17 July 2007 and again required the partnership to provide sufficient manpower and to have in place workers compensation and public liability insurance along with other obligations. 24. A document suggests that construction work at the site in Cecil Street Gordon commenced on 25 June 2007.[13] I assume that the work undertaken by the partnership commenced after the date of the first two contracts dated 17 July 2007. 25. The applicant statement evidence as set out in a statement dated 24 August 2008 is that on 3 September 2007 at around 11.00am- 12.00noon he was working on the site at Cecil Street Gordon carrying out his duties doing formwork when he stood up and struck his back on a metal bar. 26. The applicant further stated that he felt immediate pain, was unable to continue working and was taken to see his doctor at Granville. 27. The applicant's version of events is that he was told to rest and was eventually hospitalised at Concord Hospital from 12 September 2007 to 18 September 2007 and came under the care of Dr Noel Dan neurosurgeon. 28. In the statement dated 25 August 2008 the applicant also stated that as at the date of the statement he had not been certified fit for any duties since 3 September 2007 and had not been able to work since then and had not earned any money since the day of the accident.[14] 29. It is the applicant's allegation in these proceedings that at the time of the injury on

3 September 2007 he was a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) employed by the respondent. 30. Despite that assertion in these proceedings the applicant made a claim for workers compensation benefits by way of a notice of injury dated 29 October 2007 nominating as his employer M & L Farah.[15] 31. The notice of injury form was signed on behalf of the employer by "L. Farah" the applicant's wife. 32. An "Employer's Report of Injury" form was completed the same day, identifying the employer as M & L Farah and was signed by Laurice Farah who described herself in the "Employer Declaration" section of the form as Laurice Farah and her position as "Partner".[16] 33. The "Employer's Report of Injury" stated that the applicant was a full time permanent employee who worked eight hours a day and had been so employed since 19 June 2007.[17] 34. Also on 29 October 2007 an "NSW Early Report of Injury" form was completed and was signed by the applicant wherein he was identified as the worker and the employer was identified as M & L Farah.[18] 35. During the period following the applicant's injury on 3 September 2007 the partnership entered into a further subcontract agreement dated 21 September 2007 with the respondent to perform further work at Cecil Street Gordon for a total sub-contract sum of $746,000 plus GST being certain formwork, reo fix and concreting work.[19] 36. The subcontract agreement of 21 September 2007 is a much more detailed document than the earlier contracts in time between the partnership and the respondent but still required as part of the terms workers compensation and public liability insurance and to have sufficient manpower on site to perform the work under the agreement. 37. It appears that following signing the contract on 21 September 2007 the partnership carried out work pursuant to the terms of same. 38. There is some indication that work to the value of approximately $357,498.70 was carried out by the partnership pursuant to the terms of the contract dated 21 September 2007 (see Formwork/Reo and Concrete Payment Schedule at pages 252-253 of the Application which appear to be signed by the applicant and identify payments made in respect of the items in the schedule). 39. On or about 5 October 2007 an entity being Milco Constructions Pty Ltd was incorporated by the applicant who stated that he was the sole director of same. 40. The reason for the incorporation of Milco Constructions Pty Ltd is somewhat unclear with the applicant having initially stated that it was done on advice given to him[20] without stating by whom the advice was given nor the reason for same but at later date saying that Danny Nicholas had required the change in business structure.[21] 41. On 30 November 2007 there appears to have been an assignment of the rights and obligations under the subcontract agreements referred to earlier between the partnership and the respondent to Milco Constructions Pty Ltd.[22] 42. It also appears to be the case that the applicant was employed by Milco Constructions Pty Ltd in the 2007/2008 financial year as a wage and salary earner.[23] 43. Following the making of the claim by the applicant for workers compensation benefits on

