr Xie was working at the Wahroonga premises on his own, at other times he was working with Mr Zheng and that sometimes there were other people also working there.
Mr Wen visited Mr Xie at the Thornleigh premises in September 2006. He said that he was aware that Mr Xie lived in a room next to a garage at Mr Zheng’s house.

Mei Qing Shen

Ms Shen provided a statement on 20 May 2010 in which she said that she had visited the Thornleigh premises in August 2006 with her parents. She said it was obvious that Mr Xie was living at those premises.

Aisen Ju

Mr Ju signed a statement on 20 May 2010 in which he said that Mr Xie had told him that he lived in Mr Zheng’s house.

Chun Fang Hu

Ms Hu also provided a statement on 20 May 2010. She said that she visited Mr Xie at the Thornleigh premises in about August 2006. When she attended the premises with her husband and daughter, Mr Xie opened the door and they sat in the lounge room and chatted for about one-and-a-half hours. Mr Xie served tea and fruit. She visited him again at the Thornleigh premises in about November 2006. She arrived with her husband at about 2.00 pm and Mr Xie opened the door.

Jin Xian Zhao

Mr Zhao signed a statement on 4 June 2010. He knew Mr Zheng when he lived in China and regained contact with him in about 2000. He visited Mr Zheng’s house once or twice a year since 2000. On each occasion he visited, he saw Mr Xie. On most of those occasions, Mr Xie cooked for them.
Mr Zheng told Mr Zhao that he had purchased a property at Wahroonga and invited him to visit it. Mr Zhao visited the Wahroonga premises about seven or eight times. During those visits, he recalled seeing Mr Xie working on the property on five or six occasions. In about October 2006, he attended Mr Zheng’s house at Thornleigh for dinner. Mr Zheng told him that Mr Xie had injured his eye while cutting tiles. Mr Zhao again saw Mr Xie at Mr Zheng’s house.

Ray Hall

Mr Hall owns 1 Roland Avenue, Wahroonga. He recalls major renovations being carried out at 3 Roland Avenue between 2004 and 2008. Though he thought Mr Xie looked very familiar, he could not be 100 per cent sure that Mr Xie worked on the renovation.

Jennifer Quilty

Ms Quilty lives at 5 Roland Avenue, Wahroonga, a house located at the rear of 3 Roland Avenue. Ms Quilty spoke to the investigator retained by Mr Xie’s solicitor in the presence of Mr Xie. She could not initially positively identify Mr Xie, but Mr Xie said that Ms Quilty had owned two blond Labrador dogs. Ms Quilty confirmed that she had previously owned two such dogs. Ms Quilty was then convinced that Mr Xie had worked at 3 Roland Avenue.

Vivienne Parsons

Ms Parsons has lived at 6 Butterfield Street, Thornleigh since 1970. She spoke to an investigator about the claim in the presence of Mr Xie. She recalled seeing Mr Xie washing his car, a Ford Falcon, with a hand-held hose during a period of rigid water restrictions. She believed that she saw Mr Xie most mornings at around 7.30 am, when she walked to the railway station, though she could not be positive that it was him. In her view, it was “quite obvious” that Mr Xie had “business or an association with 9 Butterfield Street Thornleigh”.

Klaus Poetsch

Mr Poetsch has lived at 12 Butterfield Street, Thornleigh since 1992. He recalled the Len Koncek street party and the attendance of Mr Xie and Mr Zheng. He recalled seeing Mr Xie tinkering with his white Ford Falcon on the street. He also remembered Mr Xie building a retaining wall at 9 Butterfield Street and then mounting two lions at the entrance of the driveway.

David Samild

Mr Samild has lived at 14 Butterfield Street, Thornleigh for about 35 years. He spoke to an investigator on 19 December 2009 and gave a statement on 23 September 2010. In about 2004 or 2005, Mr Samild organised a street party to celebrate the building of a 40-foot catamaran by Len Koncek, the owner of 10 Butterfield Street, Thornleigh. He could not recall either Mr Zheng or Mr Xie attending the boat party, but he said that he asked Mr Xie a number of questions relating to the party that he could only have known if he had attended. He was able to answer all of those questions. He did not recall Mr Xie installing or mounting two lions at the entrance to the driveway of 9 Butterfield Street, Thornleigh. He recalled seeing an Asian gentleman who regularly worked on an old Ford in front of 9 Butterfield Street. He could not categorically say whether that was Mr Xie. He was unable to say whether or not Mr Xie resided at the Thornleigh premises, but he saw him regularly at or around those premises on weekends and he seemed to have access to the premises.

MR ZHENG’S CASE

Yue Zheng

Mr Zheng provided a statement to WorkCover’s investigator on 31 March 2009. He described himself as a self-employed importer and exporter. He said that he lived at the Thornleigh premises with his wife, Jie Wang, and his son James since 1999. With respect to where Mr Xie lived, Mr Zheng said:
“17. He came here to Australia on his own. Mr Xie did not live here; he did not stay here permanently. He stayed here the odd night after drinks.
18. I don’t know where Mr Xie lived; he tended to move around and he lived here and there sharing with various people.”
Mr Zheng said the frequency with which he saw Mr Xie varied. Sometimes he would see him often; other times he would not see him for a while. He denied that Mr Xie lived at the Thornleigh premises, stating that it was “not his address at any time and he did not live here at any time nor did he pay me $100 per week rent”.
Mr Zheng did not know what kind of work Mr Xie carried out. Mr Xie never showed him any qualifications or mentioned having any certificate. He never saw Mr Xie working anywhere.
With respect to the Wahroonga premises, Mr Zheng said that he purchased the property in 2003 and that he had an owner/builder’s licence for the purpose of carrying out renovations. He denied that he had asked Mr Xie to do some work for him at the property. He said, “I did not see any qualifications and I did not provide any jobs for him”. He said the allegation that he provided work in exchange for food and accommodation was not true. He said that Mr Xie came to visit him at the Wahroonga premises. He did a small part of the renovation work himself, but mainly organised and hired other people to do it. He had no records “to hand of any of the trades” he used on the job. He said he would have to check if he had kept any records.
With regard to the provision of tools and equipment, Mr Zheng said “I never hired him so I didn’t need to provide him with anything at all”. He denied asking Mr Xie to lay tiles at the Wahroonga premises. He denies that Mr Xie was cutting tiles at the Wahroonga premises on 5 September 2006 or on any other day.
In respect of the tiles on the stairs at the back of the Wahroonga premises, he said:
“I put new tiles down on the back stairs during the renovation but I cannot tell you the date or the year. They are cream coloured ceramic about 350 mm x 350 mm or 400 mm x 400 mm.
…
The tiling was done by someone from South Korea. They supplied their own tools and equipment. They did not engage Mr Xie to help them. I tended to pay these people cash so I don’t believe I would have any kind of documentation which would give you a date that the work was done or the specifics of the job.”
He agreed that he received a phone call from Mr Xie, who said he had hurt his eye while doing something at home, and asked if Mr Zheng could drive him to hospital. When Mr Xie said “home”, Mr Zheng thought he meant “somewhere around Hornsby; I don’t know exactly”. Mr Xie said he would be waiting “out on the Pacific Highway”. Mr Zheng said he picked him up from the street “near 107 Pacific Highway Hornsby”. When he picked him up, Mr Xie said he had been doing some tiling “at his home”.
Mr Zheng said the following exchange occurred at Hornsby Hospital:
“67. At the hospital [Mr Xie] was asked some questions and given an x-ray. [Mr Xie] was asked whether this was a work related injury. [Mr Xie] told the hospital that he was doing something at home.”
Mr Xie was transferred from Hornsby Hospital to Royal North Shore Hospital by ambulance. Mr Zheng and his wife travelled with him in the ambulance and stayed at Royal North Shore Hospital until after midnight.
With respect to the payment of hospital expenses, Mr Zheng said:
“83. After some time Mr Xie said to me that he wanted to borrow some money from me to pay for his treatment.
84. I talked to my wife and as we understood that as he had an injury we felt we couldn’t refuse. I also learned that he was a gambler.
85. I said to him that I could lend him some money but only for his medical expenses.”
Mr Zheng gave Mr Xie money “periodically” rather than giving him one lump sum. The hospital said that he owed $2,200 and Mr Zheng transferred that amount to Mr Xie’s account. He believes that he loaned Mr Xie about $6,000. Mr Zheng last saw Mr Xie when he came to the Thornleigh property in the middle of 2008. He related the conversation that occurred at that time as follows:
“94. He did not ask me for any money. In fact I asked him for money. He said that he had no job at that time.”
At that time (presumably 2008) Mr Xie drove a white Ford Falcon.
Mr Xie once asked Mr Zheng if he could claim his injury by using the fact that Mr Zheng was an owner/builder. Mr Zheng said he did not know, but added that “as we were friends it was hard to refuse however I did not agree to it at all”.
Mr Zheng provided a further statement on 26 August 2010. He said he uses the name Tom as his unofficial first name. He was self-employed as an importer and wholesaler of linen products. He said that, since moving to the Thornleigh premises, he opened his doors and welcomed people from China when they came to Australia to visit as tourists or on business. Guests usually stayed for no more than a few weeks. Since 2000, he had at least 50, possibly even up to 100, guests stay at his home free of charge. One of those guests was Mr Xie, who stayed with him in 2001. He had been friends with Mr Xie in China more than 20 years ago.
Before leaving China, Mr Xie contacted Mr Zheng and said he was coming to Australia on a business trip and wanted to visit him. When he arrived, Mr Zheng offered him his living room, as he had no rooms available at the time. Mr Xie stayed at the Thornleigh premises for no more than two weeks. Mr Zheng did not know where Mr Xie went after he left the Thornleigh premises, but thinks he stayed with another person from China who lived in the Hornsby area. He remained in contact with Mr Xie, who often visited.
When Mr Xie stayed with him, he did not ask for money or anything in return. Mr Xie may have assisted from time to time with minor chores such as removing rubbish. Mr Xie was a very good cook and would help Ms Wang with the cooking. About a month or so after having left the Thornleigh premises, Mr Xie found work at the Lee Central Park Restaurant at Thornleigh. During his work breaks between 2.00 pm and 4.00 pm, he would visit Mr Zheng at the Thornleigh premises and watch television before returning to work.
Mr Zheng suspects that Mr Xie is or was in Australia illegally. He knew that Mr Xie held several jobs over the years and lived at several different addresses.
Mr Zheng started renovations at the Wahroonga premises in mid-2004, having obtained an owner/builder’s licence at the start of 2004. When he applied for the owner/builder’s licence, he spoke to Mr Xie about it. Mr Xie said he was “interested in building as he thought he could make good money out of it”. However, Mr Xie did not have any skills or experience in that field.
With respect to the renovation work on the Wahroonga premises, Mr Zheng said:
“17. The renovations continued for four years and the house continued to remain vacant during this time. I took my time with the renovations, and whilst I did some work myself, I also employed various tradespeople. During these years I continued to see Mr Xie from time to time, and he would often visit the house at Wahroonga to watch how the tradesmen worked. He was interested in learning a trade, however at no time did I employ him or ask him to perform any duties at the property. Mr Xie also attended the property on his own so if he ever assisted any of the tradespeople then it was without my knowledge or consent.”

