CASE REVIEWS - wiro.nsw.gov.au Bulletin Issue 23... · Wood DP observed that grounds 1, 3 4, 5 and 6 are dependent upon the outcome of ground 2 - whether the insurer could raise the

WIRO Bulletin Issue 23 | Page 1

ISSUE NUMBER 23

Bulletin of the Workers Compensation Independent Review Office (WIRO)

………………………………………………………………………………………………………

CASE REVIEWS

Recent Cases

These case reviews are not intended to substitute for the headnotes or ratios of the cases. You are strongly encouraged to read the full decisions. Some decisions are linked to AustLii, where available.

………………………………………………………………………………………………………

Workers Compensation Commission - Presidential Decisions

Motor vehicle accident – injury due to serious and wilful misconduct - s 10 (1A)

WCA does not disentitle a worker where the injury arose out of employment under s 4 (a) WCA

Ballina Shire Council v Knapp [2018] NSWWCCPD 35 – Deputy President Wood – 27

August 2018

Background

The appellant employed the worker as a plant operator. He usually worked from Monday

to Friday and travelled to his workplace at Alstonville from his place of residence at Evans

Head, but on 5 July 2014, he was scheduled to work overtime as a traffic controller with a

different crew in Ballina. He left his place of residence at about 6am to travel either to the

Works Depot or directly to the worksite, but he was involved in a head-on collision on-route.

Police determined that the worker was ‘at-fault’ and charged him with dangerous driving

causing death. The worker has no memory of the accident. However, Police opined that

the accident occurred because while the worker was driving, and just before the accident

occurred, he was using his mobile telephone and lost control of his car. The worker pleaded

guilty and was sentenced in the District Court of NSW. He then claimed weekly payments

and medical treatment expenses for his injuries on the basis that he was injured while on

a journey to which s 10 (1) WCA applied.

The Insurer disputed the claim and raised 5 issues: (1) Whether the worker suffered injury

arising out of or in the course of his employment (s 4 (a) WCA); (2) Whether the injuries

occurred on a periodic journey (s 10 (1) WCA) for which there was a real and substantial

connection between the employment and the accident (s 10 (3A) WCA); (3) Whether the

worker was guilty of gross misconduct, taking him outside the scope of his employment;


(4) Whether the injury was attributable to serious or wilful misconduct (s 10 (1A) WCA);

and (5) Whether weekly payments and treatment expenses were payable.

Decision at first instance

Arbitrator Bell found for the worker and ordered the insurer to pay his s 60 expenses. He

granted leave to the parties to apply if any issue regarding weekly payments could not be

resolved. The reasons for decision are summarised as follows:

Real and substantial connection – s 10 (3A) WCA

The Arbitrator found that when the accident occurred the worker was using a mobile

telephone that was issued to him by the appellant to contact his work supervisor. He found

that the worker had his gear with him and there was no need to go to the Depot and that

the only explanation for the call to his supervisor was to tell him that he was running late

or that he would go straight to the work site. The logical inference was that the calls “were

about work”. It is not necessary to establish a direct causal connection to the employment

(see: Namoi Cotton Co-Operative Ltd v Easterman [2015] NSWWCCPD 29; Dewan Singh

and Kim Singh t/as Krambach Service Station v Wickenden 2014] NSWWCCPD 13; and

Field v Department of Education and Communities [2014] NSWWCCPD 16. He found that

the the ‘relatively broad’ test of ‘real and substantial connection’ in Field was satisfied.

Serious and wilful misconduct – s 10 (1A) WCA

The insurer did not seek to rely upon s 14 (2) WCA, but it relied upon the following factors

to establish serious and wilful misconduct under s 10 (1A) WCA: (1) using a mobile

telephone while driving; (2) speeding; and (3) the presence of alcohol in his bloodstream.

However, the presence of alcohol was raised in a dispute notice and the insurer required

leave to rely upon it. The worker opposed the granting of leave.

The Arbitrator discussed s 289A (4) WIMA, which allows a new issue to be referred if it is

in the interests of justice to do so, but he decided that he did not need to consider whether

this was a new issue, as it was not an element that carried any weight as the Police and

the District Court formed the view that alcohol was not a causative factor. There was also

no evidence that the worker knew that he had alcohol in his system from the previous night

and the authorities require knowledge of the risk of injury.

The Arbitrator referred to the decision of Roche DP in Karim v Poche Engineering Services

Pty Ltd [2013] NSWWCCPD 24 (“Karim”) as authority that: (1) the onus on proving serious

and wilful misconduct rests on the respondent; (2) ‘serious and wilful misconduct’ is more

than carelessness, negligence or disregard for others; (3) where the risk of loss or injury is

remote, or if probable, trivial, it will not ordinarily be serious misconduct, and (4) the gravity

of the conduct is not to be judged by its consequences. He also quoted from the decision

of O’Meally CCJ in Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; 18

NSWCCR 109 (Sawle) at [24], as follows:

Serious and willful misconduct is conduct beyond negligence, even beyond culpable

or gross negligence. In order to establish serious and willful misconduct, it must be

demonstrated that the person performing an act or suffering an omission knows it

will cause risk of injury, or acts in disregard of consideration whether it will cause

injury. The word ‘willful’ connotes that the applicant must have acted deliberately. As

it seems to me, in order to establish serious and willful misconduct, a person accused

of it must be shown to have knowledge of the risk of injury and, in the light of that

knowledge, proceeded without regard to the risk.

The insurer argued that the District Court found that the worker’s actions were deliberate,

but the Arbitrator found, based upon Sawle and Karim, that “deliberate” refers to an act by

a person aware of the risk of injury but who proceeds regardless of the risk. He found that


the worker’s actions in exceeding the speed limit by 11 kph and using a mobile telephone

while driving “did not reach the standard of serious and wilful misconduct and that the

conduct must be beyond culpable or gross negligence”.

Based upon the decisions in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21;173 CLR

473 (Hatzimanolis) and Vinidex Pty Ltd v Campbell 2012] NSWWCCPD 6 (Campbell), he

held that the worker’s conduct was not sufficient to take him outside his employment

because: (1) it was necessary for him to travel to the depot or worksite; (2) the telephone

that he used was issued by the employer; and (3) contact with the supervisor was for work

purposes.

Appeal

The Insurer appealed on 6 grounds and argued that the Arbitrator erred: (1) By failing to

take account, or adequate account, of the totality of the worker’s conduct that resulted in

the accident; (2) By failing to allow it to raise alcohol consumption as an issue; (3) By

misunderstanding the relevance of consumption of alcohol; (4) In the application of the

relevant authorities to the facts in this case; (5) In finding the injury was not attributable to

gross misconduct and in relying on the same grounds advanced in respect of serious and

wilful misconduct to find that the injury was a personal injury within the meaning of s 4 (a)

WCA; and (6) in finding that the worker was entitled to an award under s 60 WCA.