29 October 2007 the claim was accepted by QBE Insurance and payments of weekly compensation were made commencing from 3 September 2007 under claim number SF0326105. 44. Those payments of weekly compensation benefits continued to be made up until late 2010 or early 2011 when Turner Freeman Lawyers who were acting on behalf of the applicant gave notice to the partnership of a claim for lump sum compensation seeking benefits under s 66 and s 67 of the 1987 Act. 45. In support of that claim for lump sum compensation benefits the applicant relied upon two medical reports, dated 21 October 2009 and 8 December 2010 prepared by Dr Noel Dan neurosurgeon who had been treating the applicant for his back injury. 46. The claim was accepted by the insurer and the applicant signed a complying agreement on the basis that he suffered from a whole person impairment of 13% with an entitlement to the sum of $19,635 under s 66 and had an entitlement to compensation for pain and suffering under s 67 in the amount of $10,000.[24] 47. The partnership was identified as the employer of the applicant for the purposes of that agreement. 48. The applicant continued to be paid weekly compensation benefits following the settlement of the ss 66 and 67 claims. 49. It appears that on or about 14 June 2012 a further claim for lump sum compensation was made by Slattery Thompson Solicitors who were then acting on behalf of the applicant for what I assume to be an alleged injury of industrial deafness (given the name of the doctor referred to in the correspondence) while employed by the partnership. 50. As a consequence the insurer appears to have reviewed the claim following which a notice dated 23 August 2012 (the first s 74 notice) was issued under s 74 of the 1998 Act disputing liability on the basis that the applicant was not a worker of the partnership and that he was self employed at the time of his alleged injury on 3 September 2007.[25] 51. It is not apparent from the material before me what happened in relation to the lump sum claim for the alleged industrial deafness injury subsequent to the issuing of the first s 74 notice. 52. Possibly as a consequence of having received and considered the claim for lump sum compensation for industrial deafness the insurer of the partnership (QBE) issued a notice under s 74 of the 1998 Act dated 28 September 2012 (the second s 74 notice) denying further liability for payment of workers compensation benefits on the basis that the applicant was not a worker of the partnership and was self employed at the time of injury on

3 September 2007.[26] 53. The second s 74 notice advised that weekly payments of compensation would cease with effect from 9 November 2012 in accordance with s 54 of the 1987 Act. 54. The applicant subsequently instructed C and M Lawyers to act on his behalf and proceedings in the Workers Compensation Commission bearing matter no 2009/2013 were filed on

30 January 2013 seeking payment of weekly compensation and medical expenses.[27] 55. In those proceedings the employer respondent was identified as M & L Farah t/as Milco Constructions Pty Ltd (which of course could not be correct given that Milco Constructions Pty Ltd was incorporated fter the date of injury). 56. A Reply to that application to resolve a dispute was filed by Turks Legal on 24 February 2013.[28] 57. Although the contents of any subsequent correspondence and/or conversations between the applicant's solicitor and Turks Legal following the filing of the reply referred to at point 56 are not before me it appears that the applicant's solicitor then decided to issue a letter dated

8 March 2013 addressed to the present respondent advising that entity that it would be added to the proceedings being brought by the applicant on the basis that it was a deemed employer pursuant to s 20 of the 1987 Act and provided copies of the pleadings already filed.[29] 58. The applicant's solicitor did not suggest in the letter dated 8 March 2012 to the present respondent that the applicant alleged that Dasco Constructions Pty Ltd was the direct employer of the applicant as at the date of injury. 59. On 4 June 2013 the applicant's solicitors wrote to Turks Legal attaching a copy of the letter to Dasco Constructions Pty Ltd dated 12 March 2013 [sic] noting no reply had been received to same and asking whether the respondent would agree to the name of the respondent in the proceedings being amended from "M & L Farah t/a Milco Constructions Pty Ltd" to "Dasco Constructions Pty Ltd".[30] 60. It appears that on 12 June 2013 the applicant's solicitor wrote to QBE in essentially the same terms as the letter to Turks Legal dated 4 June 2013 and copied Turks Legal into the correspondence.[31] 61. On 24 June 2013 Turks Legal wrote to the applicant's solicitors advising that they were seeking instructions in relation to the matters raised in the letter of 12 June 2013 but that in the interim the applicant was asked to provide evidence that Dasco Constructions Pty Ltd was the principal contractor as at the date of injury and also noting that given the date of incorporation of the present respondent Milco Constructions Pty Ltd that it was impossible for Dasco Constructions Pty Ltd to have been the principal contractor with Milco Constructions Pty Ltd as at the date of injury.[32] 62. After further correspondence Turks Legal eventually advised the applicant's solicitor by letter dated 15 January 2014 that the respondent did not consent to any amendment to the application to resolve a dispute to join Dasco Constructions Pty Ltd to the proceedings.[33] 63. From the contents of an Application to Admit Late Documents dated 16 January 2014 it appears that proceedings bearing matter number 2009/2013 were listed for hearing on