Mr Zheng confirmed that he received a telephone call from Mr Xie at about midday on 5 September 2006 saying that he had damaged his eye. Mr Zheng and his wife picked up Mr Xie opposite a Shell petrol station near the corner of William Street and the Pacific Highway, Hornsby, next door to 107–115 Pacific Highway. Mr Xie said he had injured his eye “whilst at home”, but he was not specific. At the hospital, the doctor asked Mr Xie if he had injured his eye at work and he said no. He told the doctor he was cutting tiles at home with a grinder and a piece of tile flew off and hit him in the eye. Mr Xie gave the hospital Mr Zheng’s telephone number as a point of contact.
After leaving hospital, Mr Xie stayed at the Thornleigh premises for two or three weeks because there was nobody to look after him. Mr Xie asked to stay with Mr Zheng; it was not something that Mr Zheng offered.
Some months after Mr Xie was discharged from hosptal, Mr Zheng was contacted by the hospital seeking either Mr Xie’s Medicare card details or payment. Mr Zheng told Mr Xie that the hospital needed to be paid, which Mr Xie subsequently did.
Mr Zheng said he did not know where Mr Xie was staying “before this” and did not know if he was living alone or with somebody. He never asked Mr Xie where he was living because he preferred not to know, particularly as Mr Xie may have been in Australia illegally on an expired visa.
Once Mr Xie’s injury healed enough for him to be able to drive, he left the Thornleigh premises and “returned to his own home which he had told me was 29 Hunter Street Hornsby”.
Sometime after the injury, Mr Xie asked Mr Zheng to loan him some money for further treatment. Mr Zheng felt that he could not refuse him a loan and said that he would only loan him money if it was used for medical expenses and not gambling. He loaned Mr Xie about $6,000 over a two-year period.
In respect of Mr Xie making a claim, Mr Zheng said:
“29. Sometime in mid 2008, Mr Xie approached me to discuss making an insurance claim. Somebody had told him about workers compensation insurance and he wanted to ask me whether he could make a claim and tell the insurance company that he injured his eye whilst working for me at my Wahroonga property, that way he would receive money to pay for his treatment. I did not say yes or no, but I did tell him I would think about it as Mr Xie was a very close friend and I wanted to help him. I knew that to make a false claim would be illegal but I had never been in this situation before and did not even know what sort of insurance I had at the property. I know that the tradespeople I employ should all have their own insurance cover. Nothing further came of Mr Xie’s enquiry.”
A few months after this conversation, Mr Zheng returned to China for a couple of months. While he was away, he was aware that Mr Xie lodged a workers compensation claim stating that he was injured whilst laying tiles for Mr Zheng at the Wahroonga premises. About a week or so later, he received a telephone call from his solicitor advising that a hearing or teleconference had been arranged. He said he was very angry about that, as he believed Mr Xie did it knowing that he was away. He said he was not too concerned about the claim as he knew it was false. A week or so later, Mr Zheng was contacted by his solicitor, who told him that the case had been dropped.
A few months after his return from China, a WorkCover investigator contacted him and took a statement in March 2009. Mr Zheng confirmed his previous statement that he had never offered Mr Xie employment and that Mr Xie did not work for him or do him any favours at the Wahroonga premises. He stated that Mr Xie was not qualified and that he only ever used tradespeople. He repeated that the renovations did not commence until mid-2004, not 2003 as stated by Mr Xie. He denied having paid for Mr Xie’s medical expenses and reiterated that he merely loaned him money which was deposited to his bank account on about five occasions. He never gave Mr Xie cash and never paid any bills directly to the hospital or any medical provider.
With regard to the room next to the garage at the Thornleigh premises, Mr Zheng said that, at the time, the room and the garage were used for the storage of goods because he did not have a warehouse. Access to the room was via the garage doors, which were always locked for the security of the goods stored in the garage. Neither the room nor the garage has a toilet or washbasin.
Mr Zheng does not recall who Mr Zhang and Mr Wang were, but he did not doubt that they may have stayed at the Thornleigh premises. However, he said that they would have stayed “very short term” and would have stayed in the living room where Mr Xie stayed.
Mr Zheng denied that Mr Xie ever paid $100 per week for accommodation at the Thornleigh premises.
While he agreed that there is an outdoor staircase at the back of the Wahroonga premises, Mr Zheng said he had a qualified tiler on site who did all of the tiling. The tiler was a Korean man who had about three workers with him. At no time did he give Mr Xie a tile-cutting machine or a grinder, and at no time did he have any of those items at the Wahroonga premises.
With respect to payments made to the Korean tiler, Mr Zheng said:
“47. I do not recall the name of the Korean tiler. He was referred to me by another man I know and the tiler was paid in cash. Prior to the completion of the job, I short paid him $1,000 because I was not happy with some of the internal work. The tiler never came back to fix the work and I never paid him the balance so I was not provided with any receipt. I do not have any contact details for the tiler and I am unable to try to track him down now as I don’t know where to start. My friend, who recommended him to me, does not know where he is.”
Mr Zheng said that no-one was present at the Wahroonga premises on the day of Mr Xie’s accident. He had to open the property to allow tradespeople access and he had not been to the property on 5 September 2006. He said the only reason Mr Xie was ever at the Wahroonga property was to “watch the tradespeople”. He did not believe Mr Xie was at the Wahroonga premises on 5 September 2006 because he picked him up outside his home at Hornsby.
With regard to the allegation that Mr Xie did gyprocking at the Wahroonga premises, Mr Zheng said that that work was “only done by qualified tradespeople and none of it was done by Mr Xie”.
Mr Zheng does not know Ying Ma, the person Mr Xie alleges lived at 104/107–115 Pacific Highway, Hornsby. He denied having anything to do with arranging for the Hornsby address to appear on Mr Xie’s driver’s licence.
Mr Zheng said that he knows Mr Wen from when they lived in China. However, in the 20 years or so since Mr Wen has been in Australia, Mr Zheng has only seen him on about five occasions. They were not friends and did not socialise. Mr Wen had only been to the Thornleigh property once and that was to see Mr Xie after his injury. He did not know that Mr Wen had been to the Wahroonga premises.
Mr Zheng denies having told Mr Xie at Royal North Shore Hospital that he would be responsible for his injury.
If Mr Wen saw Mr Xie working at the Wahroonga premises, Mr Xie must have taken it upon himself to do work or was assisting one of the tradespeople.
Mr Zheng denied that he worked in the same factory as Mr Wen and Mr Xie. However, he was often at the factory where Mr Wen and Mr Xie worked because his mother’s house was next door and she worked in the factory.
Mr Zheng did not know Chun Fang Hu, but said it was possible that she had been to his house. He did not recall Ms Hu visiting Mr Xie at the Thornleigh premises in either August or November 2006. However, he conceded it was possible that Mr Xie had her meet him at the Thornleigh premises so she could also meet Mr Zheng, as she had also worked at the factory next door to his mother’s house in China.
Mr Zheng agreed that Mr Zhao had visited the Wahroonga premises, but only on three occasions. If he visited on more occasions, he thought it must have been at the invitation of Mr Xie.

