Chief Commissioner of State Revenue v Nova Security Group Pty Ltd [2026] NSWCATAP 99;

Determination of whether questions of law arise - paragraph 35

Ground 1 - paragraph 42

What did ITM decide? - paragraph 44

Identification of the employment agency contract - paragraph 48

Characterisation of the employment agency contract - paragraph 49

Reliance on indicia and judicial glosses from other cases

The reasons of Basten AJA - paragraph 55

The reasons of Ward P - paragraph 58

The reasons of Payne JA - paragraph 62

Subsequent reception of ITM - paragraph 66

The ITM approach - paragraph 74

How is the characterisation exercise to be performed? - paragraph 77

Decision below - paragraph 83

Determination of Ground 1(a) to (e)

The Chapeau to Ground 1 - paragraph 85

Ground 1(a) - paragraph 89

Ground 1(b) - paragraph 103

Ground 1(c) - paragraph 115

Ground 1(d) - paragraph 124

Ground 1(e) - paragraph 131

Conclusion on Ground 1 - paragraph 136

Ground 2 - paragraph 141

Conclusion - paragraph 159

Orders - paragraph 1

1. The respondent (Nova) is a private security firm which holds a master security licence under the Security Industry Act 1997 (NSW). Under contracts, Nova provides services to clients by providing security guards who perform functions, usually at licensed venues, such as crowd control, monitoring patrons for intoxication, bag searches and other security activities related to venue safety.
2. The appellant (the Commissioner) assessed Nova to payroll tax (the assessments), on the basis that the contracts between Nova and its clients were employment agency contracts, under s 37 in Part 3, Div 8 of the Payroll Tax Act 2007 (NSW). After the Commissioner refused Nova's objections to the assessments, Nova sought administrative review of the assessments, and the Tribunal concluded its favour: Nova Security Group Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCATAD 124 (Decision).
3. To understand the basis of this internal appeal, it is useful to set out, briefly, the Tribunal's approach at first instance.
4. The Tribunal described a principal issue in dispute as follows, at [21]:

"Did Nova's guards provide security services "in and for" its clients' businesses?"

1. The Tribunal identified, by reference to Southern Cross Group Services Pty Limited v Chief Commissioner of State Revenue (2019) 108 ATR 16 at [60] and HRC Hotel Services Pty Limited v The Chief Commissioner of State Revenue (2018) 108 ATR 84; [2018] NSWSC 820 (HRC Hotel Services) at [153], that the statutory question required consideration of "whether the service provider is sufficiently integrated into the clients business to be seen as an addition to the client's workforce, and works in much the same way as the clients employees": Decision at [36]. In so doing, the Tribunal accepted that the question was not whether the services were integral, in the sense of being essential to the business.
2. Ultimately, the Tribunal said at [196]:

"Balancing all of the factors, while I have found Nova was performing integral services to its business clients, I find the guards were not integrated into the clients' businesses nor effectively added to their workforces. After reviewing the detail in each of the three agreements between Nova and its business clients, I find that Nova was not providing services "in and for" the conduct of the clients' businesses. I find that the arrangements between Nova and its business clients were not employment agency contracts within s 37 of the PTA."

1. As reflected in the Decision, the parties each made extensive arguments as to the effect of the recent decision of the Court of Appeal in Chief Commissioner of State Revenue v Integrated Trolley Management Pty Ltd [2023] NSWCA 302 (ITM) on the correct approach to answering the statutory question and determining the outcome in this case. The Tribunal rejected the Commissioner's submission that ITM compelled the Tribunal to find that the contracts were employment agency contracts. The Tribunal said at [192]:

"In this proceeding, the Chief Commissioner contends that the court of appeal in ITM Appeal, has changed the landscape in respect of previous decisions, particularly, concerning security services. The Chief Commissioner submits, which I reject, that characterising security services as not "in and for" a client's business "is suggestive of error" because of the findings made by Basten AJA in the ITM Appeal at [54]. ITM Appeal can be distinguished on the facts. I am persuaded by Nova's argument that the findings made by Ward P in E Group Security have not been overturned by the court of appeal in ITM Appeal and should not be followed in the way as submitted by the Chief Commissioner. However, I accept that it is relevant to take into consideration the relevant contractual documents when considering the requirements of Nova, together with the other factors Ward P, took into consideration in E Group Security."

1. The Commissioner brings this appeal solely on questions of law and relies on two questions, which are, in essence, as follows:

(1) First, whether the Tribunal applied the wrong test in determining the answer to the question, relevant to s 37 of the Payroll Tax Act, of whether the services were provided "in and for" the conduct of the client's business.

(2) Second, whether the Tribunal misconstrued the Security Industry Act as precluding clients from exercising a significant degree of control over security services.

1. At the heart of the first aspect of the Commissioner's appeal is the following contention: notwithstanding that, in the past, the "in and for" test was approached by courts and tribunals using a multifactorial or fact-sensitive analysis and by reference to questions such as whether the service providers were integrated into a client's business (the old approach), to do so is wrong. The Commissioner contends that the "in and for" test was "clarified and reformulated" in ITM (the ITM approach), which "changed the landscape". The Commissioner contends that the Tribunal erred in treating ITM as being distinguishable on its facts and in not recognising that ITM decided several points of general application, that renders the oft-used, old approach incorrect.
2. As the Commissioner brings this appeal solely on questions of law, and to avoid straying into mixed questions of fact and law, the Commissioner's case was put at a high level of abstraction and not tied to particular facts of the case. The Commissioner's case was not that the old approach, as applied to the facts and circumstances of this case, resulted in error. Rather, it was that the Tribunal's recourse to the old approach was wholly inapt and inevitably led to error. The Commissioner's case was, in effect, that error would inevitably arise any time the old approach is used.
3. We have found that ITM indeed identifies issues of general principle that are not to be treated as being limited to the facts in issue in that case. In that sense, the Tribunal erred in not recognising this. Further, we accept that the ITM approach provides reliable guidance as to how a tribunal should approach the question of whether the services are provided "in and for" the conduct of the client's business. Guidance that, if followed, will substantially shorten hearings, lead to clear and consistent results and avoid error. However, we have not discerned that ITM decided that using the old approach will necessarily, inevitably and always lead to error. For that reason, whilst we accept that the Tribunal adopted the old approach, we have dismissed the appeal on the first question of law.
4. In light of our determination that ITM does not say that using the old approach will inevitably lead to error, whether the Tribunal, here, erred in concluding that the "in and for" test was not met, raises a mixed question of fact and law. The Amended Notice of Appeal does not seek the grant of leave to appeal on mixed questions of fact and law. No warrant for the grant of leave to appeal was identified.
5. As to the second aspect, we have found that the Tribunal did not construe the Security Industry Act as precluding clients having control. The Tribunal's decision concerning control was grounded in the terms of the contracts. Accordingly, no error on the questions of law identified by the Commissioner is made out on the second aspect.
6. The appeal is dismissed for the reasons which follow.

1. Generally, an employer who pays taxable wages in relation to services performed by an employee in NSW is liable to pay payroll tax: Payroll Tax Act, ss 6, 7 and 11. Additionally, liability to pay payroll tax may arise on payments made to workers who are not a taxpayer's employees. One such case is in respect of an "employment agent" who is taken to be the employer and the person who performs work is taken to be the employee.
2. Part 3, Div 8 of the Payroll Tax Act relevantly provides:

37 Definitions

(1) For the purposes of this Act, an employment agency contract is a contract, whether formal or informal and whether express or implied, under which a person (an employment agent) procures the services of another person (a service provider) for a client of the employment agent.

(2) However, a contract is not an employment agency contract for the purposes of this Act if it is, or results in the creation of, a contract of employment between the service provider and the client.

(3) In this section -

contract includes agreement, arrangement and undertaking.

38 Persons taken to be employers

For the purposes of this Act, the employment agent under an employment agency contract is taken to be an employer.

39 Persons taken to be employees

For the purposes of this Act, the person who performs work for or in relation to which services are supplied to the client under an employment agency contract is taken to be an employee of the employment agent.

1. Many cases have considered the expression in s 37, "procures the services of another person (a service provider) for a client of the employment agent".
2. In UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852 (UNSW Global) at [62], White J identified that to interpret the words "for a client" in s 37 in an expansive way is to give the section a reach that was not intended by Parliament and that the expression should be read as meaning "in and for the conduct of the business of the employment agent's client". This explanation of the meaning of "for a client" in s 37(1) was confirmed in Chief Commissioner of State Revenue v E Group Security Pty Ltd (2022) 109 NSWLR 123; [2022] NSWCA 115 (E Group Security (CA)) at [42]-[47].
3. In UNSW Global, it was identified that the employment agent provisions were intended to capture services provided through an intermediary that were provided by an individual:

(1) who would comprise, or who would be added to, the workforce of the client (at [63]); or

(2) to help the client conduct its business in the same way, or much the same way, as it would do through an employee (at [64]).