27 February 2014.[34] 64. On 27 February 2014 Arbitrator Foggo granted leave to the applicant to add a further respondent to the proceedings.[35] 65. The matter was otherwise listed for hearing on 24 June 2014.[36] 66. On 27 February 2014 the applicant's solicitors wrote to Dasco Constructions Pty Ltd making claims for payment of weekly compensation and payment of medical expenses[37] (but also serving under s 66 of the 1987 Act a copy of a medical report from Dr Weisz dated

15 February 2013). 67. On 28 February 2014 the applicant's solicitors wrote to Dasco Constructions Pty Ltd making a claim for lump sum compensation under ss 66 and 67 of the 1987 Act and also giving notice of a work injury damages claim.[38] 68. On the same date, that is 28 February 2014 the applicant's solicitors also wrote to the partnership in the same terms giving notice of a claim for lump sum compensation and a work injury damages claim.[39] 69. The ss 281 and 282 Notice[40] attached to the letters dated 28 February 2014 referred to in points 67 and 68 above identified Michel and Laurice Farah ABN 63 545 231 952 as the employer of the applicant and Dasco Construction Pty Ltd as the head contractor. 70. In my view it is clear at the time the notices were served that the applicant was asserting that as at the date of injury he was directly employed by the partnership and that any claim against Dasco Constructions Pty Ltd was on the basis of deemed employment pursuant to s 20 of the 1987 Act. 71. In March 2014 Dasco Constructions Pty Ltd was added to the proceedings bearing matter number 2009/2013 as the second respondent. 72. Turks Legal subsequently were instructed to act in the interests of that respondent and filed a reply on its behalf. 73. Rather surprisingly, having regard to the s 74 notices that had been issued previously, QBE responded to the claim for further s 66 and s 67 benefits made by the applicant on

28 February 2014 against the partnership by making an offer of settlement under cover of a letter dated 6 May 2014 for a further 2% whole person impairment and an additional amount of $10,500 under s 67 of the 1987 Act.[41] 74. The offer referred to at point 72 above was accepted by the applicant's solicitors on his behalf by way of a letter dated 15 May 2014.[42] 75. On 5 June 2014 the applicant entered into a complying agreement under s 66A for settlement of his further claim for lump sum compensation.[43] 76. The complying agreement referred to at point 75 identified the employer as "M & L Farah".[44] 77. When proceedings 2009/2013 came before Arbitrator Foggo on 24 June 2014 the pleadings were amended so that the respondents were identified as M & L Farah (first respondent) and Dasco Constructions Pty Ltd (second respondent) with Milco Constructions Pty Ltd being deleted from the proceedings. 78. The matter before Arbitrator Foggo was discontinued with the insurer of the partnership agreeing to continue payments of weekly compensation on a voluntary basis under s 40 of the 1987 Act (as it then was).[45] 79. Weekly payments continued to be made by the insurer of the partnership up until