Jie Wang

Jie Wang is Mr Zheng’s wife. She knows Mr Xie to be Mr Zheng’s friend. She said that Mr Xie did not live at 9 Butterfield Street, Thornleigh between 2001 and 2008, or at any time. She said that, on the occasion of big events during the year, lots of guests came to her home and Mr Xie helped with the cooking. She recalled that he liked to drink and that, on a number of occasions, he drank too much and stayed overnight. He drove a white Ford. She estimated that Mr Xie slept overnight a couple of times each year, but only after big events like Chinese New Year.
She did not know where Mr Xie lived between 2001 and 2008, or where he currently lived. She did not know Mr Zhang or Mr Wang and denied that they had lived at the Thornleigh premises in 2001 or at any time. She agreed that her husband’s sister, Yan Zheng, stayed at the Thornleigh premises sometimes when she was in Sydney before she married. She agreed that her nephew, Xiao Xiao, lived at the Thornleigh premises between 2002 and 2004 while he was studying. She did not know Hong Tao Jiang. She denied that Mr Xie lived in the room next to the garage, or in any other room at the Thornleigh premises. She has a storeroom next to the garage where she keeps her embroidering products. It has never been a bedroom. When Mr Xie stayed overnight, he did not sleep in the room next to the garage.
She said it was untrue that Mr Xie paid $100 per week to Mr Zheng in return for accommodation and food. Mr Xie did not live at the Thornleigh premises. She said it was untrue that Mr Xie stopped paying $100 per week when Mr Zheng purchased the Wahroonga premises. She did not know what work Mr Xie did. She disputed Mr Xie’s claim that she was, along with her husband, engaged in a souvenir stall in a market. She agreed that she has a neighbour named La La who lives at 11 Butterfield Street, Thornleigh, but she had no knowledge of any association between La La and Mr Xie.
She denied that Mr Xie carried out any work at the Wahroonga premises at either her request or her husband’s request. There was no contract between her husband and Mr Xie to carry out work at the Wahroonga premises.
Ms Wang recalled driving with her husband to pick up Mr Xie on the Pacific Highway at Hornsby when he injured his eye. She recalled that he was standing opposite a petrol station with one hand over one of his eyes. He said that he was “hit on his eye with something”, although she could not recall what. She added:
“49. I clearly remember that when he was asked where it had happened, he waved his hand indicating some buildings opposite the petrol station on the same side of the road he was standing on. He had been standing on the left hand side of the road next to a self storage place. The petrol station was on the right. It was possibly a Shell service station but I cannot be sure”.
She was aware that Mr Xie borrowed some money from “us”. She did not know the exact figure, but it was around $6,000 or $7,000. She was not happy with her husband for lending Mr Xie the money.

Yan Zheng

Yan Zheng is the sister of Mr Zheng. She first met Mr Xie when she got married in September 2001. The wedding was at 9 Butterfield Street, Thornleigh. She said that her brother and his wife were very kind-hearted people and they offered help to people who were in difficulty. When newcomers arrived from China, they invited them to their home. She has attended banquets at the Thornleigh premises and met Mr Xie on those occasions. There were many people at the house during the banquets, many of whom she did not know. She said that Mr Xie was a good cook and that he would help out with the cooking.
Yan Zheng would visit the Thornleigh premises once a week as her sister-in-law, Jie Wang, was busy with her business and she would “help out”. Sometimes she met Mr Xie and sometimes not. With respect to whether Mr Xie lived at the Thornleigh premises, she said:
“28. Getting back to the original question as to whether Mr Xie lived at 9 Butterfield Street, no, I don’t believe so at all. I have no reason to believe that he lived here at all: there was no trace of him doing his laundry for example.
29. I don’t recall anyone else living here apart from the immediate family however I recall that my sister-in-law’s nephew was staying here. His name is Xiao Xiao. He is possibly nearly 30 years of age.”
Yan Zheng did not know anything about Mr Xie’s employment and had “little contact with him”. Her sister-in-law told her that Mr Xie hurt himself in his home.

Shi Ping Ju

Mr Ju gave a statement on 27 August 2010. He said that Mr Zheng contacted him in late 2006 because he wanted to get in touch with Mr Ju’s father, a retired eye surgeon. Mr Ju denied that he was ever contacted by Ms Hu to ask for Mr Zheng’s telephone number and denied that he told her that Mr Xie lived with Mr Zheng. The second matter was a reference to evidence from Ms Hu, which was ultimately excluded in any event, that Mr Ju had told her that Mr Xie lived at Mr Zheng’s house. He said he had never met Mr Xie.

Xie Hui Wang

Mr Wang is a carpenter. He provided a statement on 21 August 2010. He has known Mr Zheng since 2006, when he was engaged by him to install doors and windows at the Wahroonga premises. He worked at the property on several occasions between 2005 and 27 August 2006. At the time he worked at the property, he came to know Mr Xie, who he saw a couple of times on site. He did not see Mr Xie doing any work at the property, he was “just around”. He recalled one time when Mr Xie said he was a gyprocker and he asked if he had any work for him. He recalled that the tilers were three or four Korean men. He saw them on several occasions as they laid tiles and marble inside the house. On 27 August 2006, Mr Wang was at the property to adjust the height of a door at the top of the back steps. He said that the steps had been tiled and “the job was completed”. There were not tilers on site when he completed his work on 27 August 2006.

Jue Wang

Mr Jue Wang signed a statement on 20 September 2010. He said that he was renovating his kitchen in 2006 and needed some tiles. He contacted his friend Mr Zheng, who said he had some extra tiles at the Wahroonga premises. In “perhaps August 2006”, he went to the Wahroonga premises with his wife to collect the tiles. When he was there, he saw three men laying tiles. He did not know them, but when he tried to speak to them in Chinese they did not understand him. He then learnt that they were from Korea. When he collected the tiles, he noticed that the job they were doing was incomplete and that the stairs at the back of the house were incomplete.

Jian Leng

Mr Leng is a self-employed delivery driver. He has known both Mr Zheng and Mr Xie for about 40 years and he considers both men to be his friends. He visited the Thornleigh premises about once a week for business and personal reasons. Mr Leng sold manchester and Mr Zheng was in the embroidery business.
Mr Leng said that the room located next to the garage at the Thornleigh premises was “always full of material and other goods”. The room was only accessed via the garage door and had no toilet or running water.
Sometimes when he visited the Thornleigh premises he would see Mr Xie there, but that was not often. He had no reason to believe that Mr Xie lived at the Thornleigh premises. He believed that Mr Xie was living in an apartment in or near 25 Hunter Street, Hornsby.
He recalled that, some years after Mr Zheng purchased the Thornleigh premises, he installed two large stone lion statues at the entrance to the driveway. He assisted Mr Zheng in installing the statues, as did his sister who was living there at the time. They were also assisted by a crane driver who was contracted to lift the statues into position. There were no other people involved in installing the statues and Mr Xie did not assist.

Jakob Kolton

Mr Kolton provided a statement on 7 October 2010 in which he described himself as a self-employed handyman. He has lived at 2 Butterfield Street, Thornleigh for about 20 years and has known Mr Zheng for nine or 10 years.
He recalled that, about two years ago, he was approached by an Asian woman who said she was a lawyer with a firm representing Mr Xie. She was accompanied by an Asian man who Mr Kolton “vaguely recalled having seen” at Mr Zheng’s property. The Asian man was identified to him as Mr Xie. He recalled telling the lawyer that he was about 70 per cent sure that he had seen Mr Xie on occasions at Mr Zheng’s house or outside the house working on an old white Ford Falcon. He also recalled having seen Mr Zheng outside the house working on the same or a similar car.
Several months or a year later, Mr Kolton was approached by an investigator, and Mr Xie, representing the same lawyer. He was asked if he recognised Mr Xie as a resident of the Thornleigh premises. He told the investigator that he was 70 per cent sure he recognised Mr Xie, as he had seen him from time to time at Mr Zheng’s house. He may have also said hello or waved to Mr Xie on occasion. Prior to first speaking with the lawyer, he had never given any thought to whether Mr Xie was a visitor or a resident at the Thornleigh premises. However, “the lawyer’s approach was such that she told me Mr Xie was a resident of many years and I then presumed this to be true”.
About a month ago, Mr Kolton received a letter from the lawyer asking him to confirm notes she made from his conversation with the investigator over a year earlier. The notes said that he was 70 per cent sure that Mr Xie had lived at the Thornleigh premises for many years. He contacted the lawyer by telephone and corrected the notes, as he did not say Mr Xie was a resident, but said that he was “70 per cent sure [he] recognised him”. He also told the lawyer that he was not sure if Mr Xie was a resident of Butterfield Street. It was also incorrect that Mr Kolton had seen Mr Xie in the morning and afternoons. He said that he did not believe he ever saw Mr Xie more than once every couple of weeks, if that.

Ramy Qutami

Mr Qutami is Mr Zheng’s solicitor. He provided a statement on 12 November 2010. He said he was formally instructed in this matter on 20 August 2010. He said that the investigation into Mr Xie’s allegations has been “significantly prejudiced due to the time that has elapsed since the material events occurred and the late notice of any claim”.

Len Koncek

Mr Koncek provided a statement on 18 November 2010. He has lived at 10 Butterfield Street, Thornleigh for over 25 years and has known Mr Zheng, known to him as “Tom”, for about 10 years. He was shown photographs of Mr Xie and confirmed that he had seen him from time to time at Mr Zheng’s property. Based on the frequency with which he saw Mr Xie compared to how often he saw Mr Zheng, he had no reason to believe that Mr Xie was residing at Mr Zheng’s home. He only ever considered that Mr Xie was visiting. On several occasions, he saw Mr Xie working on a white Ford Falcon outside Mr Zheng’s home.

Cara Wagstaff

Ms Wagstaff provided a statement to the WorkCover investigator on 17 November 2009. She has lived at 7 Butterfield Street, Thornleigh for 20 years. Her only knowledge of the occupants of the Thornleigh premises is that they are Chinese. She did not directly communicate with them. She was not able to say if there were occupants other than Mr and Mrs Zheng and their son James living at the Thornleigh premises.

DOCUMENTARY EVIDENCE

Claim form

Mr Xie completed a ULIS claim form on 24 February 2009. His address is recorded as 3 High Street, Mount Kuring-gai. His description of how the injury occurred is consistent with the description recorded in the hospital notes referred to earlier. Under details of wages, the following appears:
“Free food and accommodation and medical expenses from date of accident to August 2008”.
His gross earnings are described as “free food and accommodation $1,200 gross”. He said he worked 40 hours per week and that his award classification was “gyprocker”. He gave the name of his employer as Yue Zheng at 3 Roland Avenue, Wahroonga. It was recorded that he also worked for T/C Australia P/L. At the conclusion of the form was a statutory declaration signed by Mr Xie and witnessed by his then solicitor, Hong Liu.