1. Since UNSW Global, courts have posed various questions in a bid determine the answer to what has come to be accepted as being the statutory question of "whether services provided were provided in and for the conduct of a client's business". These include:

(1) Whether the services are "integrated into" the client's business (HRC Hotel Services at [120], [139]).

(2) Whether the workers carry out "employee-like" duties (Southern Cross Community Healthcare Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317 at [218], [244]-[250]).

(3) Whether the staff are "an addition to" the client's workforce (HRC Hotel Services at [153]; Bayton Cleaning Co Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 657 (Bayton) at [272], [274], [276]).

1. Often, it had been said that to answer the statutory question requires a fact sensitive analysis (E Group Security Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1190 (E Group Security (SC)) at [318]) and various decisions have grappled with detailed factual matrices (e.g., E Group Security (SC); Bayton; HRC Hotel Services).
2. However, since ITM, an approach firmly grounded in the terms of the putative employment agency contract and one that is not confused by recourse to indicia from previously decided cases or various "glosses" put on the statutory language in earlier cases, is warranted. As explained in ITM, the correct approach is to take the following steps:

(1) By reference to the terms of the contract between the putative employment agent and the client, identify the work to be done by persons who provide the services to the client.

(2) Identify the nature and ordinary conduct of the client's business.

1. As also explained in ITM, it is the relationship between steps (1) and (2) that determines whether the services are provided "for" the client in the sense of being "in and for" the conduct of the client's business: at [7], [49]. Identifying the connection between the services and the conduct of the business is the third step in the requisite analysis. When parties speak of "characterising" the employment agency contract, we take them to mean undertaking an exercise at what we call step (3). By reference to the nature of the relationship between the work to be done (as identified in step 1) and the nature and ordinary conduct of the client's business (as identified in step 2), it can be said whether or not the putative employment agency contract is, for the purposes of s 37 of the Payroll Tax Act, a contract under which a person (an employment agent) procures the services of another person (a service provider) for (in the sense described in UNSW Global) a client of the employment agent.
2. The focus of this appeal is on whether the Tribunal approached step 1 and step 3 correctly.

Tribunal's jurisdiction on an internal appeal - nature of appeal.

1. There was no dispute as to the basis of the Appeal Panel's jurisdiction. However, as the appeal was very narrowly confined, it repays to identify the statutory basis of our jurisdiction.
2. Section 80 of the NCAT Act provides that on an internal appeal, such as this, the appellant may appeal as of right on a question of law or with leave to the Appeal Panel on any other ground. As mentioned, leave to appeal was not sought.
3. Recently the principles relevant to s 83 of the NCAT Act, which apply to appeals from NCAT Appeal Panel decisions to the Supreme Court of NSW, were summarised in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 (Targeted Property) at [33] as follows (original emphasis):

"There are several important points to make about this provision:

(1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted.

(2) An appeal is limited to "an appeal on a question of law".

(3) As was recently emphasised in Thomas and Naaz at [32], "it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction". (To similar effect, see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself.

(4) What constitutes a question of law is "vexed and context dependent" in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51).

(5) Although there is no clear test of what constitutes a question of law for the purposes of s 83 of the CAT Act, it is important not to lose sight of the continuing binding authority in this State of the Court of Appeal's decision (by majority) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Azzopardi stands for the proposition that a particular finding which is alleged to be "perverse" or "unreasonable" or "not reasonably open" is not ordinarily a question of law. At pp 155-156, Glass JA (with whom Samuels JA agreed, Kirby P dissenting) said:

It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of Metropolitan District Holden at Sydney; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654.

...when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General.

See also Thomas and Naaz at [53].

(7) It is unnecessary to decide for the purposes of this appeal whether a "question of law" encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J).

(8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed).

(9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has "a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge". It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]-[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]).

(10) A s 83 appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT at first instance (see Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10]).

1. We pause to add that in addition to what is said above, where the question of law concerns procedural fairness, it will be appropriate for the Appeal Panel to make findings of fact concerning procedure, but not facts concerning the substantive issues in dispute: Donohoe v Albulario [2025] NSWSC 9 at [33]. This principle applies under s 80 of the NCAT Act too: Yuen v Thom [2016] NSWCATAP 243 at [21]. Further, the question of law must arise "on" the appeal; and not be arid: see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90], cited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25(10)].
2. Notwithstanding that we are concerned with s 80 and not s 83 of the NCAT Act, we are satisfied that the above principles identified in Targeted Property apply equally here. We also note that the foregoing is consistent with the way that appeal panels have approached questions of law: see for instance the relevant principles summarised in Unique at [25].
3. With respect to the point raised at [33(7)] of Targeted Properties, we propose to follow the approach in the authorities from the NSW jurisdiction, to the effect that a question of law does not apprehend a mixed question of fact and law. Contextually, there is an even stronger reason to confine a question of law in s 80 to a pure question of law than there is under s 83, as s 80 allows an appellant to seek leave to extend the grounds beyond a pure question of law, whereas s 83 does not. Under s 80, where a mixed question of law arises, leave may be sought to extend the appeal to that question; and leave would be granted in an appropriate case. It has often been said that an important point of principle (even where raised under a mixed question of fact and law) may provide the necessary warrant for the granting of leave.

1. The appellant advances two grounds of appeal.
2. Ground 1 is as follows:

"1. Did the Tribunal identify the wrong issue, apply a wrong legal principle or apply the wrong legal test under s 37 of the PTA by:

(a) Failing to apply the correct "in and for" test, which requires an assessment of whether the work has a degree of regularity and continuity and is to a significant degree under the client's control (decision at [192], [194], [196])?

(b) Instead of applying the correct test, requiring, for the purposes of the "in and for" test, that the worker be "sufficiently integrated into the client[']s business to be seen as an addition to the client's workforce" and "works in much the same way as the client[']s employees" (decision at [36], [193])?

(c) Conducting a "fact sensitive analysis" or multifactorial "balancing" exercise focused on the practical operation of the security contracts, instead of applying the correct "in and for" test by characterising the contracts by reference to their terms (decision at [188]-[196])?

(d) Treating uniforms, interaction with customers, access to staff facilities, provision of equipment, and the "independent" nature of the security services as material to the "in and for" test (decision at [194])?

(e) Treating the on-site performance of security services as immaterial to the "in and for" test, on the basis that this reflects "the nature" of such services (decision at [194(1)])?"

"2. Did the Tribunal misconstrue the Security Industry Act 1997 (NSW) by holding (at decision [194(8)] and [195]) that this Act:

(a) Precludes clients from exercising a significant degree of control over security services obtained through a licensed provider?

(b) Precludes such services from being performed "in and for" the client's business for the purposes of s 37 of the PTA?"

1. The respondent accepted that Grounds 1 and 2 raise questions of law. Nevertheless, we must consider this issue for ourselves.

1. With respect to Ground 1, in summary, the appellant contends that the Tribunal committed a "fundamental error" in finding that ITM is "specific to trolley collectors", which left the Tribunal "free to apply earlier decisions relating to security guards" at Decision [37]-[38], [194(3), (6)], [195] (AS 3 September 2025, par 3). Overarchingly, the basis of Ground 1 was that ITM ushered in a new way of determining when services are provided in and for a client's business; and rejected or renounced the appropriateness of relying on the old approach. Put this way, Ground 1 can be seen to raise the question of law as to whether it must evince a misconstruction of s 37 of the Payroll Tax Act to adopt any approach other than the ITM approach.
2. We are satisfied that Grounds 1(a) to (c) raise the questions of whether the Tribunal identified the wrong issue or applied the wrong legal principle or the wrong legal test. Each of these raise a question of law: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179-180; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
3. Ground 1(d) raises a question of law, if it is to be read to contend that having regard to "uniforms, interaction with customers, access to staff facilities, provision of equipment, and the 'independent' nature of the security services" will always and in every case reflect a misunderstanding of the statutory test; but if the enumerated factors are said not to be material in this case, then that raises a mixed question of fact and law. We read ground 1(d) in the former manner and accept it raises a question of law.
4. Similarly, if Ground 1(e) is taken to read that on-site performance of security services is never immaterial, that too raises a question of law.
5. With respect to Ground 2, the appellant contends that the Tribunal "misconstrued" the Security Industry Act as "precluding significant client control over services obtained through a licensed provider such as Nova" (AS 3 September 2025, par 3).
6. We are satisfied that Ground 2 raises the question of whether the Tribunal misconstrued the statute, which too raises a question of law: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]- [74].
7. The questions of law raised in Grounds 1 and 2 are sufficiently precise that it is easy to identify what the subject matter of the appeal is; and that the questions arise on the appeal. Further, as signalled above, we have read the questions as being sufficiently abstract that they do not constitute mixed questions of fact and law.