25 December 2017 at which time payments came to an end as the claim had been transitioned under the transitional arrangements for weekly compensation payments following the 2012 legislative changes.[46] 80. It was noted in the letter of advice from GIO (which appears to have taken over management of the claim) advising of the termination of payments of weekly compensation that the applicant would be entitled to payment of medical expenses for a further five years.[47] 81. All payments of benefits under the 1987 Act made to, for, or on behalf of the applicant by the workers compensation insurer appear to have been made on the basis that the partnership was the employer of the applicant. In other words the workers compensation insurer of the partnership paid weekly benefits from 3 September 2007 until 25 December 2017 (a period in excess of 10 years) and two lots of lump sum benefits under ss 66 and 67 as well as payment of s 60 expenses for a period of 15 years. 82. As far as can be ascertained from the documents before me although he had three firms of solicitors acting for him over the years, at no stage prior to the payments of weekly compensation coming to an end was it ever argued that the respondent in these proceedings was the direct employer of the applicant at the time of his injury on 3 September 2007. 83. On 11 September 2019 the applicant (via his present solicitors) lodged an application with the Workers Compensation Commission bearing matter number 4715/19 seeking assessment by an Approved Medical Specialist to determine whether the degree of permanent impairment was fully ascertainable.[48] 84. The application bearing matter number 4715/19 nominated two respondents namely Dasco Constructions Pty Ltd and M & L Farah without specifying on what basis those entities had been joined. 85. On 9 October 2019 GIO as scheme agent advised that it would accept liability for spinal surgery scheduled to be performed on 11 October 2019 but that further liability for weekly compensation or treatment expenses was denied.[49] 86. On 9 October 2019 Moray and Agnew acting on instructions of QBE as scheme agent disputed liability for payment of workers compensation benefits on the basis that the applicant was not a "worker" employed by Michel & Laurice Farah ABN 63 545 231 952.[50] 87. A reply in Workers Compensation Commission matter number 4715/19 was served on the same day. 88. On 22 November 2019 matter number 4715/19 was discontinued by the applicant at a preliminary conference.[51] 89. On or about 24 July 2023 the applicant commenced proceedings in the Personal Injury Commission (Commission) bearing matter number W5324/23 seeking weekly compensation nominating as the sole respondent Dasco Constructions Pty Ltd.[52] 90. Those proceedings were discontinued for unknown reasons on 28 August 2023.[53] 91. On 8 August 2023 the scheme agent EML issued a notice (the first s 78 notice)[54] under s 78 of the 1998 Act denying liability for weekly compensation and medical expenses on behalf of the respondent on the basis that the applicant was not a worker nor a deemed worker of the respondent within the meaning of the legislation. The first s 78 notice also denied liability under s 20 of the 1987 Act. 92. A further notice was issued by EML under s 78 of the 1998 Act (the second s 78 notice)[55] on 14 August 2023 also on behalf of the respondent denying liability for lump sum compensation on the basis that the applicant was not a worker nor a deemed worker within the meaning of the legislation. The second s 78 notice also denied liability under s 20 of the 1987 Act. 93. The applicant commenced proceedings in the Commission bearing matter number W25602/24 nominating the respondent as the employer of the applicant as at the date of injury. 94. Those proceedings were the subject of directions by Member Benk on 27 September 2024 and were set down for hearing on 23 October 2024 at which time it appears to have been discontinued due to the late advice received by the respondent of earnings by the applicant. 95. The present proceedings were filed on 12 August 2025 with the applicant seeking an award of weekly compensation from 26 December 2017 to date and continuing and an award for lump sum compensation. 96. The matter came before me for a preliminary conference on 15 September 2025 when same was set down for hearing on 6 November 2025. 97. At the preliminary conference it was noted that the applicant would not be alleging that he was a deemed worker within the meaning of s 20 of the 1987 Act. It was also noted that application may be made at the hearing for cross examination of witnesses. 98. At the conciliation/arbitration hearing Mr Stephen Hickey of counsel appeared on behalf of the applicant instructed by Mr Ali Mehanna solicitor from C & M Lawyers. Mr Akoury interpreter was available to assist the applicant. 99. Mr Justin Hart of counsel appeared for the respondent instructed by Mr Steve Harris from Moray and Agnew. Mr Trent Robinson from the insurer was also in attendance. 100. Attempts were made to have the matter resolve however those attempts were unsuccessful. 101. Mr Hickey advised prior to the arbitration phase that the applicant would not be asserting that he was a deemed worker within the meaning of the legislation (that is cl 2, Schedule 1 of the 1998 Act) and the applicant's case would be that he was a worker within the meaning of s 4 of the 1998 Act. 102. In his written submissions Mr Hickey appears to abandon the applicant's claim for further lump sum compensation[56] given that the applicant had already made a further claim for same as noted earlier.

1. The parties agree that the following issues remain in dispute:

(a) whether the applicant was a worker within the meaning of s 4 of the 1998 Act, and

(b) if the applicant is found to be a worker within the meaning of s 4 of the 1998 Act it will be necessary to have a medical assessment for the purposes of s 39 of the 1987 Act to determine whether the applicant has any further entitlements to payment of weekly benefits.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application and attached documents, and

(b) respondent's reply and attached documents.

1. Oral evidence was given by Mr Daniel Nicolas director of the respondent.

1. Given the time used in attempting to resolve the matter and the length of the oral submissions of Mr Hickey the matter was unable to be concluded on the hearing date and with the agreement of both counsel the parties were directed to file written submissions.
2. After the filing and service of the written submissions of both the applicant and respondent I requested further short submissions on one aspect of the matter.
3. The following written submissions were carefully considered in coming to a decision in the matter:

(a) applicant's written submissions filed 28 November 2025 (AWS1);

(b) respondent's written submissions filed 16 December 2025 (RWS1);

(c) respondent's written submissions filed 19 January 2026 (RWS2), and

(d) applicant's written submissions filed 30 January 2026 (AWS2).