In answer to the question of whether he had received payment from his employer or any other source in relation to the injury, Mr Xie answered “yes”. Under “details”, he said:
“Free food and accommodation and medical expenses from date of accident to August 2008.”

Owner/builder permit

Mr Zheng applied for an owner/builder permit with respect to building work at the Wahroonga premises on 20 January 2004.

Police records

Mr Xie has twice been convicted of driving with a prescribed concentration of alcohol. On 1 October 2009, he was charged with driving while disqualified, unlawfully possessing an article like a driver’s licence, and giving police a false name. The police Fact Sheet records that, with a Mandarin interpreter, Mr Xie admitted that he knew he was disqualified from driving and, in relation to the fraudulent licence, “knew he did something wrong”.

Financial records

PAYG payment summaries from Australian Woollen Textile Manufacturing Pty Ltd dated 9 July 2003 and 8 July 2002 both give Mr Xie’s address as 114/117 Pacific Highway, Hornsby. The same address appears on a tax file number declaration signed by Mr Xie on 8 December 2001.
In three documents from the Bank of China dated 19 August 2005, 4 November 2005 and 28 June 2006 evidencing transfers of money from Mr Xie to China, his address is recorded as Unit 104, 107–115 Pacific Highway, Hornsby. The same address is recorded on a PAYG payment summary from Cookie Man Pty Ltd dated 30 June 2004 and on bank statements from St George Bank covering the period 26 March 2002 to 10 May 2004. For the periods from September 2004 until September 2010, the bank’s records record a post box address at Hornsby for Mr Xie.
In a letter on the letterhead of Lee Family Pty Ltd t/as Lee Central Park Chinese Restaurant dated 20 September 2010, David Lee stated that Mr Xie worked at the restaurant as a casual on Saturdays and Sundays from 5.00 pm to 9.00 pm from late 2001 until 3 November 2002.

Prior compensation claim

On or about 3 November 2002, Mr Xie suffered an injury while working at the Lee Central Park Chinese Restaurant. The details of the injury are not known, but the claim was settled in May 2004 for $3,750 in respect of a three per cent whole person impairment.

Department of Immigration

On 12 October 2001, Mr Xie applied for a Protection (Class XA) Visa. The application includes a statutory declaration attesting to the accuracy of the information in it. The application required Mr Xie’s “current residential address in Australia”, which “must be the address where you are living”. Mr Xie gave his address as 11/28 Weigand Avenue, Bankstown NSW and said that he had lived there since September 2001, having arrived in Australia on 22 September 2001. Mr Xie authorised Pricilla International Co Pty Ltd, a registered Migration Agent, to act on his behalf in relation to his “application/sponsorship” in dealing with the Department of Immigration.
The Department wrote to Mr Xie at the Bankstown address in November 2001. The records produced by the Department include an envelope addressed to Mr Xie at 11/28 Weigand Avenue, Bankstown marked “return to sender”.
Mr Xie was refused a Protection Visa and sought a review before the Refugee Review Tribunal (the Tribunal). He gave oral evidence (presumably on oath) before the Tribunal on 14 February 2003. In its decision delivered on 14 March 2003, the Tribunal noted Mr Xie’s evidence that:
(a)     he left China to escape persecution because of his political opinions;
(b)     his trip to Australia was arranged secretly by the friend of a person named Lin;
(c)     the information and claims made to the Department and the Tribunal were true, and a complete statement of his claims for a Protection Visa;
(d)     he had moved to a new address a few months ago and, when asked why he had not informed the Tribunal of his new address, he said that he had told his adviser and maybe the adviser forgot to pass it on;
(e)     after he lost his factory job (in China) he did various unpopular and unpleasant jobs, and
(f)      he was able to leave China with the help of Wang Yi.
The Tribunal recorded that it received a letter from Mr Xie dated 22 February 2003, in which he said he had been unable to answer some questions at the hearing because, during his detention in China in 1996, police had beaten him, causing cerebral concussion. As he had not recovered properly from this, because he was then subjected to one-year reform through labour, he suffered from the “sequelae of cerebral concussion” and always had headaches when nervous and, in such situations, he felt confused and forgot things. The Tribunal was not satisfied that Mr Xie was impaired in his ability to give evidence and present his case. The Tribunal did not accede to Mr Xie’s request to seek additional evidence about his health.
With regard to Mr Xie obtaining a passport to come to Australia, the Tribunal noted that Mr Xie told the delegate that it was difficult for him to get a passport because of his former “bad” record. Mr Xie and Lin eventually got passports through Mr Liao and Mr Feng. In his evidence to the Tribunal, he said that Wang Yi (a friend of Lin’s) handled everything. He added that he was unaware that a person named “Liao” assisted in obtaining documents, and claimed that this was an error by his adviser.
The Tribunal did not accept Mr Xie’s evidence and refused his application for a Protection Visa. Mr Xie initially sought a judicial review of that decision, but did not pursue that review.
On 23 April 2003, Mr Xie applied for a Bridging A Visa, again with Pricilla International Co Pty Ltd acting for him, which the Department granted on 17 June 2003. In his application, he gave his address as 104/107–115 Pacific Highway, Hornsby.
Mr Xie applied for a Bridging Visa E on 8 March 2004, in which he gave his address as 9 Carlisle Street, Ashfield NSW. The Department granted that visa on condition that Mr Xie not work, that he reside at the Ashfield address, and that he notify the Department of any change of address at least two working days before the change. The documentation noted that failure to comply with these conditions may result in the cancellation of the visa.
Mr Xie applied for further Bridging Visas on 21 April 2004, 18 August 2004, 2 November 2004, and 10 January 2005. In each application, he gave his address as 9 Carlisle Street, Ashfield. The Department granted Bridging Visas on condition that, among other things, Mr Xie not work and that he reside at the Ashfield address. In each application, Mr Xie marked “No” to the question of whether he had received assistance in completing the form and he declared that the information supplied was “complete, correct and up-to-date in every detail”.

MEDICAL EVIDENCE

Mr Xie was seen at Hornsby Hospital at 1.34 pm on 5 September 2006. The nursing assessment states “translated by friend” and records that “states was using metal grinder & accidentally cut self on R eyebrow”. Mr Xie’s address is recorded as Pacific Highway, Hornsby. The adult admission clinical record records:
“He is 48 y o, here for eval of laceration to (R) eye.
He was cutting tiles [with] an angle grinder, piece of cut tile flew in his face & cut him. Injury happened [at] 1300 today.
He called a friend, who brought him here.
He can only see light & dark out of (R) eye.”
Mr Xie was transferred to Royal North Shore Hospital at 4.21 pm on 5 September 2006. The admission form records his address as 107 Pacific Highway, Hornsby and PO Box 134, Hornsby. His home phone number was a mobile phone number. Under “person to notify”, the word “Tom” appears. Under “nursing assessment data”, the following relevant entry appears:
“CUTTING TILES WITH GRINDER AND A PIECE OF TILE FLEW INTO EYE.”
A further entry in hospital notes for 5 September 2006 reads:
“- cutting tiles at home
Hit with tile to (R) eye
? flat ? edge”
The above history appears to have been taken with an interpreter because the word “INTERPRETER” is stamped on the side of the notes with an indecipherable name under it. The word “INTERPRETER” appears in several places throughout the hospital notes.
Another document that appears to be an ambulance report records Mr Xie’s address as 232 Pacific Highway, Hornsby. It was noted that Mr Xie was travelling with an “interpreter/friend”.
Documents from the Northern Sydney Central Coast Area Health Service record Mr Xie’s address as 107 Pacific Highway, Hornsby. It also recorded that an interpreter was required and that Mr Xie’s language used at home was Mandarin. The contact person was stated to be Tom Zheng, who was described as a friend, and the contact address was “3 Roland Ave”. The patient health questionnaire was completed with an interpreter.
In a document headed “patient identification details” dated 13 March 2007, Mr Xie’s address is recorded as 107 Pacific Highway, Hornsby. His contact person is recorded as “Tom Pioneer Ave Thornleigh”.
Mr Xie was again admitted to Royal North Shore Hospital on 27 March 2007 for surgery to his right eye. Again, his address was recorded as 107 Pacific Highway, Hornsby.
On 27 March 2007, Mr Xie underwent surgery to his right eye. The “correct patient verification checklist” records that Mr Xie had “little to no English”.
The hospital notes for 28 March 2007 record that “Tom” had been contacted and that he would take Mr Xie home.
The hospital progress notes record that, on 11 March 2008, Mr Xie attended hospital for review. The notes record that, because Mr Xie was late, the interpreter had to leave midway through the consultation. Because Mr Xie had “no English”, his appointment was rescheduled.
Dr Delaney, ophthalmic surgeon, examined Mr Xie with a Mandarin interpreter for medicolegal purposes on 6 April 2009. In his report of 14 April 2009, Dr Delaney took a history that “at the time of the incident Mr Xie told me he worked as a tiler/gyprocker and he is currently not working.” Mr Xie further told the doctor that he was “working cutting tiles when a piece of the tile broke off striking him on his right eye causing a severe injury to the eye”.
He said there was no guard on the grinder and that he was not wearing goggles at the time of the incident. He was taken to Hornsby Hospital and then transferred to Royal North Shore Hospital for emergency surgery. He subsequently had two further operations on his eye. His uncorrected vision in his right eye was a vague perception of light. The loss of vision was a direct result of the penetrating injury, which caused a secondary retinal detachment and traumatic cataract.