DP Wood determined the appeal ‘on the papers’. She stated that given the serious nature

of the worker’s injuries, it was appropriate that the insurer did not rely upon s 14 (2) WCA.

Submissions

Ground 1

The insurer argued that the Arbitrator failed to consider the totality of the worker’s conduct

in (a) manually using a mobile phone, holding the phone in one hand and using the other

to periodically dial the number; (b) taking his eyes off the road to do so; (c) driving on a

narrow highway and in damp conditions and over the speed limit while steering with one

hand; and (d) possible impairment of driving due to the ingestion of alcohol the previous

evening. The totality constitutes serious and wilful misconduct.

Ground 2

The insurer argued that it is not necessary to recite every allegation of fact relied upon in

support of its reasons for disputing liability and s 74 WIMA should be read in a less

restrictive way: see: Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 (Wilkinson),

[214] and [219] regarding the construction of s 318 WIMA. The Arbitrator erred by finding

that issues of serious and wilful misconduct and gross misconduct ‘were not squarely

raised’ by the s 74 notice and he should have allowed the evidence of alcohol consumption.

Ground 3

The insurer argued that alcohol consumption was relevant. The Arbitrator erred by relying

upon the District Court’s finding that it was not a relevant factor, as alcohol consumption

was not recorded in the Agreed Facts that were tendered during the sentencing hearing,

although the Police had evidence of blood alcohol concentration.

Ground 4

The insurer argued that the established case law regarding journey claims and serious and

wilful misconduct no longer reflect public standards and it relied upon the comments by

Geraghty J in Schinnerl v Commissioner of Police (1995) 11 NSWCCR 278:

Different ages and cultures approve different standards of conduct, condemn

different acts of misconduct. What was once judged foul language is now chic, even


compulsory on the ABC. What Oscar Wilde was imprisoned for is now protected by

legislation. ‘Gross misconduct’ is a movable feast, though some acts remain grossly

inappropriate - selling illegal drugs, accepting bribes, assaulting a member of the

public, for example.

It also referred to the remarks made by Wells J during the sentencing hearing and argued

that the worker must have been aware of the risk of injury and that he acted deliberately

and without regard to it.

Ground 5

The insurer argued that gross misconduct is sufficient to take a worker outside the course

of his employment: see Hatzimanolis. The conduct was independent of the employer and

there is no evidence that the employer directed or encouraged him to speed; to drink

alcohol in the hours before attending work; or to use a mobile telephone without pulling

over; or to leave insufficient time to arrive at work by the start time.

Ground 6

The insurer argued that if the appeal succeeded on grounds of either serious and wilful

misconduct or gross misconduct, there should be an award for the respondent.

Consideration

Wood DP observed that grounds 1, 3 4, 5 and 6 are dependent upon the outcome of ground

2 - whether the insurer could raise the alcohol issue.

In Mateus at [46], Roche DP set out the factors relevant to the exercise of the discretion

under s 289A (4) WIMA, as follows: (a) the degree of difficulty or complexity to which the

unnotified issues give rise; (b) when the insurer notified that it wished to contest any

unnotified issue/s; (c) the degree to which the insurer has otherwise fulfilled its statutory

obligation to notify the worker of its decision disputing liability; (d) any prejudice that may

be occasioned to the worker, and (e) any other relevant matters arising from the particular

circumstances. He also stated that the following matters should be considered:

(a) a decision by an insurer to dispute a claim for compensation should not be made

lightly or without proper and careful consideration of the factual and legal issues

involved;

(b) any insurer seeking to dispute an unnotified matter is seeking to have a discretion

exercised in its favour and, accordingly, must act promptly to bring the matter to the

attention of the Commission and all other parties;

(c) any unreasonable or unexplained delay in giving notice of an unnotified matter will

be relevant to the exercise of the discretion;

(d) in exercising its discretion, the Commission may have regard to the merit and

substance of the issue that is sought to be raised;

(e) in assessing prejudice to the worker, it will be significant to consider when and in

what circumstances the worker was first made aware of the unnotified issue that is

sought to be raised;

(f) though it will be relevant to the exercise of the discretion to keep in mind that the

Commission must act according to equity, good conscience and the substantial

merits of the case, those matters will not be determinative, and

(g) the general conduct of the parties in the proceedings will also be relevant to the

exercise of the discretion. (emphasis in original)

DP Wood noted that the insurer has not explained the delay in notifying the worker of the

alcohol issue; the worker would be prejudiced if leave to raise the issue was granted; and

there was little evidence that alcohol was, on the balance of probabilities, a contributing


factor to the accident. It was therefore appropriate for the Arbitrator to exclude the alcohol

issue from his consideration of the worker’s conduct and ground 2 failed.

However, the Arbitrator erred at law because he did not explain why he only considered

the conduct of driving “slightly” above the speed limit and using a mobile telephone in

making his findings regarding the nature of the worker’s conduct and he failed to consider

facts that were put to him in submissions and in evidence before him, namely: (i) the worker

was travelling at a relatively high speed on a two-way carriageway without barriers; and (ii)

while making a telephone call he took one hand off the steering wheel: see Northern NSW

Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, [171].

DP Wood revoked the Arbitrator’s findings and re-determined the following issues in

accordance with the decision in Chubb Security Australia Pty Ltd v Trevarrow [2004]

NSWCA 344; 5 DDCR 1:

(1) The identification of the actions constituting the conduct that resulted in the injury;

(2) Whether that conduct constituted serious and wilful misconduct pursuant to s 10 (1A)

WCA, to disentitle the worker to benefits under s 10 (1) WCA;

(3) Alternatively, whether the worker suffered a personal injury arising out of or in the

course of his employment, and if so;

(d) Whether the conduct was gross misconduct, taking him out of the course of his

employment.

DP Wood made the following findings:

In relation to (1):

The Police evidence indicates that the accident most likely occurred because of driver

distraction due to the use of, or distraction by, a mobile telephone. She accepted the

insurer’s argument that the conduct must be considered in its entirety, including the

circumstances in which the accident occurred.

In relation to (2):

The worker’s actions constituted serious and wilful misconduct under s 10 (1A) WCA and

he was therefore not entitled to benefits under s 10 (1) WCA. She held:

181. The serious nature of Mr Knapp’s conduct is reflected in the description of the

driving as “dangerous” driving in the criminal charges that were laid against him.