1. The applicant's case was fairly accurately summarised by Mr Hart as being:

"[T]hat at the time of the incident the respondent had a contractual relationship with the partnership, M & L Farah ... but that he sometimes did work outside of those defined contractual relationships in his personal capacity as an employee of the respondent"[57]

1. The definition of "worker" in s 4 of the 1998 Act is relevantly in the following terms:

"'worker' means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing)."[58]

1. Accordingly it is necessary to properly determine the nature of the relationship (if any) between the applicant and the respondent.
2. It is the applicant's onus of proof to establish that he was a worker within the meaning of s 4 of the 1998 Act.
3. The applicant relies upon five statements made by him dated 25 August 2008,

3 September 2019, 11 March 2020, 16 November 2023 and 1 October 2024.[59] 4. In addition the applicant relies upon three lay statements from Laurice Farah dated

11 March 2020, Daniel Nicolas dated 11 March 2020 and Amer Haider dated 20 March 2020. 5. It is immediately apparent that with one exception the statement evidence relied upon by the applicant was obtained between 12 to 14 years after the events to which they refer. 6. It is normal human experience that memories fade and become less reliable as the time increases between the occurrence of an event and date the witness is asked to provide evidence in relation thereto. 7. It is also the case that where contemporaneous records and documents exist that it is more likely that those records and documents are accurate than statement evidence given more than a decade after the events. 8. On the same basis one would expect that a statement made fairly close in time to the actual events would be more likely to be accurate than the later statement evidence. 9. In this case the applicant did make a statement approximately 11 months after the event of injury in September 2007. 10. In considering this matter one of the first issues to be determined is whether the applicant's statement of 25 August 2007 is reliable and then to consider the significance of the statement in relation to the issues in dispute. 11. The applicant's statement of 25 August 2008 records that the applicant commenced doing work for the respondent in February 1986 as a sub contractor (with M & L Farah) until 1999.[60] 12. That statement is clearly incorrect in that the partnership did not commence until November 1999 as noted earlier. Accordingly the basis of the applicant performing work for the respondent between February 1986 and 1999 is not established by that statement evidence which is clearly incorrect. 13. The applicant went on to state that:

"From the 2006 financial year onwards when I worked for Dasco, I continued with them either direct or on a subcontract basis and I was still carrying out work on their behalf when the accident happened."[61]

1. The above statement does not clarify on what basis the subcontract work was being carried out - further it does not identify the subcontracting entity in that paragraph.
2. The applicant then subsequently stated:

"My current employer at the time of this accident was Milco Constructions Pty Ltd (prior to that M & L Farah) for which I am a director."[62]

1. That statement is significant for three reasons.
2. The first reason is that the statement is clearly incorrect where the applicant states that he was employed by Milco Constructions Pty Ltd at the time of his injury. The evidence is that Milco Constructions Pty Ltd was only incorporated on 5 October 2007 (as subsequently stated by the applicant in his statement.[63] Accordingly his claim to have been employed by that entity at the time of injury is unreliable.
3. The second significant point is that the applicant asserts that prior to working for Milco Constructions Pty Ltd he was employed by M & L Farah.
4. The third point is that he does not assert that he was employed by the respondent.
5. The statement goes on to record at pt.28 thereof as follows:

"At the time of this injury I was a full time and permanent employee of Milco Constructions Pty Ltd" and also stated,

"I did engage sub contract labour to carry out the job I was doing at the time of the accident"[64]

1. Again the statement is clearly inaccurate in asserting employment by Milco Constructions Pty Ltd but is significant in that the applicant asserts that he was engaging others who were working with him on the job where he was injured.
2. In his statement 25 August 2007 the applicant asserts that his only income was that derived from Milco Constructions and M & L Farah with no other sources of income.
3. The applicant also stated that his wife was not employed.[65]
4. The applicant also states that at the time of his statement he had the following liabilities:
   • NAB Mortgage - $600,000;
   • ANZ loan - $28,000;
   • Westpac credit card - $6,000;
   • Citibank credit card - $5,100;
   • St George car loan - $18,000;
   • GE Auto (with wife) - $80,000;
   • Westpac credit card (wife) - $26,000;
   • GE Credit line (wife) - $7,000, and
   • NAB personal loan - $28,000.[66]
5. The applicant also stated that his household expenses were $2,500 -$3,000 per month.[67]
6. It is difficult to reconcile the applicant servicing borrowings of just under $798,000 and pay household expenses of $2,500 to $3000 per month with the applicant's earnings as disclosed in his tax returns of $32,511 gross (including allowances) in 2005/06, and $1,145 net income in 2006/07 particularly as the tax returns of the applicant in the 2005/2006 year disclose spouse's earnings of $9,500 and in 2006/2007 spouse's earnings of zero.
7. This obvious inconsistency between declared earnings and the level of borrowings is not otherwise explained in the evidence.
8. Without wanting to overstate the position I have concerns as to the credibility of the applicant's assertions as to his earnings and the accuracy of the information provided in his tax returns which affects my assessment of the applicant as a credible witness.
9. In his statement of 25 August 2008 describing the actual event of injury he states;

"It happened at 16 Cecil Street Gordon where 84 units were being constructed where I was a subcontractor."[68]

1. The applicant when describing the event of injury did not assert that he was working for the respondent at that time.
2. At point 96-98 of his statement of 25 August 2008 the applicant asserts:

"I have not been able to work since the day of the accident. I have not worked in any position or occupation since then.

I have not earned any money since the day of the accident.

The only monies I receive now is $374.90 per week from QBE."[69]

1. The assertion as to earnings post accident appears to be incorrect in that the applicant's tax return for the 2007/2008 financial year shows him as having been paid a salary as a construction worker by Milco Constructions Pty Ltd[70]( which must post date the date of injury) and receiving profits from the partnership. This is another anomaly in the statement that is not otherwise addressed.
2. Similarly it is to be noted that the applicant signed the subcontracting agreement dated

21 September 2007 on behalf of the partnership to carry out work to a total value in excess of $800,000 inclusive of GST which appears to be incompatible with his assertions of being unable to work at all that time. 3. Overall the statement made by the applicant on 25 August 2008 gives me concerns as to the applicant's credit as a reliable witness as the impression created is one where the applicant appears to be fairly careless as to a number of assertions. I do note however that nowhere in that statement does he suggest that he was an employee of the respondent at the time of injury, indeed he asserts that he was working as a sub contractor at the time and employed others. 4. In terms of the relationship between the applicant and the respondent as disclosed in the contemporary statement and documents I firstly note that there appears to be no dispute that the applicant was regarded as a good and reliable worker by the management of the respondent. 5. There is no evidence disputing the applicant's assertions that he worked for the respondent on either a direct employee or subcontractor basis up until the applicant went to gaol. 6. The respondent was prepared to accept the applicant for employment while on day release and when the applicant was released from gaol the respondent appears to have subsequently retained the applicant's services on a fairly constant basis up until the date of injury. 7. It is significant that when the applicant was working for the respondent following his release from gaol in the 2005/2006 financial year the applicant was employed as a direct employee by the respondent with no suggestion in the applicant's tax return for that year of having worked on a sub-contract basis at all.[71] 8. In the 2006/2007 financial year the applicant's income is shown as totalling $1,145 with the applicant's business being shown as Formwork fixing without any ABN being identified. The applicant's wife's income was shown as zero in that tax return.[72] 9. I note that there is no evidence before me suggesting that the applicant at any relevant time had an ABN in his own name. 10. Although the statement evidence is fairly deficient on the issue it seems that the position for the applicant at the start of the 2007/2008 financial year was significantly different in that as noted the partnership was retained by the respondent to carry out a number of contracts on the site at Cecil Street Gordon. 11. As outlined earlier in these reasons the partnership entered into two contracts with the respondent on 17 July 2007 and one on 8 August 2007 each of which was in generally similar terms and that, inter alia, required the partnership to have sufficient manpower on site to fulfill the requirements of the contracts. 12. Those contracts also required the partnership to be responsible for rectification of faulty work at the partnerships cost, comply with Occupational Health and Safety and Environmental requirements, prepare a safe work method statement and be responsible for movement of its materials.[73] 13. As noted previously the contracts also required the partnership to have workers compensation and public risk insurance policies in place. 14. Those obligations are consistent with the partnership operating a business where it was bearing a commercial risk and bearing obligations that would go beyond the obligations and risks that an employee would face. 15. It is clear that considerable sums of monies were payable to the partnership pursuant to the terms of the various contracts entered into by it with the respondent with the partnership tax return showing receipts of $258,054 for the financial year 2007/2008 and very considerable expenses (most of which appear to relate to retention of additional labour to carry out the work).[74] 16. Given that the partnership appears to have assigned its rights under the contracts between it and the respondent to Milco Constructions Pty Ltd no later than 30 November 2007 the income referred to at point 154 was generated in approximately five months and as noted the total value of the contracts taken on by the partnership to perform work for the respondent at Cecil Street Gordon was in excess of $800,000 inclusive of GST. 17. It is quite clear in my view that the quantum of receipts and expenses disclosed in the partnership return is consistent with the applicant and his wife operating a bona fide business enterprise when it entered into the various contracts to perform the sub-contracting work at the Cecil Street Gordon site. 18. It is also the case that the partnership receipts for five months far exceed the income the applicant earned as a direct employee of the respondent in the 2006 financial year apparently as a full time employee. 19. While I accept that the applicant did work as a direct employee of the respondent at some times in the past the evidence overwhelmingly points to a bona fide independent contractor relationship in relation to the work being carried out at the Cecil Street Gordon site. I do not accept any submission to the effect that the applicant's relationship with the respondent always remained that of an employee of the respondent. 20. In my view the submissions of Mr Hickey for the applicant concede that it was possible the partnership was operating a bona fide commercial enterprise of which the applicant was a principal but then argues that at the time he suffered his injury the applicant was a direct employee of the respondent for the purposes of that particular task. 21. The difficulty I have with those submissions is that the contemporary evidence is not consistent with such a characterisation. 22. Firstly, as I have noted previously in these reasons, the applicant's statement of