THE ARBITRATOR’S REASONS

After setting out a summary of the parties’ written submissions, and the evidence in support of and against their respective positions, the Arbitrator said:
(a)     it was a very difficult case to unravel the conflicting and diametrically opposed versions as to what took place leading up to and on 5 September 2006 (Reasons at [55]);
(b)     the issue was whether, at 5 September 2006, Mr Xie was a worker as defined by the legislation. The key question was the intention of the parties. Whether a contract had been entered into was to be determined by “an objective assessment of the state of affairs between the parties” (Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 at [25] (Ermogenous));
(c)     on account of the conflicting evidence Mr Xie gave as to his place of residence, he (the Arbitrator) needed to exercise caution in dealing with Mr Xie’s evidence (Reasons at 59]). One needed to have regard to corroboration of what Mr Xie said on the issue of whether he was employed by Mr Zheng to work on the Wahroonga premises;
(d)     one needed to treat a case like this with care, particularly keeping in mind that there had been limited cross-examination of Mr Xie, which was curtailed by agreement of the parties. The parties also agreed there would be no further cross-examination of any witnesses. He was left with a comparison of the witness statements from the “bare words the deponents have given, rather than seeing any of them challenged in court” (Reasons at [60]). It may be useful to note not only who has provided a statement, but also who has not; one could have regard to what was stated by one witness, which may or may not have been traversed by a witness on the other side; one needed to take account of explanations given by one witness against an important aspect of evidence given by another (Reasons at [60]);
(e)     after referring to the evidence from Mr Zheng and his wife ([61]–[70]), he found it “curious” that Mr Zheng gave no evidence of any attempts he made to contact the Korean tilers he said were engaged to perform the tiling work on the back stairs at the Wahroonga premises (Reasons at [70]);
(f)      in accordance with the dictum of the High Court in Ermogenous, his task was to ascertain the objective intention of the parties as established by what was “objectively conveyed by what was said and done, having regard to the circumstances in which those statements and actions happened” (Ermogenous at [25]). In doing that, he needed to consider the context and the circumstances as revealed by the evidence (Reasons at [71]);
(g)     on balance, he was of the view that there “was a relationship” between Mr Xie and Mr Zheng that required Mr Xie to perform work for Mr Zheng at the Wahroonga premises (Reasons at [71]);
(h)     under cross-examination, Mr Xie said that the conversation he had “in relation to the consideration for the performance of this work was with” Mr Zheng’s wife who was a joint tenant with Mr Zheng in relation to at least the Thornleigh premises and she would have had “at least ostensible authority to speak on behalf of her husband” who “one must infer would have also known about this arrangement and adopted it” (Reasons at [71]);
(i)      he formed this view as a result of the following “features of the evidence”;
(i)both Dong Ming Wen and Jin Xian Zhao gave clear evidence of seeing Mr Xie performing work at the Wahroonga premises;
(ii)Mr Zheng agreed that Mr Xie had attended the Wahroonga premises on occasions;
(iii)the failure of Mr Zheng to call evidence from his son James, who lived at the Thornleigh premises throughout the entire time Mr Xie said he had resided there;
(iv)Dong Ming Wen said that Mr Xie had been living at the Thornleigh premises;
(v)Mr Zheng’s evidence on how long Mr Xie had stayed at the Thornleigh premises varied between his statements. His wife’s statement agrees with his first statement but contradicted his second, and
(vi)on the day of the injury, Mr Zheng’s behaviour in picking Mr Xie up, taking him to Hornsby Hospital, going with him to Royal North Shore Hospital in the ambulance, staying there until midnight and paying Mr Xie’s medical expenses of about $6,000, were either those of a “saint-like, close friend or were strongly suggestive of a person who felt a responsibility for what had befallen” Mr Xie. Mr Zheng’s actions seemed “extraordinary if the true relationship between” Mr Zheng and Mr Xie was as remote as that described by Mr Zheng in his statement to the WorkCover investigator;
(j)      the different addresses for Mr Xie could be explained by the instruction he said Mr Zheng gave him not to reveal his residential address to be the Thornleigh property. With respect to the real issue, there was “sufficient material to form inferences of having been seen [sic] the applicant working by a number of people at the Wahroonga premises and having been seen by a number of people regularly at or about the Thornleigh premises” (Reasons at [72]). In particular, the evidence in the first statements Mr Zheng and his wife gave to the WorkCover Authority appeared to be “somewhat different to the statements they subsequently gave when this case started to take shape”. In his first statement, Mr Zheng said Mr Xie only stayed at Thornleigh on the odd night when he drank too much, whereas his subsequent statement has him living there for a couple of weeks in 2001 and a couple of weeks immediately after the injury in 2006;
(k)     the immediate reaction of Mr Zheng and his wife to assist Mr Xie on the date of the injury, and the fact that they stayed at the Hornsby Hospital and then went by ambulance with Mr Xie to Royal North Shore Hospital, and stayed there until midnight, was “suggestive of not mere friendship, which they suggest was only a causal one, but suggests in my view, responsibility for the injury which happened to the applicant” (Reasons at [72]);
(l)      the money of about $6,000 paid by Mr Zheng to Mr Xie for his treatment was also suggestive of “responsibility rather than a mere loan”;
(m)   it was also telling that “one particular person” had not given evidence. That person was Mr Zheng’s son James, who was said to be a university student and who lived at the Thornleigh premises the whole time Mr Xie said he lived there (Reasons at [72]).

ISSUES IN DISPUTE ON APPEAL

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     determining that Mrs Zheng had ostensible authority to conclude a contract with Mr Xie on behalf of her husband (ostensible authority);
(b)     failing to determine properly and/or give reasons or adequate reasons as to:
(i)why he preferred one witness’s evidence to another;
(ii)determining the matter against the weight of evidence;
(iii)why Mr Zheng was Mr Xie’s employer;
(iv)why Mr Zheng’s defence as to Mr Xie’s failure to give notice of injury was rejected (reasons/weight of evidence and notice).
(c)     failing to give adequate reasons:
(i)in relation to the consideration and acceptance of Mr Xie’s evidence; in failing to reach conclusions on the evidence after comparing, reconciling and evaluating the weight to be afforded to Mr Xie’s evidence in light of conflicting evidence, and
(ii)in relation to the consideration and acceptance of some of Mr Xie’s submissions, in failing to reach conclusions on those submissions after comparing, reconciling and evaluating the evidence and/or the weight to be afforded to Mr Xie’s evidence in light of conflicting evidence (reasons).
(d)     determining that Mr Xie was:
(i)illiterate;
(ii)an unskilled labourer, and/or
(iii)unable to understand English
when there was no evidence to that effect (evidence).
(e)     denying Mr Zheng procedural fairness and/or incorrectly exercising his discretion in drawing a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference against Mr Zheng because of an absence of evidence from his son, Jiefu (James) Zheng (procedural fairness).
I have divided the issues into the following categories: ostensible authority, reasons/weight of evidence, notice, evidence and procedural fairness.

Ostensible authority
Submissions

Mr de Greenlaw submitted that, to establish ostensible authority, it had to be proved that:
(a)     there was a representation as to the agent’s (Mrs Zheng’s) authority made by the principal (Mr Zheng), and it was not enough that the representation came from the agent alone;
(b)     the representation as to the agent’s authority must have been intended by the principal to have been, and must have in fact been acted upon by the person to whom the representation was made (Mr Xie);
(c)     the representation must be that Mrs Zheng had authority to enter on behalf of Mr Zheng into a contract of the kind within the scope of the apparent authority;
(d)     it is the representation that renders Mr Zheng liable to perform the obligations imposed on him under the contract, and
(e)     the representation operates as an estoppel to prevent Mr Zheng from asserting he is not bound by the contract.
Mr de Greenlaw submitted that the Arbitrator accepted there was no evidence of any representation by Mr Zheng to Mr Xie, only an alleged offer of food and accommodation in return for labour made by Mrs Zheng. There was no evidence that Mr Zheng held his wife out as having his authority to enter into an employment contract on his behalf or that he intended Mr Xie to act on a belief that Mr Zheng’s wife could employ Mr Xie on his behalf. The Arbitrator erred, it was submitted, in saying that “one must infer” that Mr Zheng would also have known about the arrangement and “adopted it”. Such a finding was said to be unsubstantiated. If there was no representation, then there is no act on Mr Zheng’s behalf that makes him liable under the contract and there is no estoppel that prevents him from asserting that he was not a party to the contract.