1. At the heart of Ground 1 is the Commissioner's contention that the Tribunal erred by failing to apply the approach identified in ITM. The Commissioner contends that the Tribunal instead erroneously applied a fact-sensitive analysis, relying on indicia from previously decided cases, which had been "expressly rejected" by Basten AJA in ITM, with the other members of the Court concurring.
2. We consider it convenient to approach Ground 1 as follows:

(1) We start by ascertaining what ITM decided was the proper approach to answering the statutory question of whether the services are provided in and for the conduct of the client's business.

(2) Next, we consider whether the Tribunal eschewed the approach outlined in ITM and if so, whether it did so in error.

(3) Finally, we consider whether the Tribunal erred by reference to the subparagraphs of Ground 1.

1. The respondent in ITM, Trolley Management, had contracts with Woolworths, ALDI and IGA (the clients). Under the contracts, Trolley Management procured trolley collection services by engaging independent contractors to locate, collect and return supermarket trolleys to the clients' stores. They also procured cleaning services for a small number of stores operated by some of the clients. Notices of Assessment were issued to Trolley Management with respect to liability for payroll tax. The primary judge set aside the assessments, having rejected the contention that Trolley Management was an employment agent for the purposes of Part 3, Div 8 of the Payroll Tax Act.
2. The issue on the appeal to the Court of Appeal was whether, in procuring services supplied by the independent contractors, Trolley Management was an "employment agent" for the purposes of Part 3, Div 8 of the Payroll Tax Act.
3. This question involved consideration of the following issues:

(1) Who are the relevant parties to an "employment agency contract", as defined in s 37 of the Payroll Tax Act.

(2) Whether the employment agency contract should be characterised only by reference to the terms of the contract or whether evidence of how the parties operated under the contract may also be considered.

(3) Whether, and how, matters relied on in other cases as relevant indicia in the analysis of whether services are procured "in and for" the conduct of the business can be taken into account.

1. Justice Basten wrote the lead judgment, with which Ward P and Payne JA agreed, each writing separate concurring reasons.

Identification of the employment agency contract

1. Justice Basten found that the relevant contract for the purposes of s 37 of the Payroll Tax Act is the contract between the putative employment agent and the client: at [32] and [111].

Characterisation of the employment agency contract

1. Referring to E Group Security (CA), which adopted the 'in and for' test stated in UNSW Global, Basten AJA observed (at [49]):

"That language requires the identification of (i) the work to be done by persons who provide the services to a client and (ii) the nature and ordinary conduct of the client's business. It is the relationship between the two which determines the application of s 37(1) in a particular case."

1. Justice Basten noted (at [61]-[62]) that the primary judge was correct to characterise the contract primarily by reference to its terms and to focus upon an objective analysis of the contract.
2. His Honour later concluded (at [111]):

"the application of s 37 must be assessed by reference to the terms of the employment agency contract relied upon by the Chief Commissioner as the basis of the assessment under challenge. In principle, that will be the agreement between the employment agent and its client. Generally, the actual operation of the agreement, including arrangements between the employment agent and its service providers and between the service providers and the persons performing the work will not form a necessary part of the analysis, and will provide little guidance as to the characterisation of the employment agency contract."

"...whilst context may be important to a correct understanding of a employment agency agreement, there is no reason to suppose that in most cases a "fact-sensitive analysis", going beyond an analysis of the contractual arrangements and the nature of the client's business, will be necessary."

1. Justice Basten also clarified the scope of the "in and for" test enunciated in UNSW Global, saying (at [86]):

"In addressing the application of the statutory test, as explained in UNSW Global and accepted by this Court in E Group Security, the Chief Commissioner emphasised that the individuals who worked for the client should do so in much the same way as would an employee of the client. That meant that the business would involve work having a degree of regularity and continuity, and where the nature of the work was to a significant degree under the control and direction of the client. So long as the qualifiers are maintained, this approach should be accepted."

1. Justice Basten accepted the submission that "one could test the nature of the services and their relationship with the business by inquiring whether such services were, or might have been, supplied by employees of the client" and said (at [90]):

"The language used by White J in UNSW Global was 'a contract under which a person procures the services of another person in and for the conduct of the business of the employment agent's client'. Given the purpose of the provisions with respect to employment agency contracts, consideration of how the client might conduct its business, and thus whether it might have conducted its business by employing workers directly, to carry out the services obtained through the agency agreement, can be seen as a potentially valuable inquiry as to the application of the section in a particular case."

Reliance on indicia and judicial glosses from other cases

1. Justice Basten expressed scepticism about the use of indicia from other cases to inform the analysis under s 37 of the Payroll Tax Act (at [40]):

"To describe a case as requiring a "fact-sensitive analysis" is, in substance, to say that other cases, involving different circumstances, will have little if any precedential value. The fact that a particular indicium was relied upon by a judge in one case, does not of itself indicate whether that indicium was a necessary or sufficient factor, or merely one to which the judge had regard. Further, the fact that it proved relevant in that case does not demonstrate that it will be relevant, or necessary, in another case involving different circumstances."

1. His Honour was also critical of reliance on earlier judgments "giv[ing] rise to semantic distinctions ... not founded upon the statute" (at [44]), noting at [46] (quoting Lord Upjohn's observation in Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127) that:

"judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself".

1. His Honour described the use of indicia as "one of the problems which can arise where a gloss on a statute results in judicial exegesis being construed as if it had replaced the statutory language": at [93].

1. Justice Ward's concurring reasons focused on the use of indicia in assessing the relevant employment agency contract.
2. At [2], her Honour accepted that indicia can have some use:

"I accept that the role played by, or weight given to, matters relied on in other cases as relevant indicia in the analysis of whether services are procured "in and for" the conduct of the business of an employment agent's client will vary from case to case; and that such indicia cannot replace the statutory test. However, it should also be noted that what one is commonly presented with, in cases of this kind at first instance, by both plaintiff and defendant, is a veritable shopping list of factors said to be relevant one way or the other to the determination of the ultimate question. It is in that sense that the analysis is one that has been said to be a multifactorial analysis."

1. Her Honour also agreed with Basten AJA's comments to the effect that "the different ways in which the concept of 'in and for' the client's business have been expressed have the risk of creating semantic distinctions that may put an impermissible gloss on the statutory language". However, her Honour noted that "this is in part a function of responses to or consideration of submissions put by the parties in particular cases" (at [3]).
2. Also at [3], her Honour said:

"Insofar as criticism has been made in the present case of the concept of workers being "integrated" into the client's business, I should make clear (if that was not already clear in my earlier decisions to which reference has been made) that this was used in the sense of the question whether the workers were an addition to the work force of the employment agent's client (i.e., whether they were performing services in and for the conduct of the client's business) and was not intended as a substitution for or gloss on the statutory test."

1. Justice Payne's reasons discuss what is required to meet the "in and for" test from UNSW Global at [62].
2. His Honour agreed with Basten AJA that the test requires "the identification of (i) the work to be done by persons who provide the services to a client and (ii) the nature and structure of the client's business" and that it is "the relationship between the two which determines the application of s 37(1) of the Payroll Tax Act in a particular case" (at [7]).
3. Establishing the relationship between those two matters, Payne JA noted (at [8]):

"no doubt requires an exercise of characterisation. That exercise of characterisation may be described as a 'fact-sensitive analysis'. As Basten AJA explains, however, facts found and taken into account for the purpose of one case will have little, if any, precedential value."

1. Justice Payne reiterated what his Honour had said in Banfirn Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 1058 at [25(5)], agreeing with Ward CJ in Eq in Bayton at [105] and [266], that "the question of whether a service provider is working 'in and for' the conduct of the client's business can involve a fact-sensitive analysis with a focus on the manner in which the services are provided for the client" (at [14(4)]).