While those charges encompass the consequences of the conduct (death or grievous

bodily harm), which are not to be considered here, the legal descriptor is relevant to

the way Mr Knapp was driving when the collision occurred. As Wells J said:

The driving in a manner dangerous element of the offence is due to the

distraction and inattention that was caused by his use of the mobile phone in

combination with the excessive speed …

183. The risk of injury flowing from Mr Knapp’s conduct in those circumstances was

at least probable and on any view likely to cause significant injury.

She accepted the insurer’s argument that the seriousness of the conduct should be

considered according to contemporary social standards and it can be said that using a

hand held mobile telephone while travelling at speed and over the speed limit is a serious

matter. Also, due to Police advertising campaigns, the risk of injury from both speeding

and from using a hand-held telephone is well publicised and must be regarded as “common

knowledge”. As a road user and licensed driver, the risk of injury must have been apparent

to the worker, or at least he must have proceeded to act without regard as to whether it


would cause injury. To determine otherwise would be contrary to current awareness of

road safety.

The worker did not challenge the deliberateness of his conduct in the sentencing

proceedings and he had the choice to pull off the road at a convenient place to make the

call to his supervisor, but chose not to do so. The inference drawn from the facts is that his

actions constitute wilful misconduct.

In relation to (3):

There was a causal, rather than a temporal connection with employment, and the worker

did not make the telephone calls in the course of his employment. However, the injuries

arose out of his employment as there was a direct causal link with it and the worker had

no other reason to telephone his employer:

211. It is clear from the above authorities that if the injury arose out of employment

the misconduct is irrelevant, even when the misconduct is such that it takes the

worker outside of the course of his employment.

However, DP Wood concluded that the worker’s injuries are compensable under s 4 (a)

WCA because they arose out of his employment. She therefore confirmed the COD and

remitted the matter to the Arbitrator to deal with weekly payments claim.

The nature of referral for assessment of the degree of permanent impairment under clause 11 & Part 2A of Schedule 8 of the Workers Compensation Regulation 2016

Matilda Cruises Pty Ltd v Sweeny - [2018] NSWWCCPD 37 – Deputy President Snell

– 31 August 2018

Note: WIRO has been advised that the insurer has lodged a Notice of Intention to Appeal against this decision in the Court of Appeal.

Background

The worker injured his right knee at work on 19 November 2004. The appellant accepted

liability. In February 2005, he underwent a surgery including an ACL reconstruction. On 22

February 2007, Dr Pillemer issued a MAC that assessed 12% WPI (right lower extremity

and on 13 April 2007, WCC issued a COD based upon the MAC. On 16 March 2010, he

underwent a revision ACL reconstruction. In 2010, he made a further claim under s 66

WCA and on 2 May 2012 and 22 May 2012, respectively, Dr Pillemer issued further MAC’s

that assessed 7% WPI. Those MAC’s were revoked upon appeal and a MAP issued a MAC

that assessed 12% WPI.

On 1 February 2017, the appellant gave the worker written notice that his entitlement to

weekly compensation would cease towards the end of the year by operation of s 39 WCA.

On 12 April 2017, Dr Pillemer issued a further MAC that assessed 12% WPI.

On 2 December 2017, the worker underwent right total knee replacement surgery.

On 24 January 2018, the worker’s solicitors advised the insurer by email of the recent

surgery and asked it to concede that maximum medical improvement had not yet been

reached and that the worker “was not stable for the purposes of assessment of WPI”.

However, the appellant responded:

Regarding maximum medical improvement, this is for the Workers Compensation

Commission to determine. Please apply this matter to the Commission and if they


deem Mr Sweeny has not reached MMI [maximum medical improvement], then his

benefits will be reinstated and reviewed.

On 31 January 2018, the worker’s solicitors lodged an application with the WCC, seeking

an assessment under s319 (g) WIMA as to whether the degree of permanent impairment

is fully ascertainable. However, the appellant’s solicitors opposed the referral to an AMS

and argued that this was precluded by s 322A WIMA.

On 26 February 2018, Arbitrator Wynyard conducted an arbitration hearing and reported

the following arguments:

The appellant’s argument

Section 322A WIMA prevents a worker from having more than one assessment of

permanent impairment. Section 322A (3) prevents the referral of a medical dispute to an

AMS for assessment as the worker has been assessed twice since 19 June 2012. To the

extent that Sch 8, cl 28D of the Regulation permits one further assessment of permanent

impairment, this took place in 2017. The application is misconceived and should be struck

out. There is also no formal claim for weekly compensation that would enable the WCC “to

make orders resulting from the dispute.

The worker’s argument

The opening words of s 39 (3) WCA provide, “For the purposes of this section …” and the

subsection comprises “a direction as to a course that’s to be taken for determining and

controlling” the operation of s 39. Acceptance of the insurer’s argument would render s 39

“useless”, which could not have been the drafter’s intent.

Sections 39 (3) WCA and s 322A WIMA can’t sit together and the preferred interpretation

should be that which gives the most cogent effect to the purposes of the Act. The purposes

of the section “contemplate scenarios where a worker’s condition might deteriorate” and

the worker’s entitlement to weekly compensation will be affected if the assessment

provision in s 39 (3) can never be used.

Clause 28D of the Regulation should be put to one side, and the focus should be on s 39

WCA, which also has a role to play for workers injured after commencement of the Workers

Compensation Legislation Amendment Act 2012 (the 2012 Amending Act) and not just

existing recipients of weekly payments.


The Arbitrator held that “a claim” was made by seeking a referral to an AMS to determine

whether the permanent impairment was fully ascertainable and that the insurer invited the

worker to make that application.

There was no dispute that the worker was an existing recipient of weekly payments for the

purposes of Sch 6, Pt 19H, cl 1 WCA and that Sch 8, Pt 2A, cl 28C (a) of the Regulation

provided that s39 WCA did not apply if an assessment of permanent impairment was

pending and had not been made because an AMS had declined on the basis that maximum

medical improvement had not been reached and the degree of permanent impairment was

not fully ascertainable. This required an application to be made to an AMS.

The Arbitrator referred to the title of cl 11 of Sch 8 of the Regulation - “Lump Sum

Compensation: Further Claims” and said that the legislative power that enabled the worker

to make his further lump sum claim in 2017 was Sch 8, cl 11, and the MAC dated 24 April

2017, “was issued pursuant to that power”. Pt 2A of Sch 8 dealt with weekly payments and

cl 28C and cl 28D fell within this Part. The provision in cl 28D (2), that s 322A does not

prevent a further assessment being made, does not relate to an “additional lump sum

permitted by cl 11, “which in the end is the gravamen of the [appellant’s] submission”.