Mr de Greenlaw also submitted:
(a)     the onus was on Mr Xie to prove the existence of an intention to create legal relations and the Arbitrator did not address this point;
(b)     the alleged provision of accommodation valued at $100 plus food in return for an unspecified amount of work, on weekends only, by an unskilled labourer, at Mr Zheng’s investment property, in circumstances where Mr Xie was permitted to undertake full-time employment during the week seems “so inherently improbable” as to “militate against a finding that a contract of employment existed” (Ivsic v The Croatian Club Ltd [2010] NSWWCCPD 105 at [104] and [73]);
(c)     any arrangement was entirely voluntary and lacking any “clear positive indication” of an intention to create a legal relationship of employment (Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 at 202B) and Mr Zheng is being penalised for his willingness to act as a Good Samaritan;
(d)     there is a total absence of material necessary to establish the existence of a contract between Mr Zheng and Mr Xie (Damevski v Giudice [2003] FCAFC 252; 133 FCR 438);
(e)     if an intention to create legal relations is found to exist, it is more reasonable to infer the existence of an employment contract between Mr Zheng’s wife and Mr Xie;
(f)      the Arbitrator’s assumption that Mrs Zheng was contracting on behalf of her husband is based on a sexist historical construction of the legal relationship between husbands and wives that is no longer applicable in today’s society (Gregg v Tasmanian Trustee Ltd (1997) 73 FCR 91 at 114);
(g)     the Arbitrator needed to explain his reasons for finding Mrs Zheng exercised Mr Zheng’s ostensible authority, in the absence of any evidence of representation by Mr Zheng, and in circumstances where Mr Zheng’s name was not mentioned as employer, and
(h)     the Arbitrator’s reasons are inadequate in that he failed to refer to the facts which discharged the onus to prove intention to effect a legal relationship, or the facts from which that intention could be inferred.
Mr Beauchamp submitted that Mr de Greenlaw’s arguments were based largely around the fact that there was only one conversation with Mrs Zheng that led to the employment contract, when there were conversations with Mr Zheng as well. He argued that, accepting, as the Arbitrator did, that Mr Xie paid $100 per week rental for a substantial time, changed that arrangement “by agreement with the Zheng’s and commenced to spend irregular periods of time working at the Wahroonga premises in exchange for his board and lodging at Thornleigh” was evidence of the existence of a contract.
Mr Beauchamp relied on Mr Xie’s statement in which he referred to a conversation with Mr Zheng, and Mr Xie’s oral evidence that “often refers to conversations with Mr Zheng about the arrangements as well as Mrs Zheng”. However, given the time constraints, this was never clarified by Mr Xie. In the circumstances, it was open to the Arbitrator to find that there was an agreement “within the Zheng family through the wife, husband or both, to enter into this agreement”. This was said to be supported by Mr Xie’s evidence starting at T43.24 (all references in the transcript to “Mr Greenwall” are in fact to Mr de Greenlaw and the references to Mr and Mrs “Sheng” are to Mr and Mrs Zheng):
“Mr Greenwall: Are you now saying that the conversation referred to in paragraph 6 was a conversation you had with Mrs Sheng, not Mr Sheng, is that what you’re saying?
Interpreter: No. Yu Sheng also knew about it. I told him about it.
Mr Greenwall: Are you saying that the conversation referred to in paragraph 6 was with Mrs Sheng, are you?
Interpreter: No. About this conversation, I conduct it with Mrs Yu Sheng, and then I also conduct these two conversation with Mr Yu Sheng as well.
Mr Greenwall: So are you saying that paragraph 6 refers to two conversations, one with Mrs Sheng and one with Mr, and a separate conversation, with Mr Sheng?
Interpreter: Correct.”
The reference to “paragraph 6” in the above quote is a reference to that paragraph in Mr Xie’s statement dated 3 March 2009 in which he said:
“In about 2003, Mr Yue Zheng purchased a property of [sic] 3 Roland Ave, Wahroonga. Mr Zheng told me that he attended a course and obtained a [sic] owner builder’s license. He was going to renovate his new house. Mr Yue Zheng asked me to work for him in his new house. He said to me that he would provide me with free food and accommodation instead of wages.”
It was submitted that, from the above evidence, it is clear that Mr Zheng adopted any agreement entered by his wife and, at the least, Mr Zheng, by his conduct, adopted the position of his wife in relation to the contract of service.
Mr Beauchamp submitted that the finding of ostensible authority was also borne out by the conduct of Mr Zheng in allowing that arrangement to continue over the course of a significant period up to the date of the injury. It is said that the terms of the contract of employment were that Mr Xie would work each weekend at the Wahroonga premises and occasionally additional hours in return for free board and lodging. Further indicia of the adoption of the contract included “the provision of all tools by Mr Zheng”.
Last, Mr Beauchamp said there were a number of conversations, “none of which were ferreted out properly by the [a]ppellant to determine the extent of those conversations”. It was clear however that “there were a number of conversations with both the husband and wife over this contractual arrangement”.
In reply, Mr de Greenlaw said that the Arbitrator determined (at [71]) that “the conversation the applicant had in relation to the consideration for the performance of this work was with the first respondent’s wife”. That is, the “employment contract” arose in Mr Xie’s conversation with Mrs Zheng, not Mr Zheng. The Arbitrator did not determine that there had been any conversation or agreement with Mr Zheng. He inferred that Mr Zheng would have known about the arrangement and adopted it. Mr Xie had not earlier referred to a conversation with Mrs Zheng, despite having provided three statements.
He said that the suggestion that the agreement was with “the Zhengs” was clearly incorrect. The agreement was with Mrs Zheng and it was no surprise that Mr Zheng came to know of it. Mr de Greenlaw referred to the evidence (at T72.36–T74.19) that only one conversation took place as to “employment”. The evidence was that the $100 was at all times paid to Mrs Zheng (T67.30, T68.4 and T74.18). He also referred to Mr Xie’s evidence at T43.22, where Mr Xie said he had the conversation once with Mrs Zheng and that Mr Zheng was “also informed about the conversation”. He submitted there was no foundation for the submission that Mr Zheng “adopted the position of his wife in relation to the contract of service”.
He concluded that none of Mr Xie’s evidence on this issue should be accepted as truthful. Its disjointed delivery was said to be testament to its lack of credibility. Mr Xie said the conversation with Mrs Zheng occurred in May 2003, which was 12 months earlier than when Mr Zheng said the work commenced, and seven-and-a-half months before the council granted a building permit on 20 January 2004.
At the oral hearing of the appeal, Mr Beauchamp properly conceded that the Arbitrator erred in finding that Mrs Zheng had ostensible authority to bind her husband. In the absence of evidence, and Mr Beauchamp did not submit there was any, there is no presumption that a spouse has ostensible authority to bind his or her partner. Any such presumption was expressly abolished in the Married Persons (Equality of Status) Act 1996 (NSW).
Similarly, there is no evidence that Mr Zheng adopted the agreement made by his wife. The evidence from Mr Xie, if accepted, was that he made a separate agreement with Mr Zheng, not that Mr Zheng adopted the agreement made by his wife. Mr Beauchamp therefore argued that the Arbitrator’s conclusion could be sustained on a basis not found by the Arbitrator, namely, by accepting Mr Xie’s evidence that he concluded a contract with Mr Zheng in the same terms as his agreement with Mrs Zheng. Such a finding requires a re-determination of the main issue in dispute: whether Mr Xie had entered a contract of employment with Mr Zheng and, if so, the terms of that contract.
Mr Beauchamp consented to this issue being re-determined by me. Mr de Greenlaw submitted that the matter should be remitted to another Arbitrator for a re-hearing.

Discussion and findings

The resolution of this issue depends largely on an assessment of the reliability and veracity of the evidence from Mr Xie, Mr Zheng and Mrs Zheng. This requires an assessment of the parties’ credit and reliability, and a consideration of any objective evidence that supports or undermines one side or the other. While the parties consented to the matter being conducted in an abbreviated way before the Arbitrator, Mr Zheng does not consent to the matter being re-determined by me on appeal on the same basis.
Mr de Greenlaw said in his written submissions before the Arbitrator that, based on the documents before the Refugee Review Tribunal and other material, the Commission would draw certain adverse inferences against Mr Xie, namely, that he “is a liar” whose evidence could not be accepted. He relied on those submissions on appeal.
Mr Beauchamp correctly submitted on appeal that several important matters relating to Mr Xie’s credit had not been put to him during the shortened cross-examination before the Arbitrator and that Mr de Greenlaw now sought to invite me to draw adverse inferences on the basis of matters that were not put. However, given the agreement reached at the arbitration (that cross-examination of Mr Xie would be curtailed and no Browne v Dunn points taken), and given that Mr Beauchamp consented to the matter being re-determined by me, I found his submissions to be inconsistent. Either I re-determine the matter on the same basis as the Arbitrator did (without the benefit of full cross-examination but with the ability to draw such inferences as are appropriate from the documents), or the matter must be remitted for a further arbitration.
While I have had the advantage of hearing oral submissions on appeal in this matter, given the issues that have arisen in the course of that hearing, the significant credit issues involved generally, Mr Zheng’s objection to me re-determining the matter, and Mr Beauchamp’s submissions, I have concluded that fairness and justice requires that the question of what, if any, agreement Mr Xie made with Mr Zheng about working at the Wahroonga premises must be remitted to another Arbitrator for re-determination.
Though this finding disposes of the main ground of appeal, in view of the way the appeal was conducted, I will also deal briefly with the other issues raised.