24 August 2008 specifically states that he did employ sub-contract labour to carry out the job he was doing at the time of the accident. 23. Secondly the Early Report of Injury form completed by the applicant identified the partnership not the respondent as the employer. 24. Thirdly the Employee's Report of Injury Form completed by the applicant recorded that the partnership not the respondent was the employer at the time of injury. 25. Fourthly the Employers Report of Injury also described the applicant as a direct employee of the partnership. 26. Fifthly there is no evidence such as a group certificate in the 2007/2008 financial year provided by the applicant evidencing an employment relationship between the applicant and the respondent at the time of injury. 27. Further there is no evidence of the applicant himself having an ABN and carrying out subcontract work at the time of injury whereby he could render an account to the respondent for work done separately to the partnership. 28. A further difficulty I see with Mr Hickey's submission is that the applicant had been represented by three separate firms of solicitors up to 2014 without it ever having been alleged in the various proceedings that the respondent was liable to the applicant as the applicant's direct employer at the time of injury. In the normal course of events I would have expected that instructions from the applicant would have raised that issue within the almost seven year period from the date of injury that had then elapsed. Presumably the applicant never suggested to those representatives that he regarded himself at the time of injury as an employee of the respondent. 29. I further note that even when the respondent was joined to earlier proceedings in 2014 and in addition was served with notices giving notice of an intention to pursue a work injury damages claim it was done so on the basis that the respondent may be liable as a s 20 principal not on the basis of direct employment of the applicant. 30. This in my view is a significant point given that the issue of employment had been raised in s 74 notices issued in August and September 2012.[75] Presumably if the applicant had given instructions consistent with his later statements at that time the allegation of direct employment would have been raised in letters of claim and pleadings at that time. The logical inference is that the applicant did not suggest he was so employed by the respondent at that time. 31. As noted the applicant does rely on a number of statements made between

3 September 2019 and 1 October 2024. 32. The statement of 3 September 2019 does not deal with the circumstances of injury nor the alleged circumstances of employment by the respondent and is therefore irrelevant to the issues in dispute. 33. The next statement in time chronologically is one dated 11 March 2020 which is notable for the vagueness of the assertions therein such as his assertion that;

"When I came out of goal [sic], Danny made known to me that if I needed to work as a subcontractor and I would need to have an ABN number.

I have really only ever worked for Danny as a labourer and Danny controlled the nature of the relationship between me and him. On one job for example, he said to me that I should see his accountant and arrange for an ABN to be put in place for me to do a job for him. On another job, Danny said that he would open a company or a partnership for me, and that he would pay that company from which my wages would then be paid out."

1. The paragraph quoted above is completely lacking in detail as to when the alleged conversations took place and is inconsistent with other more credible evidence.
2. For instance the applicant clearly carried out work as a formwork concreter and steel fixer and was regarded as a skilled worker by the respondent[76] and was not only a labourer.
3. Further, and as has been noted previously, the partnership and the ABN for same was established in 1999 not when the applicant came out of gaol.
4. Thirdly, again as been noted previously, there is no evidence of the applicant having his own ABN separately from that of the partnership.
5. In the statement of 11 March 2020 the applicant also asserts that;

"Danny paid for everything including what DIB Insurance Brokers did and also paid all the premiums for M & L Farah and when Milco was set up he did the same thing for Milco Constructions."[77]

1. The above assertion appears to be incorrect having regard to Mr Nicolas's oral evidence and the payment records in evidence which appear to confirm that while the respondent may have advanced the funds to pay the insurance premiums it was on the basis that same were repaid and the remittance documents confirm a deduction being made on that basis.[78]
2. Given the readily identifiable inaccuracies and the general vagueness of the assertions contained in the statement of 11 March 2020 and noting that it was made almost 13 years after the event I do not find the statement dated 11 March 2020 particularly persuasive.
3. Despite these reservations I do accept that both the applicant's statement and Mr Nicolas's statement and oral evidence both confirm that the work being done at the time of the applicant's injury was not covered by the terms of the written contracts between the partnership and the respondent and accept that the injury was received in such circumstances.
4. The applicant's further statements are not relevant to the issue of whether the applicant was a worker within the meaning of the legislation.
5. The statement from the applicant's wife Laurice Farah dated 11 March 2020 is of very limited value given the witness stated that she "took no part in the business" and refers to her "understanding" of events rather than a statement of her knowledge of same.
6. One part of her statement evidence does however assist in that she explains why Milco Constructions Pty Ltd was set up as it "would give greater protection to everyone"[79] which is consistent with a realisation of the very real financial risks to a partner in a partnership undertaking a commercial enterprise which may not have been fully appreciated previously.
7. Mr Nicolas's statement evidence does, as noted previously, confirm that the work that the applicant was doing at the time of his injury was not part of the written subcontract work and further states that at times the applicant would be asked to do work outside the terms of those written contracts.
8. I note however that he describes that work being done on a subcontract basis.[80]
9. Mr Nicolas also gave evidence that after a certain date all remittances for payments for work done on the site were paid to the partnership and I further note that the remittance covering the date of the applicant's injury was issued to the Michael and Laura Farah that is the partnership.[81]
10. In his submissions[82] Mr Hickey correctly refers to the importance of the terms and conditions of any written contract over the "indicia" and "multifactorial" tests citing the High Court authority of Construction, Forestry, Maritime and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.
11. Mr Hickey submits, as I understand it, that given the existence of the written contracts the work done on the lift shaft (which is where the applicant suffered his injury) was outside the terms of the written contract therefore did not form part of the commercial arrangement between the partnership and respondent but rather should be regarded as a separate employment arrangement.
12. I do not accept that submission.
13. It is in my view a common event and a common experience that where building work is being carried out on a site that the owner or builder will seek to vary the contract or sub contract to have additional work done. Indeed that request for additional work or works is often the subject of subsequent dispute where the costs of the additional work is charged.
14. The fact that additional work is requested and performed does not of itself change the relationship between the parties and the fact that the variation is requested orally does not matter.
15. In this case the written contracts clearly point to a proper commercial relationship between the partnership and the respondent. The remittance advice for the work done on the day of injury is addressed to the partnership.
16. Those written documents point to a relationship of the partnership entering into a bona fide commercial relationship with the respondent and performing work in the lift shaft on the day of injury as a variation of the existing contractual relationship.
17. As also noted previously the applicant's own evidence suggests that he was utilising his own subcontractors (or perhaps workers) to perform the work where he was injured and

Mr Nicolas's evidence confirms that the partnership employed other workers on the site. 18. Mr Amer Haider's evidence as set out in his statement dated 20 March 2020 is not in my view particularly probative. 19. As submitted by Mr Hart Mr Haider is purporting to give evidence about events 13 years previously where he had no particular reason to recall same. 20. Further he gives evidence about the scope of "contract works" with no indication why he , as a site foreman, would have been aware of the nature and extent of contractual obligations between the partnership and respondent. 21. In my view having regard to all the evidence and giving appropriate weight to same I am unable to find that the applicant establishes on the balance of probabilities that he was a worker employed by the respondent (within the meaning of the legislation) at the time he suffered injury on 3 September 2007. 22. While not relevant to the finding I note that Mr Hart advised, during the course of the conciliation/arbitration hearing, that recovery would not be sought for the payments made to the applicant of benefits under the 1987 Act.

1. The applicant fails to prove on the balance of probabilities that he was a "worker" within the meaning of s 4 of the 1998 Act and therefore does not establish that he suffered injury arising out of or in the course of his employment as provided in s 4 of the 1987 Act.
2. There will be an award for the respondent.

[58] I have not included the exclusions noted in sub paragraphs (a),(b),(c), or (d) as they are not relevant to this matter.