1. ITM was applied by the Supreme Court in SKG Cleaning Services Pty Ltd v Chief Commissioner of State Revenue; Ezko Property Services (Aust) Pty Ltd atf Ezko Unit Trust v Chief Commissioner of State Revenue [2025] NSWSC 1219 (SKG Cleaning Services). That case concerned two proceedings, heard together, which both involved plaintiffs who each conduct a commercial cleaning enterprise. Each plaintiff had contracts with a range of clients to supply cleaning services, and each plaintiff used subcontractors, or a combination of its employees and subcontractors. The plaintiffs were assessed to payroll tax in respect of payments made to subcontractors for the provision of cleaning services to the plaintiffs' clients (SKG Cleaning Services at [2]). The assessments were made on the basis that the cleaning contracts between the plaintiffs and their clients were "employment agency contracts" under s 37 of the Payroll Tax Act (SKG Cleaning Services at [4]). Justice Hmelnitsky was not persuaded that any client contract was not an "employment agency contract" within the meaning of s 37 of the Payroll Tax Act and consequently found that the plaintiffs had not discharged their onus (SKG Cleaning Services at [9]).
2. In a section titled "applicable principles", Hmelnitsky J noted the "in and for test" enunciated by White J in UNSW Global: SKG Cleaning Services at [64]. Hmelnitsky then set out principles which arose from ITM (at [66]-[70]):

"66 In Integrated Trolley Management, Basten AJA (with whom both Ward P and Payne JA agreed) explained at [49] that the 'test' identified in UNSW Global and in [42] and [46] of E Group is to be approached as follows:

'That language requires the identification of (i) the work to be done by persons who provide the services to a client and (ii) the nature and ordinary conduct of the client's business. It is the relationship between the two which determines the application of s 37(1) in a particular case.'

67 To like effect, see comments by Payne JA at [7].

68 Some sense of the kind of relationship to which their Honours were referring is to be gleaned from what Basten AJA said at [86]. His Honour said:

'In addressing the application of the statutory test, as explained in UNSW Global and accepted by this Court in E Group Security, the Chief Commissioner emphasised that the individuals who worked for the client should do so in much the same way as would an employee of the client. That meant that the business would involve work having a degree of regularity and continuity, and where the nature of the work was to a significant degree under the control and direction of the client. So long as the qualifiers are maintained, this approach should be accepted.'

69 There are strong indications in the reasons of Basten AJA in Integrated Trolley Management that it is only where the relevant relationship can be identified in the terms of the contract itself that the contract will be within the statutory definition. At [97], his Honour said that it was 'arguably misconceived' to rely on matters of actual practice extraneous to the contract in determining whether a contract was an employment agency contract. See also his Honour's observations about the centrality of the terms of the contract at [99]. At [111] his Honour said:

'For the reasons given above, the appeal must be upheld and the assessments of the Chief Commissioner reinstated. The following points may be made in summary form in support of that conclusion. First, the application of s 37 must be assessed by reference to the terms of the employment agency contract relied upon by the Chief Commissioner as the basis of the assessment under challenge. In principle, that will be the agreement between the employment agent and its client. Generally, the actual operation of the agreement, including arrangements between the employment agent and its service providers and between the service providers and the persons performing the work will not form a necessary part of the analysis, and will provide little guidance as to the characterisation of the employment agency contract. The primary judge was correct to focus upon an objective analysis of the contract, although he looked to the wrong contractual relationship.'

70 I do not understand what Basten AJA said in these paragraphs to stand for the proposition that the Court may only have regard to the terms of the contract or arrangement between the putative employment agent and its client in determining the s 37 question. Apart from anything else, his Honour accepted at [112] that a consideration of context and the nature of the client's business may play a role in the analysis. However, I note the general caution expressed by all members of the Court in Integrated Trolley Management about attempting to apply the statute by reference to indicia derived from other cases: [2], [3] (Ward P), [8] (Payne JA), [40]-[54], [113] (Basten AJA)."

1. Justice Hmelnitsky observed that the plaintiffs' case "was largely framed by reference to what was said in ITM about the need to identify such a relationship from the terms of the contract itself" (at [71]). Justice Hmelnitsky stated at [73]:

"73 The indicia to which the plaintiffs were referring were those drawn from the authorities, especially Integrated Trolley Management. The plaintiffs did not fall into the trap of treating the presence or absence of indicia as being conclusive of the statutory question. They took care to submit that it was necessary to hew closely to the language of the section...."

1. Importantly, Hmelnitsky J stated that "treating the presence or absence of indicia as being conclusive of the statutory question" is a "trap": SKG Cleaning Services at [73].
2. Justice Hmelnitsky rejected the plaintiffs' submission that a relevant factor was that their clients were not commercial cleaning businesses. His Honour found (at [91]):

"It is not to the point that none of the clients was itself a commercial cleaning business. A service may be provided 'in and for' a client's business even if the service is not of the kind that the client offers as part of its revenue earning or 'core' services: Bayton Cleaning Company Pty Ltd v Chief Cmr of State Revenue (NSW) [2019] NSWSC 657; (2019) 109 ATR 879 at [104] (Ward CJ in Eq)."

1. Justice Hmelnitsky noted Basten AJA's comment in ITM at [54] that "the characterisation of cleaning and security services as otherwise than services provided in and for the conduct of the client's business is suggestive of error", and explained (at [93]) that:

"Although I do not understand his Honour to have been saying categorically that contracts to provide cleaning and security services will always be employment agency contracts, his Honour's comment does in my respectful opinion at least reflect that it is usually very easy to discern the relevant relationship between the ordinary conduct of a client's business, on the one hand, and the everyday cleaning services which that business has contracted to acquire, on the other."

1. Justice Hmelnitsky rejected the plaintiffs' submission that the regularity and continuity of the cleaning services was a neutral factor, and found that "these are circumstances that tend to demonstrate the closeness of the relationship between cleaning services, on the one hand, and the ordinary conduct of the business that requires them, on the other": SKG Cleaning Services at [92]. Justice Hmelnitsky followed the approach of Basten AJA's at [86] of ITM, finding that:

"97 ...That approach involves an assessment of matters such as the regularity and continuity of the work and the degree to which the 'nature of the work' is under the 'control and direction of the client'. In the present case, the contracts do have these features. They are for the provision of regular and continuous services, the nature of which is to a significant degree under the control and direction of the client.

98 It follows that even those contracts said to contain no indicia capable of bringing the contract within the scope of s 37 are employment agency contracts within the meaning of that section."

1. In SKG Cleaning Services at [99], it was noted that regularity and continuity, and control of the client over the workers, were contained in the provisions of the contract.

1. In summary, the approach under ITM is to identify:

(1) by reference to the terms of the contract between the putative employment agent and the client, the work to be done by the persons who provide the services to a client; and

(2) the nature of the ordinary conduct of the client's business.

1. It is then necessary to perform a third step. It is the relationship between the work to be done (identified in step 1) and the nature of the client's business (identified in step 2) that determines whether the services are provided "in and for" the conduct of the client's business. This is the characterisation exercise that is undertaken to determine if the putative employment agency agreement is indeed an employment agency agreement as contemplated by s 37 of the Payroll Tax Act (step 3).
2. In performing the characterisation exercise, reference to the terms of the employment agency contract must be firmly kept in mind. Generally, the practical operation of the contract will not form a necessary part of the analysis. A focus upon an objective analysis of the contract is appropriate. Recourse to indicia which were convincing in other cases, either for or against the satisfaction of the 'in and for' test, is rarely useful.

How is the characterisation exercise to be performed?

1. We are satisfied that, despite heavy caveats, a fact-sensitive analysis was not entirely rejected in ITM. Whilst an approach, post ITM, may be expected to focus on factors (as identified from the contract itself) of regularity and continuity of services and control, there are sufficient words of qualification throughout the reasons for decision of Justice Basten that it cannot be said that ITM entirely rejects or renounces an approach from a wider lens.
2. Further, we do not consider that the concurring reasons of Ward P and Payne JA are consistent with ITM rejecting any approach merely because it strays from a tight focus on factors (as identified from the contract itself) of regularity and continuity of services and control. However, an analysis that goes beyond analysis of the contractual arrangements and nature of the client's business will, mostly, not be necessary: Basten AJA at [112].
3. Certainly, the following cautionary approach is now warranted:

(1) Blindly following indicia found to be relevant in other cases is to be avoided: Ward P at [2]; Payne JA at [8]; Basten AJA at [40], [113].

(2) Remaining focussed on the objective terms of the putative employment agency contract is encouraged: Basten AJA at [111].

(3) Replacing the statutory test with previous judicial glosses or restatements of the statutory test is to be avoided. This caution extends to "using the term 'integrated into' in relation to the client's business": at [98].

1. So long as these qualifiers are kept in mind, considering the degree of regularity and continuity of the services and whether the nature of the work was to a significant degree under the control or direction of the client are relevant inquiries: at [86].
2. Further, to consider whether the client may have conducted its business by employing workers directly may be a valuable line of inquiry, as it serves to emphasise the importance of the degree of control and the regularity and continuity of the service: at [89]-[91]. Lastly, the commercial context may be relevant to characterising the obligations under the contract: at [62].
3. The foregoing demonstrates that whilst a cautionary approach is to be adopted, it is not simply a case that, since ITM, asking whether the services were "integrated" into the client's business or using a fact sensitive analysis is always and inevitably wrong.