Reasons/weight of evidence

Submissions

Mr de Greenlaw submitted that the Arbitrator made no determination that one person’s evidence was preferred to any other witness’s evidence. One can only assume, in view of the award entered, that the Arbitrator found Mr Xie’s evidence preferable. Reliance was placed on Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis);
In relation to the six matters relied on by the Arbitrator to support his finding that a contract existed, Mr de Greenlaw submitted:
(a)     the evidence from Dong Ming Wen and Jin Xian Zhao that they saw Mr Xie working at the Wahroonga premises was a far cry from establishing an employment relationship between Mr Xie and Mr Zheng;
(b)     before he drew a Jones v Dunkel inference about the failure to call evidence from James, the Arbitrator had to be satisfied to a prima facie level that Mr Xie had established his case. The Arbitrator wrongly used the absence of evidence from James to establish the prima facie case;
(c)     the Arbitrator failed to refer to Dong Ming Wen’s evidence that, prior to the injury, Mr Xie lived upstairs and it was only after his injury that he lived in the room next to the garage, which was at odds with Mr Xie’s evidence that he was living in the room next to the garage in 2003;
(d)     the Arbitrator failed to consider if the inconsistencies in Mr Zheng’s statements as to when Mr Xie lived at Thornleigh may have occurred due to a faulty memory due to the passage of time;
(e)     the Arbitrator’s conclusion that the relationship between Mr Zheng and Mr Xie was “remote” was against the weight of the evidence. Mr Xie often cooked meals at the Thornleigh premises, stayed overnight if he had had too much to drink and attended in the afternoon between his shifts at the Lee Central Park Restaurant between December 2001 and 2002. To lend money to a fellow countryman need not involve a saint-like persona and the inference the Arbitrator drew was not there for him to draw;
(f)      the Arbitrator’s statement that Mr Xie gave false addresses because Mr Zheng told him not to refer to Thornleigh as his address sought to exonerate Mr Xie for having sworn false testimony to the Refugee Appeal Tribunal, and false declarations in Department of Immigration documents, including visa forms and applications, as well as documents with the Roads and Traffic Authority (RTA), St George Bank and various employers. According to Mr Xie’s evidence in cross-examination, Mr Zheng only helped him fill out documents on two occasions, once when he applied for a driver’s licence and once when filling out his Application for a Protection Visa. Therefore, the Arbitrator’s statement that Mr Zheng helped Mr Xie fill out a lot of documents was incorrect. Further, the Application for a Protection Visa was completed by Mr Xie’s migration agent, Pricilla International Co Pty Ltd;
(g)     though the Arbitrator referred to the differences between the various statements provided by Mr Zheng and his wife, he failed to compare these with the “extreme disparity between the applicant’s statements and that brought up by the objective evidence”. The Arbitrator did not refer to the evidence that Mr Xie had been charged twice for driving over the prescribed concentration of alcohol and had provided a false name and address to the police;
(h)     the Arbitrator reached his conclusion without balancing the factors he took into account in support of his conclusion against the weight of the balance of the evidence. He did not say that he accepted Mr Xie’s evidence or that Mr Xie was a witness of truth;
(i)      the Arbitrator made no comment about the fact that Mr Xie’s oral evidence that he contracted with Mrs Zheng had not been addressed in his prior statements.
Mr Beauchamp submitted that:
(a)      the Arbitrator analysed the abundant evidence before him and stated the matters to which he afforded weight. He detailed his reasons for preferring the evidence of Mr Xie;
(b)     the findings made disclose the Arbitrator’s awareness of the difficult task that faced him in this case and the need to carefully balance the evidence to form a concluded view. He conducted that task in accordance with his obligations and the decision should not be disturbed;
(c)     it is clear, having regard to the Arbitrator’s statement at [60], that he took into account all of the statements of the witnesses and the various submissions. He had significant regard for some of the independent evidence which connected Mr Xie to the Thornleigh premises where he lived and the Wahroonga premises where he worked. That independent evidence included the evidence from Mr Zhao (a friend of Mr Zheng’s), from Mr Wen, and Mr Zheng’s own concession that Mr Xie had attended the Wahroonga premises, and
(d)     the Arbitrator noted the inconsistencies in the statements from Mr Zheng and his wife.

Discussion and findings

While the Arbitrator’s reasons could have provided a more detailed analysis of the evidence and the issues, on balance, I do not accept that he breached the principles discussed in Soulemezis. In that case, it was held that a trial judge must give sufficient reasons to identify the basis of his or her decision and the extent to which the parties’ arguments had been understood and accepted. Given that there were 22 witnesses, it was not necessary for the Arbitrator to indicate, with respect to each witness, which he accepted and which he rejected. It would, however, have been appropriate (and helpful for Mr Zheng to understand why his evidence was rejected) for the Arbitrator to have made an express finding about which parts of Mr Xie’s evidence he accepted and why, rather than leaving it to be implied from the conclusion.
I accept that the evidence from Mr Wen and Mr Zhao that they saw Mr Xie working at the Wahroonga premises did not establish that he did that work under a contract of employment. However, it was a piece of evidence that the Arbitrator was entitled to consider in determining which version he accepted. To that extent, their evidence was relevant and the Arbitrator was entitled to consider it in reaching his conclusion.
I accept Mr de Greenlaw’s submission that, in relying on Mr Wen’s evidence to support a finding in favour of Mr Xie, the Arbitrator failed to acknowledge or deal with a significant inconsistency in that evidence. While Mr Wen said that, as far as he was aware, Mr Xie lived in the room on the left hand side of the garage, and this was consistent with Mr Xie’s evidence, he also said that, prior to the accident, Mr Xie lived upstairs. This is inconsistent with Mr Xie’s evidence and tends to undermine it.
Whether the Arbitrator used the absence of evidence from James to establish a prima facie case, as Mr de Greenlaw has submitted, is unclear. He certainly used it as one of the reasons for finding in Mr Xie’s favour. Whether he merely used it as a reason for drawing an inference in favour of Mr Xie that was available in any event by the evidence presented was not explained and should have been explained. In any event, I do not believe the absence of evidence from James was critical to the determination.
Given that neither Mr Zheng nor his wife gave oral evidence, the submission that the Arbitrator erred in failing to consider if the inconsistencies in their statement may have been due to a faulty memory is difficult to accept.
I agree that the Arbitrator erred in concluding that Mr Zheng’s actions after the accident were extraordinary if his true relationship with Mr Xie was as “remote” as that described in Mr Zheng’s statement of 31 March 2009. Mr Zheng’s evidence was that he had been friends with Mr Xie for 20 years in China, that he let him stay at his house for a few weeks in September 2001, had him over for dinner on a number of occasions (when Mr Xie often cooked), that Mr Xie visited during the break in his shift at a local Chinese restaurant, and that Mr Xie often stayed overnight after dinner parties. That was not evidence of a “remote” relationship, but one of a reasonably close friendship, which was how Mr Xie described the relationship at [29] of his statement of 26 August 2010.
The Arbitrator’s statement that Mr Xie gave false addresses because Mr Zheng told him not to refer to the Thornleigh premises was open on the evidence, having regard to how the parties ran the case. It did not seek to exonerate the allegedly false testimony before the Refugee Review Tribunal, as Mr de Greenlaw has submitted. Because of the shortened cross-examination, whether that evidence was false was not tested.
The Arbitrator’s failure to refer to Mr Xie’s drink driving offences was of no consequence. Those offences were of limited relevance to his credit. However, the failure to refer to Mr Xie producing a forged licence and providing police with a false name was a failure to refer to relevant evidence that went directly to Mr Xie’s veracity and honesty, and was an error.

Notice
The Arbitrator’s decision

The Arbitrator’s reasons for rejecting the “notice” defence are at [73] of his decision, where he dealt with both notice of claim and notice of injury as follows:
“[Mr Zheng] raised various technical defences in relation to late notice of the claim and prejudice. In view of the evidence and my findings [Mr Zheng] was aware that [Mr Xie] suffered his injury within a very short time of it happening. To attempt to enlist such a technical defence might be suggestive of the sort of sophistry which modern courts decry. In any event one needs to take into account that [Mr Xie] has suffered a serious and permanently disabling injury, does not speak English, is an unskilled labourer and was described in submissions in reply as illiterate. All of these matters I find to constitute reasonable cause as to why the claim was not made within the time limits identified by the legislation.”

The provisions dealing with notice of injury are in s 254 of the 1998 Act and those dealing with notice of claim are in s 261 of the 1998 Act. They are separate and distinct provisions and the Arbitrator erred in not dealing with them separately and in not referring to the terms of the legislation.

Submissions – notice of injury

Mr de Greenlaw submitted that:
(a)     Mr Xie gave no explanation for the failure to give notice of injury;
(b)     while Mr Zheng knew that Mr Xie suffered an injury to his eye on 5 September 2006, he was not informed and did not know that is was alleged that it was a “personal injury arising out of or in the course of employment”;
(c)     Mr Zheng was prejudiced due to a lack of notice;
(d)     notice of injury must be given on the basis that the person to whom the notice is given knows that he or she is the employer. That did not occur in this case;
(e)     the first time Mr Zheng became aware that Mr Xie intended bringing a claim against him as an employer was in late February 2009, and
(f)      the Arbitrator’s reasons on the notice issue were inadequate.

Discussion and findings – notice of injury

While I agree that the Arbitrator did not give adequate reasons dealing with this issue, I do not accept Mr de Greenlaw’s submissions.
It is not disputed that, if Mr Zheng employed Mr Xie, Mr Xie gave notice of injury to him on 5 September 2006. Mr de Greenlaw did not refer to any authority to support his submission that a worker must give notice that he suffered a personal injury arising out of or in the course of his employment. His submission was not consistent with the legislation and was wrong. A worker must give notice of injury to his employer. On Mr Xie’s evidence, that is what he did on 5 September 2006. If Mr Zheng did not employ Mr Xie, then the notice issue is irrelevant and Mr Xie fails in any event.
Though it is not necessary to consider this issue any further, to avoid confusion at the re-determination, I make the following observations about Mr de Greenlaw’s submissions on the issue of prejudice, which pervaded his whole case on liability.
Section 254 provides that neither compensation nor work injury damages are recoverable by an injured worker unless notice of injury is given to the employer “as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury”. The failure to give notice of injury is not a bar to the recovery of compensation or work injury damages if it is found that there are special circumstances as provided by the section. The special circumstances are:
“(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Authority in accordance with this Act.”

The section does not provide that prejudice to the employer is a defence against a late claim. It states that one of the special circumstances in which the failure to give notice of injury is not a bar to the recovery of compensation or work injury damages is where the person against whom the proceedings are taken has not been prejudiced.
If, contrary to the evidence, Mr Xie had not given notice of injury as soon as possible after his injury happened, and if Mr Zheng was prejudiced by that fact, Mr Xie could not rely on the absence of prejudice as a special circumstance to prevent s 254 creating a bar to the recovery of compensation, but could rely on one of the circumstances in either sub-ss (b), (c) or (d).
If Mr Xie can establish that he was working for Mr Zheng under a contract of employment when he received his injury, the question of notice of injury is not an issue at the re-determination.