The Arbitrator held that cl 28C (a) of the Regulation exempts a worker from the application

of s 39 of the 1987 Act, where an AMS has declined to assess permanent impairment on

the basis that maximum medical improvement has not been reached. Clause 28D of the

Regulation provides the mechanism whereby the application (that cl 28C (a) stipulates is

required) may be made. The one further assessment referred to in cl 28D (3) is that allowed

by cl 28 and not the additional lump sum claim permitted by Sch 8, cl 11.

He remitted the matter to the Registrar for referral to an AMS to assess the degree of WPI.

Leave to appeal

The insurer sought leave to appeal against the interlocutory decision under s 352 (3A)

WIMA and DP Snell granted leave. He stated:

26. …The dispute is one going to whether he is entitled, pursuant to Pt 2A of Sch 8

of the Regulation, to have a further assessment of the degree of permanent

impairment resulting from his injury. The purpose of the further MAC is to determine

whether he is entitled to weekly payments beyond an aggregate period of 260 weeks,

on the basis that his situation falls within cl 28C(a) of Pt 2A of Sch 8 of the Regulation.

If the appellant’s appeal succeeds, and the respondent is not entitled to have a

further assessment pursuant to cl 28D of the Pt 2A, he will have no further entitlement

to weekly payments of compensation, beyond those previously paid voluntarily, due

to the operation of s 39 of the 1987 Act.

27. The issue is a significant one between the parties, the outcome of which has the

potential to permanently conclude the respondent’s entitlement to weekly payments.

If the appeal is not determined at this point, the respondent would undergo medical

assessment by an AMS, and the appellant would then be potentially entitled to

appeal. Deputy President O’Grady has held that a MAC brought into being by reason

of an invalid referral must be treated as a nullity: Al-Nouri v Al-Nouri Pty Ltd: [2010]

NSWWCCPD 85, [60]. It is desirable that the validity of the referral be dealt with on

appeal, before the assessment by an AMS occurs. The granting of leave is desirable

for the proper and effective determination of the dispute. This is consistent with the

approach previously taken in a number of Presidential appeals, in circumstances

involving challenge to orders for referral to an AMS: Campbelltown Tennis Club Ltd

v Lee: [2013] NSWWCCPD 50, [18]– [22]. DP World Sydney Limited (formerly known

as Container Terminals Australia Pty Limited) v Kelly: [2011] NSWWCCPD 43, [13].

Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan:

2016] NSWWCCPD 23, [47]– [55].

Appeal

The appellant argued that the Arbitrator erred in finding that: (1) Sch 8, cl 28C of the

Regulation provided an additional right to an assessment by an AMS when an additional

AMS assessment had already occurred pursuant to cl 11; and (2) Sch 8, Pt 2A, cl 28C of

the Regulation provided a further right of AMS assessment separate to the right under Sch

9, cl 11, when that clause had not been relied upon by the worker and the appellant was

not asked to make submissions on that Part.

Submissions

Both parties filed written submissions. However, DP Snell referred the parties to his

decision in Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32 (Nicolia), which

dealt with the operation of Pt 2A of the Regulation, and he directed them to lodge further

submissions addressing:


1. Whether the Arbitrator erred in his reasoning and orders, in determining the matter,

relying inter alia on Sch 8, Pt 2A of the Regulation and, to the extent to which it is

relevant, to address the applicability of the reasoning in Nicolia;

2. Any other matters the parties seek to address going to the application of s 322A

WIMA and its operation in concert with Sch 8 of the Regulation; and

3. Whether there is any reason why the issues of statutory interpretation cannot or

should not be decided in the appeal.

Consideration

DP Snell stated:

96. The preferable construction of sub-cl 28D (3) is that “only one further assessment

may be made” pursuant to Pt 2A of the Regulation. This construction is consistent

with the object of Pt 2A, as described in the Explanatory note concerning the Workers

Compensation Amendment (Transitional Arrangements for Weekly Payments)

Regulation 2016, which inserted Pt 2A in the Regulation. It is consistent with a worker

who is an ‘existing recipient’, who has previously been assessed, being entitled to

one further assessment for the purposes of determining his or her entitlement to

benefits. It follows that the respondent was entitled to the referral for further

assessment made by the Arbitrator, unless he had previously had a further referral

on the basis of Pt 2A.

97. For reasons given above, a referral for assessment of the degree of permanent

impairment, based on cl 11 (4) (c) of the Regulation, was available to the respondent

when the referral was made in matter no 629/17. I have concluded that such a referral

would not constitute a ‘further assessment’ within the meaning of cl 28D. It follows

that, if the referral for assessment in matter no 629/17 was pursuant to cl 11, the

respondent remains entitled to a ‘further assessment’ based on Pt 2A of the

Regulation.

The referral in 2017 involved only a ‘further lump sum compensation claim’ within the

meaning of cl 11 of the Regulation, as the worker’s other entitlements were being met

voluntarily by the appellant, and could only have been made based upon cl 11. There is no

basis for characterising it as being under Pt 2A. He therefore rejected ground (1) and

stated:

101… The Arbitrator dealt with the appellant’s submissions about ‘claim’ at [10]– [18]

of his reasons. The Arbitrator concluded that the email correspondence dated 24

January 2018 was “proof that the claim was made”. He noted the appellant

“acknowledged the claim and invited the [respondent] to make this application”. I

cannot see error in how the Arbitrator dealt with this aspect. The point the appellant

is making on the appeal may rather be that the earlier claim was concluded when a

MAC was issued and orders made in matter no 629/17. This is true in so far as the

claim on foot in matter no 629/17 is concerned. However, the exchange between the

parties, on 24 January 2018, raised a further ‘medical dispute’, the existence of which

was accepted by the appellant, in the response which it gave. It is a ‘medical dispute’

in which a MAC is “conclusively presumed to be correct”: s 326(1) of the 1998 Act.

This issue was not raised separately as a ground of appeal. It is preferable, it being

raised in the submissions, that it be dealt with.

DP Snell concluded that ground 2 did not arise as he had afforded the appellant procedural

fairness by considering the issues of statutory interpretation in the appeal. It was not

necessary to determine the Notice of Contention.


WCC declines applications for recusal and reconsideration of a previous

Presidential decision

Mahal v The State of New South Wales (No 4) [2018] NSWWCCPD 38 – Deputy President Snell – 11 September 2018

Background

The appellant applied for reconsideration of the Deputy President’s appeal decision (Mahal

v The State of New South Wales (No. 3) [2018] NSWWCCPD 30 (the Mahal appeal

decision): see WIRO Bulletin Issue 21). The issue was confined to whether s 39 WCA

applies to the appellant.

The Mahal appeal decision was issued on 20 July 2018. It recorded that the appellant was

granted an extension of time to file and serve submissions in reply by 29 June 2018, but

that she did not file any submissions in reply or further approach the WCC.

However, on 24 July 2018, the appellant sent an email to President Keating and to the

Registry, which was copied to the solicitors for the respondent, in which she sought

reconsideration of the Mahal appeal decision. She stated that on 27 June 2018, she lodged

submissions in reply and a Certificate of Service with the WCC electronically, but the

appeal was decided without them being read. She asked DP Snell to recuse himself and

that the appeal be reconsidered by “another expert” under s 378 WIMA.

The email address used by the appellant to lodge her submissions in reply and certificate

of service was not the proper address under r 2.2 of the WCC Rules 2011. In her email to

President Keating DCJ dated 24 July 2018, she requested that “Acting President Snell”

recuse himself and sought reconsideration by “another expert” under s 378 WIMA.

The recusal application

The appellant stated that she had obtained “help” from Dr Scott Calnan and that her

submissions were “…an independent expert opinion on the subject of Administrative Law,

Constitutional law and Disability discrimination.” She argued, relevantly:

The decision of Acting President was made without reading/considering the

submissions prepared by a very expert person in the legal field. This is a legal bias

and technical ground for dismissing his decision. In the determination letter in

paragraphs 78–80 Acting President has expressed his opinion on the previous cases

highlighted by the respondent without reading my submissions on those cases.

On the ground of fairness Acting President Snell should recuse himself from the

matter….

The respondent noted that the only basis of the application was that DP Snell was not

provided with the appellant’s submissions in reply, but the appellant failed to articulate “the

asserted connection with the possibility of departure from impartial decision mak ing” that

was referred to in Ebner. Apart from the assertion of bias, no substantial argument was

made to establish any apprehension of bias and “[a]pparent bias cannot be shown by an

adverse conclusion in itself”, referring to Zanker v Kupsch [2014] SASCFC 13, [76]. There

was nothing to establish that the Deputy President’s conclusions were “based on anything

other than the totality of the evidence”, or any basis to conclude that in reconsidering the

matter, he would do so with any bias and there were no justifiable grounds for the

application.

In reply, the appellant referred to the “universal human tendency to attempt to adhere to a

judgment once formed even in the face of new and different information”. She also referred

to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75


ALJR 277 (Ebner), [6]. And argued that the decision was “incomplete, unfair and unlawful

on the totality of the evidence”, as he “was not supplied all the submissions…”

Consideration of the recusal application

DP Snell noted that in Ebner, the High Court decided that the ordinary and correct practice

is for a judicial officer to whom a matter was allocated, and who was the subject of a recusal

application, to decide that application. He therefore decided the application on the papers.

DP Snell stated that the email dated 24 July 2018, suggested that the appellant alleged

apprehended bias and he stated:

15. In Michael Wilson & Partners Limited v Nicholls the plurality described the test:

It has been established by a series of decisions of this Court that the test to be

applied in Australia in determining whether a judge is disqualified by reason of

the appearance of bias (in this case, in the form of prejudgment) is whether a

fair-minded lay observer might reasonably apprehend that the judge might not

bring an impartial and unprejudiced mind to the resolution of the question the

judge is required to decide. No party to the present appeal sought in this Court,

or in the courts below, to challenge that this was the test to be applied: Nicholls,

[31].

16. Their Honours also referred to the two-step nature of such an application, which

had been described in Ebner, saying:

In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that

application of the apprehension of bias principle requires two steps. First, it

requires the identification of what it is said might lead the judge to decide a

case other than on its legal and factual merits. And second, there must be an

articulation of the logical connection between that matter and the feared

deviation from the course of deciding the case on its merits: Nicholls, [63]

DP Snell found that the events complained of could not give rise to a reasonable

apprehension, on the part of a fair-minded lay observer, that he would not bring an impartial

and unprejudiced mind to the reconsideration application and that the submissions in reply

could be appropriately considered in the reconsideration application. However, he held that

the appellant could not make out the second step identified in Ebner, namely articulation

of the connection between those events and the possibility of departure from impartial

decision making:

18. In Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 (Re JRL; Ex parte CJL),

Mason J said:

Although it is important that justice must be seen to be done, it is equally

important that judicial officers discharge their duty to sit and do not, by acceding

too readily to suggestions of appearance of bias, encourage parties to believe

that by seeking the disqualification of a judge, they will have their case tried by

someone thought to be more likely to decide the case in their favour: re JRL:

Ex Parte CJL, [5].

19. In Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR

679 (Jia Legeng). Gleeson CJ and Gummow J said:

The state of mind described as bias in the form of prejudgment is one so

committed to a conclusion already formed as to be incapable of alteration,

whatever evidence or arguments may be presented. Natural justice does not

require the absence of any predisposition or inclination for or against an

argument or conclusion.


He declined the recusal application.

The reconsideration application

The respondent opposed the application and argued that the fact that the appellant “failed

to appropriately submit her reply… is not a ground for reconsideration.” It relied upon the

decision of Roche ADP (as he then was) in Samuel v Sebel Furniture Limited [2006]

NSWWCCPD 141; 5 DDCR 482 (Samuel), which summarised the principles governing

reconsiderations under s 350 (3) WIMA, as follows:

(1) the section gives the Commission a wide discretion to reconsider its previous

decisions (‘Hardaker’);

(2) whilst the word ‘decision’ is not defined in s 350, it is defined for the purposes of s

352 to include ‘an award, order, determination, ruling and direction’. In my view

‘decision’ in s 350 (3) includes, but is not necessarily limited to, any award, order or

determination of the Commission;

(3) whilst the discretion is a wide one it must be exercised fairly with due regard to

relevant considerations including the reason for and extent of any delay in bringing

the application for reconsideration (‘Schipp’);

(4) one of the factors to be weighed in deciding whether to exercise the discretion in

favour of the moving party is the public interest that litigation should not proceed

indefinitely (‘Hilliger’);

(5) reconsideration may be allowed if new evidence that could not with reasonable

diligence have been obtained at the first Arbitration is later obtained and that new

evidence, if it had been put before an Arbitrator in the first hearing, would have been

likely to lead to a different result (‘Maksoudian’);

(6) given the broad power of ‘review’ in s 352 (which was not universally available in the

Compensation Court of NSW) the reconsideration provision in s 350(3) will not

usually be the preferred provision to be used to correct errors of fact, law or discretion

made by Arbitrators;

(7) depending on the facts of the particular case the principles enunciated by the High

Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147

CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later

reconsideration proceedings if it unreasonably refrained from pursuing that claim or

defence in the original proceedings (‘Anshun’);

(8) a mistake or oversight by a legal adviser will not give rise to a ground for

reconsideration (‘Hurst’), and

(9) the Commission has a duty to do justice between the parties according to the

substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act): (Samuel

[58]).

The respondent argued that the principles numbered 4, 5, 8 and 9 above militate against

reconsideration and the merits of the appellant’s case lack substance or significance.

In reply, the appellant argued that insistence upon her compliance with rule 2.2 would

amount to insistence on formality and technicality and as a self-represented litigant, she

should not be held to the same standard as a legal representative. The guidelines also

speak of “mistake or oversight by a legal representative or agent, not an unrepresented

litigant” and reconsideration involving the mere “talking (sic) into consideration of the

appellant’s reply in the matter will not have the effect of unreasonably prolonging litigation.”


She asserted that the WCC’s procedures “were equally responsible” for the confusion and

someone should have communicated with her or opened the former employee’s mailbox.

However, the appellant also sought to raise new matters, namely:

1. Presumption against invasion of significant rights

She referred to Buck v ComCare where Finn J said of the right to statutory

compensation:

…it is a right of sufficient significance to the individual in my view, that, where

there may be doubt as to Parliament’s intention, the courts should favour an

interpretation which safeguards the individual: [1996] FCA 1485; 66 FCR 359

(Buck), [20].

She argued that the Full Bench of the Federal Court applied that reasoning in

Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; 136 ALD 536, [34] and

the previous WCC decisions raised by the respondent are not binding as it is an

administrative body and not a court. The WCC should follow the reasoning in Buck,

and interpret ‘police officer’ “in the way most favourable” to her.

2. Constitutional Invalidity

In the alternative, s 39 WCA and cl 25 of Pt 19H of Sch 6 WCA are “invalid by virtue

of s 109 of the Constitution due to their inconsistency with provisions of the Disability

Discrimination Act 1992 (Cth)”. She stated:

As a result, neither s 39, nor Schedule 6, Part 19H, clause 25 of the [1998 Act]

could properly be relied upon by the Arbitrator in his determination as they are

constitutionally invalid and of no force or effect.

In relation to these issues, the respondent referred to Banque Commerciale SA v

Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 (Banque Commerciale), [18], where

Mason CJ and Gaudron J said:

The function of pleadings is to state with sufficient clarity the case that

must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In

Liquidation). In this way, pleadings serve to ensure the basic requirement

of procedural fairness that a party should have the opportunity of

meeting the case against him or her and, incidentally, to define the issues

for decision. The rule that, in general, relief is confined to that available on the

pleadings secures a party's right to this basic requirement of procedural

fairness. Accordingly, the circumstances in which a case may be decided on a

basis different from that disclosed by the pleadings are limited to those in which

the parties have deliberately chosen some different basis for the determination

of their respective rights and liabilities. (excluding citations) (emphasis in the

submissions)

The respondent relied upon the decision of the plurality in Water Board v Moustakas

[1988] HCA 12; 180 CLR 491 (Moustakas):

More than once it has been held by this Court that a point cannot be raised

for the first time upon appeal when it could possibly have been met by calling

evidence below. (emphasis in the submissions)

Determination of the reconsideration application

DP Snell stated that the application under s 378 WIMA was misconceived as the relevant

power is found in s 350 (3) WIMA. He decided to regard the application as if it was made

under s 350 (3) WIMA. This power is discretionary and he referred to Hardaker v Wright &


Bruce Pty Ltd [1962] SR (NSW) 244 (Hardaker), in which Owen and Walsh JJ stated (in

discussing the equivalent provision in the 1926 Act):

Such reconsideration is not necessarily limited to an examination of changed

circumstances, or of fresh evidence concerning the original circumstances. It may, in

a proper case, extend to considering whether an error has been made, whether of

fact or of law, and to making such new or altered award as the circumstances, when

thus reconsidered, appear to require: (at p249).

Their Honours also adopted the principles stated by Street CJ in Hilliger v Hilliger (1952)

52 SR (NSW) 105 (Hilliger):

It is important, naturally, to keep well in mind the distinction between the existence

of the power and the occasion of its exercise, and courts should not lose sight of the

general rule that public interest requires that litigation should not proceed

interminably: (at p108)

Generally, reconsideration would not be appropriate if a party’s submissions were not

considered because they failed to lodge them with the Registry in accordance with the

2011 Rules and the WCC’s practice, but the appellant is self-represented and served her

submissions in time and attempted to lodge them electronically at an incorrect address.

Therefore, the interests of justice favoured reconsidering the Mahal appeal decision to

enable consideration of the submissions in reply.

DP Snell referred to the decisions of Court of Appeal in South Western Sydney Area Health

Service v Edmonds [2007] NSWCA 16 ((McColl JA, Giles and Tobias JJA agreeing) and

Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (McColl JA (Allsop P agreeing),

which considered the operation of s 354 WIMA. He noted that the submissions headed

“Presumption against invasion of significant rights” and “Constitutional invalidity” were not

part of the case presented at first instance before the Arbitrator, when the appellant was

legally represented, and they were not raised in her grounds of appeal. There was no

application to amend the grounds of appeal and the respondent objected to them being

raised as they are not relevant to the issue of whether the appellant was a police officer.

He stated:

64. This was the issue dealt with by the Arbitrator. My role on an appeal pursuant to

s 352 of the 1998 Act is to determine “whether that determination was or was not

affected by any error of fact, law or discretion, and to the correction of any such error”.

The submissions relating to the “Constitutional Invalidity” argument fall outside that

scope, and the respondent’s submission that they are not relevant to the issue in

dispute is correct. …

69. The appellant has not actually sought leave to raise these further issues, or to

amend her grounds of appeal. Rather, the appellant submits that the Commission is

required by law to consider any substantial argument that addresses whether there

has been an error of fact, law or discretion (that is, any appealable error), regardless

of what stage in the proceedings the argument is raised.

DP Snell observed that s 3 (d) WIMA includes a ‘system objective’ “to be fair, affordable

and financially viable” and s 3 (f) includes a ‘system objective’ that the other objectives of

that section are to be delivered “efficiently and effectively”. These objectives are not

assisted by permitting a party to raise matters late during an appeal, that were not raised

at an appropriate time. The scheme’s object must be considered in construing the Acts:

see Hunter Quarries Pty Ltd v Mexon as Administrator for the Estate of the Late Ryan

Messenger [2018] NSWCA 178, [64] – [66].


He stated that s 354 does not “exonerate” the Commission from an obligation to apply rules

of law, including those related to procedural fairness” and it would be inappropriate and

contrary to authority to permit the appellant to raise these arguments for the first time, at

this stage of the proceedings. He held that the appellant had not made out any ground for

the rescission, alteration or amendment of the Mahal appeal decision dated 20 July 2018.

Accordingly, he confirmed that decision.

Worker or Deemed worker – Weighing the indicia of employment principles

Digby v Hyspec Construction & Roofing Pty Ltd [2018] NSWWCCPD 39 – President

Keating DCJ – 13 September 2018

Background

On/about 19 February 2017, the deceased approached the respondent seeking work as a

carpenter. He commenced working with the respondent from 20 February 2017. However,

on 21 February 2017, he died after being electrocuted while he was carrying out building

work with the respondent. The only issue was whether he was a worker or a deemed

worker at the time of his death.


On 13 February 2018, the appellant lodged an ARD, which alleged that the injury occurred

while the deceased was working as a carpenter at the direction of the respondent.

However, on 8 May 2018, Arbitrator McDonald conducted an arbitration hearing and on 5

June 2018, she entered an award for the respondent. In doing so she:

• Found that the relationship between the deceased and the respondent revealed few

of the indicia of employment and many that mitigated against it and that weighing the

indicia, the deceased was not a worker employed by the respondent at the date of

his death and he was also not a deemed worker;

• Found that much of the appellant’s evidence was “in a general form” and ‘reflective

of impressions that she and the deceased formed rather than providing

conversational context”, while the evidence of Mr Anderson (Director of the

respondent) was consistent with the evidence of Mr Walther (the other Director).

Where the appellant’s evidence conflicted with Mr Anderson’s evidence, she

preferred the latter and found that on 19 February 2017, Mr Anderson did not offer

the deceased a full-time position;

• Considered the relevant statutory provisions and relevant authorities including

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens).

Regarding “control”, she held that it was inevitable that Mr Anderson would exercise

a level of control over the worker that had to be done at the site because his company

was contracted to perform the work. She also accepted his evidence that he

expected that the deceased would know how to perform the tasks required of him

and that they worked as a team. However, the fact that Mr Anderson was in control

of the site did not inevitably lead to the conclusion that the deceased was a worker

and she considered Mr Anderson’s evidence that he retained the deceased as a

subcontractor; and

• Concluded that the deceased was a sole trader before 20 February 2017, as he was

providing his services to another company in the preceding week and he issued

invoices, used a business name and held an ABN. The invoices did not include GST,

but that was not determinative of his employment status. The text messages between

the deceased and Mr Anderson also indicated that the deceased considered himself

to be a sole trader, as he said that he had his own ute and tools and that he worked

as a sole trader before joining the Navy and he was again doing so. His request for


information regarding contacts in the building industry suggested that he intended to

work as a subcontractor. She held that the reference to full-time work was only in the

context of considering the possibilities that may present in the future if the deceased

proved to be suitable. She concluded that the appellant’s evidence regarding her

discussions with the deceased about the terms of payment did not cause her to doubt

Mr Anderson’s evidence.

Appeal

The appellant alleged that the Arbitrator erred:

(1) in law when she failed to correctly apply the law relating to the task of weighing the

indicia of employment;

(2) in her fact finding when she concluded there were “few” indicia in favour of worker

and “many” in favour of independent contractor;


indicia of employment, to her apparent determined relevant indicia;


indicia of employment by applying a numerical approach rather than a weight

approach;

(5) in fact, and law when she proceeded on the basis that Geraghty CCJ in the first

instance in the matter of WorkCover Authority of NSW v Mackley [2006] NSWCA

204; 66 NSWLR 305; 5 DDCR 41 (Mackley) held that someone who performed work

under a casual and fleeting arrangement was not a worker;

(6) in her fact finding by failing to determine the canvassed issue that the deceased was

a casual employee and hence a worker for the purposes of the legislation;

(7) in the exercise of her discretion by taking into account an irrelevant matter being the

business name on invoices previously sent to different organisations;

(8) in respect of her further determination with respect to the alternative assertion of

deemed employment by concluding that there was no evidence of the end of the

deceased’s relationship with Boers Construction, and

(9) in respect of her further determination with respect to the alternative assertion of

deemed employment by incorrectly using a discretion in failing to take into account

the absence of GST charges and giving inappropriately excessive weight to the use

of a business name and ABN.

President Keating referred to the decision of Bromberg J in On Call Interpreters and

Translators Agency Pty Ltd v Commissioner of Taxation (No 3): [2011] FCA 366; 279 ALR

341 (On Call Interpreters), in which His Honour referred to the decision of the High Court

in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 (Hollis). He stated:

208. Simply expressed, the question of whether a person is an independent

contractor in relation to the performance of particular work may be posed and

answered as follows:

Viewed as a ‘practical matter’:

(i) is the person performing the work an entrepreneur who owns and operates a

business, and,

(ii) in performing the work, is that person working in and for that person’s business

as a representative of that business and not of the business receiving the work?


If the answer to that question is yes, in the performance of that particular work the

person is likely to be an independent contractor. If no, then the person is likely to be

an employee.

209. The question which this approach poses appears to me to be the central

question in the application of the totality test. The question provides the focal point

around which the indicia thrown up by the totality test may be examined. The central

question has two elements. The first is whether the person has a business. The

second is whether the work or the economic activity being performed is being

performed in and for the business of that person: Sweeney at [31]: (On Call

Interpreters, [207] - [209]).

Keating P made the following findings:

Ground (1): The Arbitrator correctly identified the indicia discussed in Stevens and was

conscious that control was a significant factor in determining whether the deceased was a

worker as defined in s 4 WCA. The totality of the relationship had to be considered and the

Arbitrator clearly had regard to the control issue in concluding that the deceased was not

a worker at the date of his death.

Ground (2): The Arbitrator was required to resolve the evidentiary conflict regarding the

deceased’s employment status and she preferred Mr Anderson’s evidence on that issue.

He stated:

107. In Midcoast County Council t/as Midcoast Water v Reed Constructions Australia

Pty Ltd [2011] NSWCA 268 (Midcoast County Council) Meagher JA (Basten and

Beazley JJA agreeing) said (at [32]):

The relevant principles as to fact finding on appeals by way of rehearing are

not in dispute. This Court must set aside challenged findings of fact which are

shown to be wrong. When addressing those challenged findings, the court

must weigh conflicting evidence and draw its own inferences and conclusions

from that evidence, giving due regard to the fact that it has not seen nor heard

the witnesses. Specifically, if a finding might be affected by the trial judge’s

impression about the credibility of a witness or witnesses, this court should

respect the advantage of the trial judge in that regard. Usually such a finding

should stand unless it is shown that the trial judge ‘has failed to use or has

palpably misused his advantage’ or acted on evidence which was ‘inconsistent

with facts incontrovertibly established’ or ‘glaringly improbable’: Devries v

Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

at 479, 480–481; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]–

[27].

The Arbitrator did not err in her fact finding when she concluded that there were “few”

indicia in favour of “worker” and “many” in favour of independent contractor”.

Ground (3): Keating P rejected the appellant’s submission that the Arbitrator should have

given extra weight to the indicia of control as being inconsistent with On Call Interpreters

and Hollis. He stated:

128. As demonstrated by the consideration in ground two, the Arbitrator dealt with a

range of indicia in determining the ultimate question. The deceased’s invoicing

practices immediately prior to his death was a relevant factor in determining that

question but it was not determinative. In any event, there is no evidence to suggest

that the Arbitrator gave more weight to the form of the prior invoices than she did to

the control issue.

http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1993/78.html

http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2003/22.html

http://www7.austlii.edu.au/cgi-bin/LawCite?cit=%282003%29%20214%20CLR%20118

http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2003/22.html#para25


Ground (4): Keating P rejected the appellant’s submission that the Arbitrator’s use of the

word “few” in comparison with the word “many” illustrated that she approached the task of

weighing the indicia of employment as a “mere numerical analysis. The submission is

based upon a fundamental error, that control is the prominent factor and carries more

weight than other indicia. This is not an accurate statement of the law.

Ground (5): Keating P referred to Practice Direction 6 – Appeal Against a Decision of the

Commission Constituted by an Arbitrator, which requires the full and correct name of each

authority to be given and, if unreported, a copy of the decision must be attached to the

submissions. However, the unreported authority that the appellant’s counsel referred to

was not placed before the Arbitrator or before himself on appeal. On 27 August 2018, the

appellant was directed to lodge a copy of the decision in Mackley. He stated:

148. The reported decision of the Court of Appeal decision Mackley revealed the

facts in the first instance proceedings before Geraghty CCJ in which the “worker”

issue was decided. It stated that Mr Mackley was a carpenter doing carpentry work

on a house at Manilla in New South Wales. He had no employees; however, on one

particular occasion he sought the assistance of Mr McLeod who lived nearby. Mr

McLeod assisted Mr Mackley with certain tasks for a short period of time before he

was injured. The extract from the decision of Geraghty CCJ of the decision in

Mackley indicates that, on the facts of the case, his Honour was in considerable

doubt as to whether the injured Mr McLeod was a worker. It appears that the

determination that he was a worker was finely balanced and depended on the facts

of that case.

149. It appears that in the recording of Mr Stanton’s submission, the Arbitrator

mistakenly referred to the first instance decision of Geraghty CCJ as providing

authority for the proposition that someone who performed casual labour or fleeting

employment was not a worker. The import of Geraghty CCJ’s decision was to the

contrary…

152. As I have said, Geraghty CCJ’s decision appeared to turn on its own facts. It

does not appear to identify any statement of principle other than depending on the

facts, that fleeting or short-term employment may satisfy the definition of “worker”.

The application before the Arbitrator failed, not because the engagement was

fleeting, but because a careful weighing of the evidence favoured the conclusion that

the deceased was not a “worker”.

He was not satisfied that this affected the Arbitrator’s reasoning or the outcome.

Ground (6): Keating P held:

164. Notwithstanding a vigorous cross-examination, it was clear from the oral

evidence that Mr Anderson did not offer the deceased employment, casual or

otherwise. That evidence was corroborated by Mr Walther. I do not accept that the

quote cited by the appellant above was intended to give any contrary impression.

165. The issue before the Arbitrator was whether the deceased was a worker under

the legislation. She was not required to consider whether he was a causal employee.

A “casual” employee is not a concept recognised under the legislation. Therefore,

the Arbitrator did not err in not dealing with the appellant’s submission that the

deceased was a casual employee.

He rejected the submission that the Arbitrator failed to determine an issue in dispute.

Ground (7): Keating P held that it was relevant to consider the deceased’s history of

employment relationships and it was relevant that the deceased had raised invoices in a

business name, quoting an ABN, to organisations that he had contracted to immediately


before his relationship with the respondent. This was not determinative of the employment

relationship with the respondent, but it was open to the Arbitrator to conclude that the use

of the business name and the ABN were factors supporting that he was an independent

contractor.

Ground (8): Keating P stated:

192. The evidence does not support an inference that the deceased decided to stop

working as an independent contractor in favour of taking up full-time paid work as an

employee of the respondent. Rather, the evidence supports an inference that the

deceased elected to contract with parties other than Boers Construction as an

independent contractor. That is not proof of an employment relationship of the nature

of a “worker” with the respondent. The evidence does not establish that the deceased

stopped trading in his business name or as a sub-contractor, as the appellant seeks

to suggest. To make such a finding would require the drawing of an inference which

is not available on the evidence presented.

Ground (9): Keating P rejected the submission that the Arbitrator failed to deal with the

GST issue when determining whether the deceased was a deemed worker. He stated:

203. I accept that the “indicia of employment” are relevant to the question of whether

the deceased was a worker under s 4 of the 1998 Act as distinct from the question

of whether the deceased was a deemed worker pursuant to cl 2 of Sch 1. However,

there will be aspects of the evidence dealing with the worker issue that are relevant

to a determination of whether the deceased was engaged in work that was incidental

to a trade or business regularly carried on by the deceased in his own name or a

business name. The appellant’s complaint is not whether the Arbitrator applied the

wrong test but whether she failed to consider GST in her analysis of the deemed

worker issue and the weight she attached to the ABN evidence in that analysis.

Therefore, in dealing with this ground, I have restricted my reasons to the particular

challenges to the Arbitrator determination on those matters.

All grounds of appeal failed and Keating P confirmed the Arbitrator’s determination.

Documents

CASE REVIEWS - wiro.nsw.gov.au Bulletin Issue 23... · Wood DP observed that grounds 1, 3 4, 5 and 6 are dependent upon the outcome of ground 2 - whether the insurer could raise the