1. The Tribunal identified that the principles regarding the "in and for" test are as follows (Decision at [35]-[38]) (original emphasis):

"Principles concerning the 'in and for' test

35 White J, in UNSW Global at [63]-[65] said:

63. Whether the worker is to be characterised as an employee or a contractor, the employment agency contract provisions were intended to apply to cases where the employment agent provided individuals who would comprise, or who would be added to, the workforce of the client for the conduct of the client's business.

...

64. One of the hallmarks of an independent contractor is that he or she carries on his or her own business. But sometimes that is done, or is said to be done, by the individual, in substance, working for the client in the same way as would an employee of the client. Where the services of the individual are provided through the intermediary, that is, the employment agent, to help the client conduct its business in the same way, or much the same way, as it would do through an employee, then the arrangement is within the intended scope of the section.

65. But where the services, although provided for the client's benefit, are not provided by the service provider working in the client's business, the arrangement does not fall within the intended scope of the provision....

(my emphasis]

36 Whether the services of a service provider are procured "for" the client, requires consideration of whether the service provider is sufficiently integrated into the clients business to be seen as an addition to the client's workforce, and works in much the same way as the clients employees: Southern Cross Group Services Pty Limited v Chief Commissioner of State Revenue (2019) 108 ATR 16 [60]; HRC Hotel Services Pty limited v The Chief Commissioner of State Revenue [2018] NSWSC 820; (2018) 108 ATR 84 at 116 [153].

37 Nova, in its written submissions makes the following distinction between the concept of being integrated and the concept of being integral, with which I agree. Nova contends: the correct test is whether the service provider is integrated into the client's workforce, not whether the services performed by the service provider are integral to the clients business, in the sense that the business could not operate without those services. This appears to follow from the reasoning of Ward P in HRC at 116 [153], in considering the various factors pointing to the contract housekeeping staff being 'integrated' into the client's workforce. Her Honour found that the factors indicated that it would not be apparent to an ordinary hotel guest that there was a distinction between the ... service providers and the employed staff. This is also consistent with her Honour's findings in E Group Security at [328]-[329], the ITM Appeal at [3] and Senior Member Dunn in Infinity Security Group Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCATAD 28 at [124].

1. The Tribunal found that ITM was "specific to trolley collectors and can be distinguished on its facts" (Decision at [194(3)]). The Tribunal rejected the Chief Commissioner's submission that "characterising security services as not 'in and for' client's business 'is suggestive of error' because of the findings made by Basten AJA in the ITM Appeal at [54]". The Tribunal applied the test in E Group Security of "integrated into the workforce" (Decision at [193]). The Tribunal found that the test from E Group Security (SC) had "not been overturned by the Court of Appeal in ITM Appeal and [ITM] should not be followed in the way as submitted by the Chief Commissioner" (Decision at [192]).

1. The chapeau to Ground 1 makes plain that the alleged error is that the Tribunal applied the wrong issue or legal principle or applied the wrong legal test required under s 37 of the Payroll Tax Act. As a starting point we accept that the Tribunal erred in failing to appreciate that ITM indeed has general application. However, we do not accept that errors on the particularised questions of law can be made out merely because the Tribunal, wrongly, found ITM distinguishable on its facts and not of general application.
2. The concept of "integrated" used by the Tribunal was brought in aid of answering the statutory question, as explained by Ward P in ITM at [3], rather than in substitution of the statutory question. As explained by the Tribunal, "integrated into the clients business" meant that they could be "seen as an addition to the client's workforce, and works in much the same way as the clients employee". This is similar to the proposition, which was accepted in ITM at [86], to the effect that to satisfy the "in and for" test, "the individuals who worked for the client should do so in much the same way as would an employee of the client." It is to the question of whether the individual could be said to be working for the client in much the same way as would an employee that (subject to the qualifiers mentioned by Basten AJA) factors such as regularity and continuity of services and control are directed: ITM at [86]. This is discussed further under Ground 1(b).
3. Further, we do not accept that Justice Basten (at [54] of I_TM_) categorically stated a rule that "the characterisation of ... security services as otherwise than services provided in and for the conduct of the client's business is [always in] error." Even if it to do so is "suggestive of" error. His Honour also said (at [54]), in this regard, that "the terms of the employment agency contract must, in each case, be addressed"; thus indicating that there is no universal rule.
4. We now turn to consider the particulars of Ground 1, as identified in sub-grounds (a) to (e), taking these one at a time.

1. This ground singles out that the Tribunal failed to apply the correct test which it is contended requires an assessment of: (1) regularity and continuity; and (2) control.
2. We accept that under the ITM approach these factors were highlighted as being capable of meaningfully contributing to the characterisation of the relationship between the services provided and the conduct of the client's business: ITM at [86]. The appellant styles these as "essential criteria". Assuming, without deciding, that absence of consideration of these factors would reveal error in the approach, the Tribunal did not ignore these factors.
3. At [194(2)] the Tribunal discussed how security guards were rostered on at the clients' venues and aspects of control to find as follows:

"Nova was responsible for rostering its own security guards at the venue in consultation with its clients. I do not consider the client's consultation about staffing with Nova, or where a contract required a minimum level of guards, a factor which removes the control or direction of security guards away from Nova. Each of Nova's business clients' witnesses who gave evidence, which I accept, leads to the conclusion that, at least in a practical sense, Nova was responsible for the routine and regular rostering of security guards and services. This is despite in some circumstances where the agreement between Nova and its business clients' prescribed the number of guards (for example Opera Bar). Nova retained the discretion to provide the relevant number of guards at the venue in accordance with specialised training and statutory obligations (where relevant under the SIA), and to ensure compliance with the Liquor Act."

1. The Tribunal also considered the degree of control exercised by the clients over the guards' performance of their security duties, stating (at [194(6)]):

"... I accept and find that the clients did have some input into the scope of services to be provided and the Standard Operating Procedures document. This included input into the security management plan. The security guards were trained by Nova, rostered on by Nova, took their instructions from and were supervised by either their Nova supervisor or Nova head office. I have considered the various three agreements between Nova and Quay Bar, Nova and Opera Bar and Nova and UOW Pulse Ltd. While a number of clauses in the written agreements do provide that the guards while on-site included (report to the manager/licensee to obtain a briefing, to fill in a time sheet initialled by the licensee/manager, be suitably dressed, wear a uniform (not venue branded) prevent and remove intoxicated customers from the venue, monitor patrons behaviour, act under the client's instruction and collect rubbish and glass), the evidence was clear that, generally Nova did not. It has been established that business clients staff do and have made requests of the guards about the removal of customers from a venue. However, I accept Nova's submission despite there being some degree of direction about how customers are managed, it remained in the absolute discretion of the security guards to decide how a customer was to be managed and evicted from venue premises so as to ensure compliance with the SIA (and the Liquor Act). Each of the business clients gave consistent evidence in this regard, and I have accepted that evidence. ..."

1. At [194(9)], the Tribunal considered whether the services provided to the clients by Nova were regular, noting:

"Each venues requirement for regularity of security services varied. Some venues did have the same guards and required a similar number each week, such as the Opera bar. However, some did not and the requirement varied. Where Nova would at times put guards at the same venue for continuity, this was not the same for each venue."

"Balancing all of the factors, while I have found Nova was performing integral services to its business clients, I find the guards were not integrated into the clients' businesses nor effectively added to their workforces. After reviewing the detail in each of the three agreements between Nova and its business clients, I find that Nova was not providing services "in and for" the conduct of the clients' businesses. I find that the arrangements between Nova and its business clients were not employment agency contracts within s 37 of the PTA."

1. Even assuming the factors of regularity, continuity and control to be "essential", the Tribunal did not err by ignoring them. The Tribunal clearly considered the regularity and continuity of the services and the degree of control exercised by the clients.
2. To the extent that the appellant's argument is that regularity and continuity of services and control were just factors considered and "balanced" by the Tribunal, when they should have been the primary or only focus of the analysis, then for reasons already explained, ITM does not go so far as to say that regularity and continuity of services and control are the only factors that can be considered. Without straying beyond a pure question of law, we discern no error merely in approaching the statutory question from a wider lens than by just looking at these "essential" factors.
3. As to the contention that these are the "primary" factors and that insufficient weight was given to these "essential" factors, whether the Tribunal erred cannot be determined without descending into the merits of this case. To determine whether the "essential" factors were given insufficient weight requires consideration of each factor in the context of the case. Here the issue is compounded by the fact that the Tribunal, as the extracts demonstrate, found that:

(1) Nova retained the discretion to provide the relevant number of guards at the venue in accordance with specialised training and statutory obligations (where relevant under the Security Industry Act), and to ensure compliance with the Liquor Act 2007 (NSW): at [194(2)].

(2) [I]t remained in the absolute discretion of the security guards to decide how a customer was to be managed and evicted from venue premises so as to ensure compliance with the Security Industry Act (and the Liquor Act)" [194(6)]

(3) Regularity and continuity of services varied: at [194(9)].

1. With respect to the findings in the previous paragraph, there is a hurdle to considering the ground of appeal as a question of law in that it is not apparent from the Decision what level of regularity and continuity was accepted by the Tribunal. Further, contrary to the submissions of the Commissioner, the Tribunal found that the respondent retained a significant amount of control over the performance of the services. To consider whether the Tribunal improperly weighed the factors depends on the strength of the factor. To extend the ground to consider whether the factors were given insufficient weight therefore requires leave to appeal.
2. For the reasons set out above regarding the chapeau to Ground 1, ITM does not say that regularity and continuity of services and control are the only factors a Tribunal may consider. Weight given to various factors is not something we should consider on an appeal on a question of law as it involves a mixed question of fact and law.
3. To the extent that the appellant contends that some factors are always immaterial and reflect error in approach, then that is the subject of Grounds 1(d) and (e).
4. The appellant also submits, having regard to what the Tribunal said at [194(9)], that the Tribunal misconstrued the concept of continuity as "limited to continuity of individual personnel" rather than "continuity of the services". However, the reference, in that paragraph, to the circumstance that there were in some instances "guards at the same venue for continuity" does not reflect a misconception. The paragraph refers to numbers of guards and the "number each week" and that "the requirement varied"; indicating that the Tribunal did not erroneously confine the concept of regularity or continuity to personnel rather than services.
5. Ground 1(a) is not made out.

1. This ground focuses on the language used by the Tribunal at [36] and [193] of "integrated into", whereby the Tribunal considered whether the workers were "sufficiently integrated into the client's business to be seen as an addition to the client's workforce" and work "in much the same way as the client's employees". The appellant submits that the Tribunal has not applied the correct statutory test and instead substituted a test of integration. Further, the appellant submits that resort to the concept of "integrated into" led the Tribunal to consider immaterial factors such as uniforms and customer perceptions and the overlap with the client's employees, which reveals the error in using the language of "integrated".
2. We have already touched on this in relation to the chapeau to Ground 1; what we perceive to be the overarching issue that underlies Ground 1. It is appropriate to make a few additional points here.
3. The appellant relies on [98] of ITM, in which Basten AJA highlighted the "inappropriateness of using the term 'integrated into'":

"Suggestions in earlier cases that wearing a distinctive uniform was a factor demonstrating that the persons were not 'integrated into' the client's workforce tend to demonstrate the inappropriateness of using the term 'integrated into' in relation to a client's business. As already noted, the purpose of the employment agency provisions is to impose liability for payroll tax with respect to payments to persons who are not employees. There is no explanation in the cases as to why that purpose is not properly served where it is made clear to third parties that the persons are not employees. That they are not employees of the client is a condition of the application of Pt 3, Div 8; an express indication of that fact can hardly be an indicator of its non-application. In short, the wearing of a distinctive uniform is an example of an indicium developed in the cases which finds no support in the statutory language or the statutory purpose, and should be avoided."

1. It is not apparent that the comments were intended to mean that use of the phrase "integrated into" inexorably reveals error, as opposed to highlighting the risk of diverting attention from the statutory task. To this end, Basten AJA had earlier said at [43] (footnotes omitted):

"Furthermore, it may be noted that in each new case there is a tendency for the trial judge to address the statutory test in slightly different language, including by asking, as in the passage set out above, whether the procured staff formed 'an addition to' the client's workforce, whether their functions were 'integral to' the client's business, whether their functions constituted a 'core', or 'ancillary' function to the client's business and whether they were 'integrated into' the client's business. There is no error revealed by the use of different terms which do not replace the statutory language and can usually be understood as a description of what actually occurred in the particular circumstances of the case."

1. The Commissioner alleges error by the Tribunal in [193] of the Decision, in which the Tribunal stated (emphasis in original):

"In considering Nova's business clients, in the words of Ward P in E Group at [333] 'While they provide an integral function for the clients, they are not an addition in the sense of being integrated into the workforce.' I have considered the Chief Commissioner's argument about the ITM Appeal [98] and [3] finding that the language 'integrated into' the clients business is inappropriate. I reject the contention that 'integrated into' is inappropriate language to adopt and apply Ward P's comments at [3]. That is 'that this was used in the sense of the question whether the workers were an addition to the work force of the employment agent's client (i.e., whether they were performing services in and for the conduct of the client's business) and was not intended as a substitution for or gloss on the statutory test'."

1. No error of law is demonstrated in that paragraph. The Tribunal clearly considered Basten AJA's comments in ITM at [98]. The Tribunal expressly recognised that the concept "integrated into" cannot displace the statutory question. The Tribunal's approach was expressed in a way which coincides with what was said by Ward P in E Group Security (SC) at [323], which is in turn consistent with what her Honour said in ITM at [3].
2. At [194(8)] the Tribunal said (emphasis in original):

"While some of the duties of a security guard and employee of the client may overlap, the predominate duty of the security guard is the provision of security services which is heavily regulated by the SIA and cannot be said to be in the client's control. As Ward P said in E Group Security at [323], the "in and for" test "requires an analysis as to whether the workers in question were integrated into the client's business (or added in effect to its workforce), not whether the workers or the provision of their services were integral or essential (as opposed to ancillary) to the client's business or workforce; ..."

I find that the function of the guards was to carry out security services. The services were integral to the client's business but the guards were not integrated into the that business. This is so, even after reviewing the relevant agreements between Nova and its business clients."

1. The question was asked in aid of determining "whether they were performing services in and for the conduct of the client's business". The Tribunal was not using the formulation "as a substitution for" the statutory test which the Tribunal clearly enunciated in the penultimate sentence of [196] and no error is demonstrated.
2. The Tribunal's reasons must be read in their entirety. In substance, if not in form, the Tribunal used the phrase "integrated into" as a way of grappling with the third step of the process set down in ITM.
3. Further, it is plain that the Tribunal was using the expression "integrated into" in contradistinction to "integral to" the client's business, in response to submissions. The respondent had put the proposition that even if the services were integral in the sense of important in the client's businesses, that this was not the issue - which is undoubtedly correct and was accepted by the Tribunal.
4. Whilst the criticism of resorting to judicial glosses in ITM would lead one to expect that Tribunals will be careful to apply the express statutory language in future, here, no error is established by the use of the expression "integrated". We do not consider that this demonstrates that the Tribunal did not have the correct statutory test firmly in mind.
5. Ground 1(b) is not made out.

1. This ground focusses on the Tribunal's fact sensitive analysis which is said to have centred on the practical operation of the contracts. As discussed above, in ITM, the utility of looking at the practical application of the contract was doubted. Tribunals in future will save a lot of time by refraining from such an analysis, without risking falling into error. However, it does not necessarily follow that consideration of the practical operation of aspects of the relevant contractual arrangement will lead to error on a question of law.
2. The Tribunal indeed applied a fact-sensitive analysis, based on nine factors described as "relevant factors": Decision at [194]. Nevertheless, the Tribunal did not ignore the objective terms of the contract. Many of the terms were highlighted in the appellant's submissions at first instance and expressly set out in the Decision. Then under the heading "Consideration" there are to be found various references to the "contract" and "the agreement". It is apparent that the Tribunal had genuine regard to the terms of the contract. For instance, it is said as follows:

(1) "I accept that it is relevant to take into consideration the relevant contractual documents": at [192].

(2) "Where a contract required a minimum level of guards": at [194(2)].

(3) "The agreement between Nova and its business clients prescribed the number of guards": at [194(2)].

(4) "I have considered the various three agreements": at [194(6)].

(5) "Aa number of clauses in the written agreements" (which is then followed by a list of duties taken from the contracts): at [194(6)].

(6) "Even after reviewing the provisions in the various agreements": at [194(6)].

1. Despite the Tribunal considering the practical operation of the contracts, after referring to some of the terms of the agreements between Nova and its clients in [194], the Tribunal concluded that the services were not provided "in and for" the conduct of the client's business: Decision at [196]. It cannot be said that the terms of the contracts were not given serious consideration.
2. The appellant submits that considering the objective terms of the contract as only one factor among other factors demonstrates a misdirection. The Commissioner submits that only where the written terms of the contracts are silent on a point would it be permissible to look at the practical operation of the contracts. The Commissioner contended that, here, it is permissible to look at the operation of how guards are rostered, as some contracts are silent on regularity and continuity. However, we do not read ITM as saying that factors outside the written terms of the contract are prohibited from consideration unless the written terms are silent on that issue. Accordingly, we reject the contention that ITM compels a Tribunal to stay securely within the written terms of the contracts unless or until a contract is silent on an issue; though, that would be the prudent course, at least without specifying the reason to stray beyond the contract.
3. It follows that we do not discern error on a question of law arising from the fact alone that the Tribunal did not eschew consideration of the practical operation of the contracts.
4. Here, the Decision reveals that there does not appear to have been any real dispute about the practical operation of the contracts. The evidence of the lay witnesses was, in all but one case, not contradicted. One witness (a current director of the respondent) was cross examined. His evidence traverses several issues, including the respondent's training and what is required for a guard to obtain a security licence. He was cross examined about the level of control the guards had at a particular event and the Tribunal found as follows (at [115]):

"While Nova guards were involved in consulting the client's management about some things such as when a person was to be evicted from the event, I find that the Nova security guards relied upon their skills, training and expertise in how they carried out their role. This is because the venue management nor its staff tell or instruct the guards, for example, how to check ID's, how to do RSA checks, and how to remove someone from the venue. In undertaking these tasks, I accept Mr Wall's evidence that the guards rely upon their specialised training for which they hold a security licence. If in any doubt, I accept that the guards defer to Nova management and their SOP's."

1. No appeal ground expressly seeks to disturb this finding. At [194(6)] (as mentioned above,) the Tribunal makes other findings about the level of control over the guards in the performance of their security functions. The appellant seeks to disturb these findings, indirectly, by overturning the decision on a principled basis; but this shows the interconnectedness between the findings made and the appeal ground.
2. Ultimately, to determine whether the Tribunal was unduly focussed on matters outside the written terms of the contracts invites a consideration of the merits. We discern no error on a question of law.
3. Ground 1(c) is not made out.

1. This ground focuses on specific factors considered by the Tribunal: uniforms, interaction with customers, access to staff facilities, equipment and independence of security services. We have already explained that in order to avoid delving into mixed questions of fact and law we must treat this ground on an all or nothing basis - that is to say, a pure question of law would require the ground to be put on the basis that it is always a mistake to look at uniforms or the other factors.
2. It is accepted that in ITM, statements were made which suggest that looking at factors such as uniforms and staff facilities is of little to no assistance: for example, Payne JA at [14]. However, we do not consider that ITM put the bar so high that it must be reflective of error to consider these factors (see our discussion at [55]-[65] above).
3. Notwithstanding that we accept it might be a rare case where the requirement to wear a uniform says something material to the characterisation exercise, conceivably there may be cases where a uniform also has some other function, like protective gear. Here, the uniform allowed the guard to display their security licence (Decision at [194(3)]). It is not inconceivable that, in some cases, the requirement to wear a uniform would speak to the control over how the services are performed. For instance, in distinguishing the guards so that they can more visibly perform their security functions.
4. As to "interaction", whilst it would be an error to assume that only workers who interact with a client's staff or their customers are acting in and for a client's business, again it is conceivable that no or little interaction might speak to independence; which would tend against the Commissioner: see for example ITM at [89]. It is not a factor that compels a conclusion that there has been error.
5. As to "access to staff facilities", this was considered by the Tribunal along with whether the workers were provided with free food or beverages or discounts which is, seemingly, brought in aid of considering whether the workers were treated equitably with employees. The appellant contends it proves that the Tribunal was applying a test of "integration" instead of answering the statutory question. For the reasons already advanced, we have rejected the contention that the Tribunal was not applying the statutory test (despite referring to integration) and this does not alter our view. These factors are not prohibited from consideration and whether they were given too much weight is a matter for determination on the merits, for which leave has neither been sought nor granted.
6. As to equipment, the appellant contends that this was identified as an irrelevant (or immaterial) factor in ITM; however, the error identified by Basten AJA in ITM stemmed from the trial judge's focus on the contract between Trolley Management and the subcontractors, and not Trolley Management and the client: ITM at [80]. Justice Basten noted that an issue might have arisen regarding the amount payable for wages, as the amounts paid to workers included an amount for the cost of equipment. The relevance of the equipment to the question of whether the services were provided in and for a client's business were not persuasive to Payne JA: at [14(10)]. However, this is ultimately an issue that must be determined on its merits and not on question of law.
7. Ground 1(d) therefore is not made out.

1. This ground focusses on treating on-site performance as immaterial because it reflects "the nature" of the services. The appellant contends that the Tribunal erred in law by failing to take this consideration into account. We note that in SKG at [92] it was said that factors ought not be ignored or treated as neutral factors simply because they are "in the very nature" of the services provided. Nevertheless, we are not satisfied that location must be treated as material in all cases.
2. The appellant submitted that where services are provided on site, this might make the worker more amenable to client control. This might readily be accepted, at least at a practical level. Nevertheless, in ITM, Basten AJA said at [74] that location may be material "in some contexts", not all.
3. In any event, we do not read the Decision as treating the on-site performance of security services as being "immaterial". It is the first of the factors referred to at [194(1)]. The Tribunal noted that it is "the nature of the provision of security services" that they be performed on-site. This suggests that the factor was given some weight.
4. We therefore do not discern error on a question of law and resist considering whether too little weight was given to it, as that would require us to consider the merits or a mixed question of fact and law.
5. Ground 1(e) is not made out.

1. When regard is had to how the Tribunal determined the answer to the statutory question of whether the services were performed in and for the conduct of the clients' businesses, the particular errors on questions of law particularised in Ground 1 are not made out.
2. We nevertheless accept that the Tribunal's determination that the security services were not provided in and for any client's business runs counter to a generalised or impressionistic response to the statutory question because, as the Tribunal found, at least with respect to some clients, there was:

(1) regularity and continuity of the security services: at [194(9)]; and

(2) some control by the clients provided for in the contracts: see for example as referred to at [194(2), (6)].

1. Each of these factors tends to demonstrate the bearing that the services had on the conduct of a client's business and the closeness of the relationship between the provision of security services and the ordinary conduct of a client's business as operator of licenced venues.
2. By not approaching the statutory question in the way identified in ITM, this left the Decision open to question. As noted by Basten AJA at [54] "the characterisation of ... security services as otherwise than services provided in and for the conduct of the client's business is suggestive error." Nevertheless, no error on a specified question of law has been demonstrated.
3. Ground 1 is dismissed.

1. This ground concerns whether the Tribunal misconstrued the Security Industry Act by interpreting it as precluding clients from exercising a significant degree of control over the security services provided through a licensed provider and precluding the services from being performed in and for the conduct of the client's business.
2. The appellant points to the following passages of the Decision.
3. The Tribunal said at [194(8)]:

"While some of the duties of a security guard and employee of the client may overlap, the predominate duty of the security guard is the provision of security services which is heavily regulated by the SIA and cannot be said to be in the client's control."

"I adopt and apply Senior Member Dunn's analysis of the SIA at [120(7)]:

Under the Security Industry Act individuals carrying out security activities must be employed by the holder of a Master Licence (or be self-employed and be the holder of a Master Licence). While there was no evidence that the guards in fact satisfied those criteria, it was not in dispute that Infinity's clients did not hold Master Licences and their staff were not trained or licensed to provide security services. While the exemption under the Security Industry Regulation allowed licensed venues to retain the ability to perform activities related to excluding persons from licensed premises, I agree that as, a matter of law, the security guards could not actually have been added to the clients' workforces. However, (while I do not accept the Respondent's construction of s 10(3) of the Security Industry Act) I agree with the Respondent that that does not determine the question as to whether as a matter of fact the guards were added to the workforce of the clients for the conduct of their businesses."

1. The appellant submits that the Tribunal's statement that security services are "heavily regulated by the Security Industry Act and cannot be said to be in the client's control" is "wrong in law". Further, so it is submitted, the Tribunal did not analyse how the contractual provisions giving clients control over the security services were inconsistent with the Security Industry Act , the Tribunal having earlier accepted that a client's direction might not necessarily involve a breach of the legislation at [191] of the Decision.
2. We note that the Tribunal said at [191]:

"When considering the interaction between possible breaches of the legislative regime, for example the arguments raised by both parties concerning the Liquor Act and SIA, her Honour in E Group Security at [325] said, which I adopt:

...

However, a contractual ability to give (or obligation to comply with) a direction would not seem to me necessarily to involve any breach of the legislation and nor would a refusal (if based on the security industry constraints) to accede to such a direction necessarily involve a breach of contract (since the contractual obligation to comply with such a direction could surely only be with a direction that was lawful - and hence, it would seem to me that there would be no contractual obligation to comply with a direction that would or might place E Group Security in breach of its security licence) (see by way of analogy the discussion as to lawful directions in a master/servant relationship in Tullett Prebon (Australia) Pty Ltd v Purcell [2009] NSWSC 1079 at [35]- [36] at first instance, for example). On the one hand, if, looked at pragmatically there would be no enforceable obligation to comply with directions that might place E Group Security in breach of its security licence, then a contractual provision reserving to the client the ability to give directions takes the matter no further because it says nothing about what in practice occurs in the performance of the contract. On the other hand, the mere existence of the constraints imposed by the legislation (as E Group Security in submissions quite fairly conceded) would say nothing if those constraints were not in practice regularly observed."

1. The appellant submits that if clients can give directions to service providers that do not breach the Security Industry Act, then it follows "that significant control does not breach the SIA". The appellant submits that the Security Industry Act stipulates who must hold licences, not the degree of control clients can exercise over the licence holders.
2. The respondent submits that various provisions of the Security Industry Act point to the licensee maintaining control over the performance of the services. For instance, s 38(1) prohibits a licensee from delegating the carrying on of a security activity to a person who does not hold a licence. Section 29B(1) provides that the holder of a class 1 or class 2 licence must not carry on a security activity authorised by a licence unless the person is employed by a master licensee or is self-employed and the holder of a master licence. The respondent also points to the Explanatory Note to the Security Industry Bill 1997 (NSW) referring to the main feature of the proposed Act being to ensure "greater control over persons who work in the security industry". A licence holder is required to satisfy stringent "probity assessments and suitability criteria".
3. The appellant highlights that ss 10(3) and 29B(1) of the Security Industry Act merely prevent unlicensed persons from directly employing or supplying guards, but do not prevent a licensee from performing work "in and for" a client's business; nor do they preclude the client exercising significant control over the performance of those services. In keeping with the client's own obligations under the Liquor Act (ss 73(1), 73(4) and 77), the client must retain the ability to direct the security guards to remove disorderly or intoxicated patrons. When one focusses on control over the services and not the worker, which the appellant submits is apt, it can be seen that the clients retain control. To this end, the appellant relies on the decision of SKG Cleaning Services at [94]-[96]. Instances of control would include where and when the services were provided due to the exigencies of the client's business.
4. We accept that it is control of the services, not the workers, which is relevant to the 'in and for' test; recalling that s 37 of the Payroll Tax Act is concerned with the "services of a person". In ITM, both Payne JA and Basten AJA referred to control over services: at [12], Payne JA referred to "control over the activities of the workers" (and to similar effect at [14(7)]); and at [86], Basten AJA wrote of "the nature of the work" under the control and direction of the client. Additionally, in UNSW Global, White J used the phrase "control over how to undertake their engagement" (at [13]). Therefore, we accept that it cannot be said that the mere existence of the provisions in the Security Industry Act leads to the conclusion that the clients cannot control the performance of the services. Further, we accept that the obligations under the Liquor Act would be contrary to taking control away entirely from the client. Therefore, if the Tribunal indeed construed the Security Industry Act as precluding a finding that security guards could not be providing services "in and for" the conduct of a client's business then this would evidence error.
5. However, we are not satisfied that the Tribunal found that the provisions of the Security Industry Act meant that the services could not be controlled by the client nor that the existence of the Security Industry Act meant that the services could not be provided in and for the conduct of the client's business.
6. First, the Tribunal said at [194(8)] "the provision of security services which is heavily regulated by the SIA and cannot be said to be in the client's control" (our emphasis) and did not directly link the regulation by the Security Industry Act with the client's control by saying, for instance, "the provision of security services which is heavily regulated by the SIA and therefore cannot be said to be in the client's control" (our emphasis and change).
7. Second, what is said at [194(8)] must be read in light of what is said at [194(6)] (emphasis in original):

"I find that the clients did not have control over the guards in the performance of their security duties. I accept and find that the clients did have some input into the scope of services to be provided and the Standard Operating Procedures document. This included input into the security management plan. The security guards were trained by Nova, rostered on by Nova, took their instructions from and were supervised by either their Nova supervisor or Nova head office. I have considered the various three agreements between Nova and Quay Bar, Nova and Opera Bar and Nova and UOW Pulse Ltd. While a number of clauses in the written agreements do provide that the guards while on-site included (report to the manager/licensee to obtain a briefing, to fill in a time sheet initialled by the licensee/manager, be suitably dressed, wear a uniform (not venue branded) prevent and remove intoxicated customers from the venue, monitor patrons behaviour, act under the client's instruction and collect rubbish and glass), the evidence was clear that, generally Nova did not. It has been established that business clients staff do and have made requests of the guards about the removal of customers from a venue. However, I accept Nova's submission despite there being some degree of direction about how customers are managed, it remained in the absolute discretion of the security guards to decide how a customer was to be managed and evicted from venue premises so as to ensure compliance with the SIA (and the Liquor Act). Each of the business clients gave consistent evidence in this regard, and I have accepted that evidence. In making this finding I have also considered and applied the reasoning of Ward P in E Group Security at [326]: "Furthermore, let it be assumed that client participation in determining the parameters of an SOP (whether by way of suggestion or request) did occur from time to time (or can be said to have occurred by way of the setting or monitoring of performance to stipulated KPIs), I do not accept that this would necessarily amount to sufficient control or direction to warrant a conclusion that the security guards were integrated into the clients' workforce. There seems no doubt at a practical level that E Group Security personnel were required to perform their tasks at the client's premises subject to the direction and instruction of their E Group Security supervisors. In that regard, I accept the evidence of those responsible for supervision of the security operations at various of the clients' sites to the effect that, on the ground so to speak, the security guards were directed to comply with E Group Security's instructions and to report back to E Group Security. Responding to a request from a client (or answering a query from a customer of the client) does not change that.". Even after reviewing the provisions in the various agreements, I find that the ITM Appeal has not overturned this reasoning."

1. Seen in context, the Tribunal plainly had regard to the terms of the contract, but accepted that despite "the clients maintaining some degree of direction about how customers are managed, it remained in the absolute discretion of the security guards to decide how a customer was to be managed and evicted from venue premises so as to ensure compliance with the SIA (and the Liquor Act)".
2. To read the Tribunal as having said that the Security Industry Act led to the result puts too much weight on the words of the Tribunal at [194(8)] and is an example of scrutinising the reasons with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291; [1996] HCA 6; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77].
3. Contrary to the appellant's submissions, the Tribunal did not interpret the Security Industry Act as precluding control by the clients. The Tribunal's analysis is centred on the terms of the contract.
4. If there was an error in the result, it was not the product of an error on the questions of law specified in Ground 2. If the contention is that the Tribunal wrongly found the clients did not have sufficient control for the services to be said to be performed "in and for" the conduct of a client's business, then this is a dispute as to the facts as found. As with Ground 1, we decline to consider mixed questions of fact and law.
5. No error on the questions of law identified in Ground 2 is made out.

1. We have above identified above the appropriate approach to determining whether a contract is an employment agency contract, from ITM. That is to identify:

(1) by reference to the terms of the contract between the putative employment agent and the client, the work to be done by the persons who provide the services to a client; and

(2) the nature of the ordinary conduct of the client's business.

1. It is then necessary perform step 3: characterise the relationship between the work to be done (identified in step 1) and the nature of the client's business (identified in step 2).
2. In performing the characterisation exercise, the following is apt to keep in mind:

(1) An objective analysis of the contract is appropriate.

(2) The practical operation of the contract will, generally, not form a necessary part of the analysis. However, commercial context may be relevant to characterising the obligations under the contract.

(3) Recourse to indicia which were convincing in other cases is rarely useful.

(4) Remain focussed on what has come to be accepted as the relevant test, which is whether the services are provided in and for the conduct of the client's business, and do not be distracted by alternative expressions for it. As noted in UNSW Global at [64], the employment agency provisions were intended to capture services provided through an intermediary that were provided by an individual who would:

(a) comprise, or who would be added to, the workforce of the client; or

(b) help the client conduct its business in the same way, or much the same way, as it would do through an employee.

(5) Considering the degree of regularity and continuity of the services and whether the nature of the work was to a significant degree under the control or direction of the client are relevant inquiries.

(6) Considering whether the client may have conducted its business by employing workers directly may be a valuable line of inquiry.

1. In summary, with respect to Ground 1, no error on a question of law has been established, as ITM rather than "shifting the landscape" or rejecting the old approach as inexorably leading to a wrong result, articulates a preferred approach and highlights "traps" under the "old approach". Whilst using an approach that was not tightly aligned to ITM has led to this appeal, no errors on the tightly framed questions of law which were identified by the appellant (which we highlight is an appropriate approach on an appeal on a question of law) has been made out.
2. With respect to Ground 2, the Tribunal, despite using some language which was open to be interpreted as the appellant did, did not misinterpret the Security Industry Act as precluding the clients having control.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.