Submissions – notice of claim

However, even if Mr Xie establishes that Mr Zheng employed him, the question of notice of claim under s 261 is still relevant.
Mr de Greenlaw submitted that Mr Xie’s alleged inability to speak English and being an illiterate unskilled worker were not, by themselves, “other reasonable cause”. That is particularly so bearing in mind:
(a)     Mr Xie’s previous experience in bringing a successful workers compensation claim should outweigh any disability occasioned by his illiteracy in English. This is particularly so as solicitors were retained on his behalf in 2003;
(b)     Mr Xie had access to legal advice in his own language at the time, as proceedings in relation to his visa were being processed, and
(c)     Mr Xie was able to complete documents, in English, by himself.
Mr de Greenlaw added:
(a)     statutory provisions should be given their full effect and to criticise a party for raising them is a denial of procedural fairness (Australian Traineeship System (Cargill Meat Processors Pty Ltd) v Ramage [2004] NSWWCCPD 31 and National Engineering Pty Ltd v Morton [2005] NSWWCCPD 109);
(b) the onus is on the person seeking to rely on the exception to “comply with the Rules and Regulations” to establish the “excuse”. Mr Xie gave no evidence and submitted no explanation, with reference to the indicia in s 261(4), for his failure to claim within the time prescribed;
(c)     Mr Xie made a previous claim for workers compensation benefits, with a solicitor acting for him, and that increases the presumption that his “knowledge of the workers compensation ‘system’ was evident”. There is no evidence that he did not know what was required;
(d)     Mr Xie confirmed that he saw a solicitor 18 months to two years after his accident, but no claim was made for up to a year later. There is no explanation for that delay, and
(e)     the amendment to plead “notice” was late, but was made by consent. The fact that Mr Xie gave no evidence on this issue “could suggest it would not be forthcoming”.
At the arbitration, Mr Beauchamp (or his solicitor) submitted that, “in respect of the formalities of making a claim under section 65 [sic, s 261] the evidence clearly indicates that the applicant is illiterate and would not have been capable of complying with the provisions”. It seems likely that this submission contributed to the Arbitrator concluding, among other things, that Mr Xie’s illiteracy constituted reasonable cause as to why the claim had not been made within the time limits identified by the legislation.
At the oral hearing of the appeal, Mr Beauchamp submitted that, on Mr Xie’s evidence, Mr Xie claimed the cost of medical expenses from Mr Zheng within six months of the injury and Mr Zheng had paid those expenses. He therefore complied with s 261 even though that claim did not relate to the current claim for lump sum compensation.

Discussion and findings – notice of claim

Compensation cannot be recovered unless a claim for compensation has been made within six months after the injury or accident happened (s 261(1)). For the purposes of s 261, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury, even if the person’s claim did not relate to the particular compensation in question.
A failure to make a claim within the period required by s 261 is not a bar to the recovery of compensation if it is found that the failure was occasioned by “ignorance, mistake, absence from the State or other reasonable cause” (s 261(4)) and the claim was made within three years after the injury or accident happened. Additional provisions, which are not relevant to the present claim, apply if the claim is made more than three years after the date of the injury or accident.
The Arbitrator erred in his approach and conclusion on this issue. The reliance on s 261 was not “sophistry which modern courts decry” as described by the Arbitrator at [73]. The section serves the legitimate purpose of ensuring that claims for compensation are promptly made so they can be investigated and either paid or disputed. Provided the section has been properly pleaded, an employer is entitled to rely on it and to have the issue determined according to the terms of the legislation.
The Arbitrator relied on four grounds for holding that a “reasonable cause” existed as to why Mr Xie had not claimed within the time identified by the legislation. They were that Mr Xie:
(a)     suffered a serious and permanently disabling injury;
(b)     did not speak English;
(c)     was an unskilled labourer, and
(d)     was described in submissions in reply as illiterate.
The first ground is not relevant in this case. Serious and permanent disablement is only relevant if the worker is claiming compensation more than three years after the injury or accident. On any view of the evidence, Mr Xie claimed compensation within three years of his accident.
The other grounds referred to by the Arbitrator may have been indirectly relevant, if Mr Xie had put on evidence that he failed to claim within time because of ignorance as a result of an inability to speak English and/or because of his lack of education. However, he tendered no evidence to that effect. The submission at the arbitration that he was illiterate, without more, was of little assistance. If Mr Xie intended to rely on “ignorance” as the reason why his claim was out of time, he should have tendered evidence to that effect.
The argument presented on appeal attempts to overcome the lack of evidence on ignorance by relying on Mr Xie’s evidence that he claimed the cost of medical expenses within six months of the injury and Mr Zheng had met those expenses up to the middle of 2008. Whether that argument is correct depends on an acceptance of Mr Xie’s evidence and must be determined at the next arbitration.
For completeness, I make the following observations about Mr de Greenlaw’s other submissions:
(a)     statutory provisions should be given effect according to their terms and the context in which they appear. It must always be kept in mind, however, that workers compensation legislation is beneficial legislation;
(b)     the fact that Mr Xie had made a previous claim for compensation provided little, if any, guidance on the state of his knowledge of his need to claim within six months of the date of the accident;
(c) that Mr Xie saw a solicitor 18 months to two years after his accident is of no relevance to the failure to claim within six months under s 261, and
(d)     the assertion that Mr Xie completed documents in English on his own was open to doubt, but, in any event, of little relevance to the issue of ignorance.

Evidence
Submissions

This heading covers three findings: first, that Mr Xie is illiterate, second, that he is an unskilled labourer, and third, that he is unable to understand English.
Mr de Greenlaw submitted that the question of illiteracy only arose through a submission by Mr Beauchamp and that there is no evidence to that effect.
On the second finding, it was submitted the facts are that:
(a)     Mr Xie said he was an integral part of a new political movement in China and that his involvement in that organisation had been such that he applied for status as a refugee in Australia;
(b)     Mr Xie worked in an electronics factory in China, without any specific reference to the work he did;
(c)     Mr Xie came to Australia on a Business Visa which, prima facie, was inconsistent with him being an unskilled labourer, and
(d)     Mr Xie then applied for and obtained a Bridging Visa to enable his application for refugee status to be determined. After the Refugee Appeal Tribunal refused his application, he remained in Australia as an illegal immigrant.
It was submitted that it was not apparent from the evidence that Mr Xie could not understand English and that this presumption merely arose from the fact that he used an interpreter when cross-examined.
Mr Beauchamp submitted that Mr Xie’s evidence was given through an interpreter. He told the Arbitrator (at T36.15) that Mr Xie’s grasp of English was “terrible”. He also referred (at T42.18) to an objection he took to Mr de Greenlaw cross-examining Mr Xie about a document with having the document translated into his native language. He said that Mr Xie’s statement and work history provided clear evidence that he has only ever done unskilled work in China. Given the time constraints, the matter (of Mr Xie’s command of English) was not raised, as it was not considered to be seriously in issue that Mr Xie did not have real skills in English, written or oral, and submissions were put accordingly. There was clear evidence that Mr Xie required other people to complete job application forms for him. There was never truly any contest that Mr Xie was anything other than illiterate or unskilled.

Discussion and findings

Having carefully reviewed the hospital records, which are full of references to Mr Xie being unable to speak English, I accept Mr Beauchamp’s submissions that Mr Xie’s English is terrible. Mr de Greenlaw’s submissions to the contrary were surprising and were not supported by the evidence. Similarly, there is no evidence that Mr Xie was anything other than an unskilled labourer who is illiterate in English.

Procedural fairness

Submissions

Mr de Greenlaw submitted that, though Mr Beauchamp had said in submissions that it was telling that Mr Zheng had not called evidence from certain persons, he made no direct reference to the absence of evidence from James. In these circumstances, the Arbitrator’s reliance on the absence of evidence from James as a significant factor in deciding the case against Mr Zheng denied Mr Zheng the opportunity to address this point. It was reasonable for Mr Zheng to have supposed that sufficient evidence had been called on the issue of where Mr Xie lived to “disturb the onus of proof” without calling evidence from James, who was between 11 and 16 years old at the relevant time.
Mr Beauchamp submitted that the absence of evidence was raised in his submissions to the Arbitrator where he said “[m]uch is made of the various statements in evidence but often it is what is not in the evidence that is most significant”. What was not in evidence was a statement from the son who resided at Thornleigh. It was within the Arbitrator’s discretion to make the finding he made. As a submission had been made, there was no denial of procedural fairness. Even if it had been raised directly in submissions, Mr Zheng could not have put that evidence in, as the evidence had closed and its late production would have prejudiced Mr Xie. James was a central figure who was available to produce this evidence but no evidence was tendered from him.

Discussion and findings

As the matter must be re-determined, it is not necessary for me to deal with this issue, save to note that Mr Beauchamp’s submissions before the Arbitrator made it clear that “one would have thought that [Mr Zheng] could have called evidence from any number of sources, be they close friends, relatives or others who were regular visitors to his home”. This submission clearly raised the spectre of a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference from a failure to call evidence from a family member such as James. In these circumstances, the allegation that the Arbitrator denied Mr Zheng procedural fairness by drawing such an inference is difficult to sustain.

CONCLUSION

Regrettably, the matter must be re-determined by a different Arbitrator. The procedure adopted at that re-determination is a matter for the Arbitrator concerned. While it will be necessary for several of the key witnesses to be cross-examined, that does not mean that cross-examination will be open-ended or that counsel will be permitted to cross-examine on irrelevant matters. Further, the provision of 40 pages of over-inclusive submissions dealing with many issues that were irrelevant or not seriously open to challenge, as happened at the first arbitration, should not be repeated. Any further submissions (written or oral) should be concise and succinct and should deal with the issues in dispute. Notice of injury is no longer in dispute.

DECISION

The Arbitrator’s decision of 10 May 2011 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche

Deputy President
27 October 2011

I, CATHRINE LOREN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE