1. The second respondent adopted the applicant's submissions.
2. The second respondent referred to s 76 of the Evidence Act 1995 (the opinion rule) and submitted Ms Turner's evidence did not fall within the exception for which s 78 provides. The rules of evidence did not apply, but they were instructive.
3. The second respondent submitted Ms Turner's evidence did not provide any basis to support her opinion based on what she saw, heard, or otherwise perceived. It should be given extremely little, if any, weight.
4. The second respondent submitted Ms Turner did not say she had a close relationship with her parents, spoke to them regularly, or knew how payments were done or how the farm worked. She had made concessions regarding her lack of knowledge. Her presumption that her brother was paid in a similar way to a casual agreement was from someone who clearly had "an axe to grind". She was deliberately trying to prevent the dependants from receiving their money, due to "bad blood", which was evident from the other evidence.
5. The second respondent submitted that Ms Turner's evidence that Raymond kept meticulous records was a gross overreach. It was "an extremely long bow" to consider that the records were meticulous.
6. The second respondent submitted that Ms Turner's evidence that the deceased was not able to provide the first respondent with much assistance was inconsistent with the deceased working on the farm for himself. It was inconsistent with other evidence, and another example of Ms Turner's bias in circumstances where she conceded she had little knowledge of what happened.
7. The second respondent submitted the first respondent's highest case was the absence of records of payments in very sparse business records. He submitted Ms Turner's opinion evidence should be rejected.
8. The second respondent submitted there were no primary documents to support Ms Turner's hand-written summary, no tax records from the first respondent, and no WorkCover or SafeWork documents, so that a Jones v Dunkel[1] inference should be drawn.
9. The second respondent finally submitted that the deceased was a worker, he was performing duties on the day of his death in the course of his employment, and there should be a finding in favour of the claimed death benefit.
10. In reply to the first respondent, the second respondent "echoed" the applicant's submissions. He submitted that whether it was the first respondent's wool was irrelevant. The deceased had been directed by the first respondent to clear the shed. He was directed to do a number of things, and putting the wool on the truck, if it was his, was one of them. It was all-encompassing in the direction given by his employer.
11. The second respondent submitted that r 73 of the Rules goes further than the Evidence Act 1995 and Ms Turner's evidence was unacceptable. It was not a matter of weight.
12. The second respondent submitted there was no need to cross-examine Ms Turner. It was not a breach of Browne v Dunn[2] if the documents gave notice that the evidence would be challenged in a particular way - New South Wales Police Force v Winter[3]; West v Mead.[4]

1. The third respondent repeated and echoed the submissions of the applicant and second respondent.
2. As regards the indicia of deemed worker conditions, the third respondent submitted the only evidence about the work the deceased was undertaking in his own ABN came from his sister and was at best hearsay. The best evidence was that of the applicant, who was working with the deceased at the time.
3. The third respondent submitted the highest point of the evidence in terms of meticulous records was that the applicant sold some type of product for $1,842 on 19 November, either in 2015 or 2016. It was some time after the death of the deceased. We do not know what the description was.
4. The third respondent submitted it was quite clear from the first respondent's profit and loss statements that at the time of the deceased's passing, Raymond was undertaking a business of sales of wool and trading profits from sheep. There was no evidence that the deceased was undertaking work that was incidental to either, apart from farmhand work.
5. The third respondent submitted the first respondent's profit and loss statements should hold considerable weight, as independent evidence as to what he was undertaking at the time. Ms Turner did not know what was being undertaken in her father's business and everyone else had passed away. The best evidence was that of the applicant, who was there at the time and undertaking the work.
6. The third respondent submitted there was evidence of cash coming out of the first respondent's business and I would be satisfied that some was going to the deceased. There was no reason for cash coming out other than payments of cash in hand.
7. The third respondent submitted there was evidence of additional payments "on the books" for the shearing in August 2015, after the deceased's death. There were three shedhands where there had previously been only one.
8. The third respondent submitted that, with the exception of the document evidencing the receipt of $1,842, there was no evidence of the deceased buying and selling wool.
9. The third respondent submitted simply having an ABN was not relevant. The type of work that was being undertaken was relevant to the indicia.
10. The third respondent submitted if I was not satisfied the deceased was a worker, I would be satisfied he was a deemed worker.

1. The first respondent submitted that, assuming the deceased was a worker, the type of work he was performing at the time of his death is crucial.
2. The first respondent submitted that when paragraph 12 of SC Weller's statement is read with paragraph 18, it is clear that the reference can only be a reference to Kevin. The applicant had conceded that Kevin was loading wool bales onto his trailer. If "Kevin" is not substituted for "Ray" in paragraph 12, it makes no sense.
3. The first respondent's case, supported by the best evidence, was that the deceased was loading his own vehicle with wool bales. The significance of this is that the applicant's case was that the deceased attended the property in response to a request by the first respondent to assist in quite different activities, namely clearing the shed in anticipation of the shearers arriving.
4. The first respondent submitted that the request was made of the deceased at about 8am, and the accident occurred at about 2.00pm. The obvious inference, absent any evidence to the contrary, was that the deceased may well have attended the property that morning to do the activities referred to in the applicant's evidence, but at some stage, before the accident occurred, he had commenced loading his wool onto his vehicle.
5. It is the applicant's case that Kevin attended to assist in clearing out the shed. It was quite possibly the case, as the applicant stated, that Kevin was asked, at about 8.00am, to go. The accident occurred at 2.00pm. At some stage before the accident, Kevin commenced loading his wool into his vehicle.
6. The first respondent submitted that the Evidence Act 1995 did not apply. Section 43(2) of the Personal Injury Commission Act 2020 (PIC Act) provides that the Commission is not bound by the rules of evidence. Rule 73 of the Rules indicated how evidence was to be approached.
7. The first respondent submitted the evidence of the police officer should be accepted, although it was clear that in paragraph 12, he was referring not to Ray, but to the deceased.
8. The first respondent submitted the onus was on the applicant to establish that at the time of the accident the deceased was a worker. There was no evidence to satisfy the onus.
9. The first respondent submitted the arrangement was common in farming and in families. There was no evidence of any payment to the deceased for some years before his death. The records were meticulous, indicated by the fact that they were very detailed, and spanned a long period. The first respondent referred to Ms Turner's evidence of the support Raymond provided to the deceased.
10. The first respondent submitted the applicant's statement was not as detailed as it could have been. The fact that the deceased had an ABN and sold cattle, sheep, "etc", fitted neatly with the evidence that he was loading his wool into his vehicle. It was very strong evidence that refuted he was doing anything in relation to whatever the arrangement was between him and his father.
11. As regards the second respondent's submission that a Jones v Dunkel inference should be drawn against it, the first respondent submitted the opposite applied. It was open to the applicant to serve a Direction for Production for the primary documents or for her solicitors to request them. No request was ever made.
12. As regards the reference to SafeWork documents, the first respondent submitted it was hard to understand their relevance, but the applicant could have obtained and used them. The only inference to be drawn was that they would not have assisted. The significant omission in the applicant's evidence is that, apart from the records produced by Ms Turner, there were no financial records whatsoever relied on by the applicant.
13. The first respondent referred to the deceased's 2015 tax return, which was inconsistent with him being a worker of any entity in the year of his death. If reliance was to be placed on Jones v Dunkel, an inference could be drawn that financial records, which were presumably available, would not have shed greater light on the deceased's activities.
14. The first respondent submitted that criticism of Ms Turner was unfair. She had been summonsed, but the request for cross-examination was withdrawn.
15. The first respondent referred to Ms Turner's evidence about the purchase of Mountain Paddock in 2000 and the separate breeds of sheep owned by the deceased and Raymond. It submitted the applicant had given no evidence to the contrary. I would accept Ms Turner's evidence that the applicant took the wool the deceased was loading on the day of his death to Glen Innes to sell a few days later, absent any evidence from the applicant to the contrary.
16. The first respondent submitted the evidence was overwhelmingly against the proposition that the deceased was a worker employed by the first respondent at the time. The activity he was performing at the time of the accident had nothing to do with that arrangement and was entirely connected with his own business activities.
17. The first respondent referred to the evidence of early crutching, during which the deceased was wool handling. He submitted there was no evidence of payment by the first respondent during the 2015 financial year.
18. The first respondent referred to evidence that the deceased left home between 10.30am and 11.00am. The accident occurred 3 to 3.5 hours later, according to the police. The first respondent submitted that if the deceased performed some activity to assist him, that occurred separately and before the deceased commenced loading his own vehicle with his own wool.
19. The first respondent submitted the evidence was insufficient for the applicant to discharge the onus of proof that the deceased was a worker employed by the first respondent. The best evidence was to the contrary. Even if the deceased was a worker, the overwhelming evidence supported the first respondent's submission that, at the time of his death, the deceased was performing an activity entirely in connection with his own business, consistent with his 2015 tax return, and in no way connected with whatever arrangement he had with the first respondent. There should therefore be an award for the first respondent.
20. With leave, the first respondent made a further submission that the evidence of SC Weller is that Raymond said the wool bales were to be loaded onto the deceased's ute so he could transport them to Inverell to be sold. This was in response to the suggestion that this activity could have been in some way connected to clearing up the shed in response to the first respondent's request.
21. The first respondent also submitted, bearing in mind the onus was on the applicant, it would be assumed there would have been records to indicate where the wool bales were going. Absent that evidence, that was a further basis for an inference to be drawn against the applicant.

"'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). However, it does not include--

(a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or

(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or

(c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or

(d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978 ) while--

(i) participating in an authorised activity (within the meaning of that Act) of that organisation, or

(ii) engaged in training or preparing himself or herself with a view to so participating, or

(iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged,

if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things."

(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or

is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.

'worker' in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause."

(a) means personal injury arising out of or in the course of employment,

(b) includes a

'disease injury', which means--

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined."

1. The applicant fairly conceded that the evidence in this matter is "murky", and the matter is not "a lay down misère" for her. Unfortunately, due to the effluxion of time, there is no evidence from Raymond, apart from what he is reported to have told SC Weller, or Edna.
2. The applicant, the second respondent, and the third respondent were critical of the evidence of Ms Turner. However, it is the applicant who bears the onus.
3. As the first respondent submitted, the Commission is not bound by the rules of evidence - PIC Act, s 43(2).
4. Rule 73 of the Rules provides that evidence should be logical and probative; relevant to the facts in issue; evidence based on speculation or unsubstantiated assumptions is unacceptable; and unqualified opinions are unacceptable.
5. I do not accept that Ms Turner's evidence should be given minimal weight. She stated that she did not have a role within her father's business. That does not mean she had no knowledge of what the business entailed, or how her father ran the business. Some of her evidence accords with that of the applicant.
6. I have had no regard to that part of Ms Turner's evidence in which she has used words like "I presume", "pretty sure", or "firmly believed". I am also mindful of the fact that it appears there is "bad blood" between Ms Turner and the applicant.
7. I have given no weight to the evidence of the second and third respondents as to their belief that Kevin was employed by the first respondent. They were aged 12 and 7, respectively, at the date of Kevin's death. They can have no knowledge of whether there was or had been an employer/employee relationship between Kevin and the first respondent, despite what they may have observed of their father's activities on the properties.
8. The applicant submitted that Ms Turner knew nothing about the running of the farm. I do not accept that submission, but assuming the applicant was in a better position to know about this, her evidence is in my view lacking and fails to address some of the evidence given by Ms Turner.
9. The applicant gave evidence that when she and Kevin lived at Little Valley, they performed work in exchange for living in the cottage. When they were at Little Valley, Kevin was being paid, including some payments of cash in hand. The applicant and Kevin left Little Valley and moved to Inverell in 2010.
10. The applicant also gave evidence that Kevin was paid cash in hand, or in material items, for crutching work in around April. She does not state whether Kevin did this work in 2015.
11. It is common ground that the first respondent's records disclose no payment to Kevin from 2011 to June 2015.
12. It is accepted that, if Kevin was being paid in cash or kind, there may be no record. There may well have been sound reasons for this arrangement, and it may have suited both Kevin (and the applicant, when she was paid in cash) and Raymond. The downside for the applicant, however, is that there is no documented evidence of any payments to Kevin by the first respondent for several years before Kevin's death. There are, however, records of other cash payments.
13. Again, assuming the applicant is in a better position than Ms Turner to know about the arrangements, the applicant has given no evidence as to when Kevin last received any payment, whether in cash or in kind, from the first respondent, or the amount or nature of the payment. She has not given evidence as to whether payments came from Edna's account.
14. The applicant has given no evidence as to the regularity of cash payments, whether they were banked, in which case bank records would show cash entries she may be able to identify by statement evidence, or whether the money was simply spent on everyday expenses.
15. The applicant has given evidence that Kevin was angry about going to Little Valley on the day of his death, and she believed he may have been afraid of his father. She has not given evidence as to whether there was any discussion about whether Kevin was to be paid for any work he performed that day, or the form that such payment may take. She has not given any evidence that after Kevin's death she asked for, or received, any payment that may have been due to him for that work, or that any such payment was offered by Raymond.
16. Mr Flett has given evidence that he regularly helped Kevin and Raymond with farm work. Mr Flett himself helped out only for his own enjoyment and was not paid. However, he has given no evidence that he ever witnessed Kevin receiving payment in cash or in kind from Raymond, or of any discussion with Kevin about this, either on the day of Kevin's death or at any other time.
17. Ms Turner gave evidence that she was an "advocate" for the first respondent on the day that WorkSafe [sic] conducted its investigation. Her evidence of what the information disclosed is not supported by any documents. However, her evidence and that of the applicant confirms that SafeWork NSW investigated the accident.
18. As I have noted, there is no evidence from SafeWork NSW, and the absence of such evidence is not explained. The second respondent's submission that a Jones v Dunkel inference should be drawn against the first respondent because the first respondent did not rely on, among other documents, SafeWork NSW documents, is rejected. The first respondent does not bear the onus.
19. If the applicant believed evidence from SafeWork NSW would assist her case, it was open to her to request that evidence. Had it not been forthcoming, it was open to her to request leave to serve a Direction for Production on SafeWork NSW in these proceedings. No such request was made.
20. The applicant submitted it was relevant that the first respondent required people to work on the property after Kevin's death, and the third respondent submitted that additional shedhands were required for the shearing in August 2015.
21. This is equally consistent with Kevin having assisted his father with no expectation of payment as it is with Kevin having been paid for such assistance. The evidence simply does not allow me to determine which was the case.
22. The circumstances in which Kevin came to be engaged in activity, to use a neutral term, in the first respondent's shearing shed on the day of his death may be explained by him having been requested by Raymond to attend, in the expectation of being paid, or by Raymond requesting that he do so, with no expectation of payment by either party.
23. In Luxton v Vines,[5] Dixon, Fullagar and Kitto JJ dealt with the drawing of an inference in a civil case:

"In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought, then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise."

1. In Fuller-Lyons v New South Wales,[6] the High Court said an inference of fact involves "a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts."
2. In Flounders v Millar,[7] Ipp JA said "[t]he choice between conflicting inferences must be more than a matter of conjecture."
3. The evidence simply does not allow me to form a definite conclusion, of which I am "affirmatively satisfied", on the balance of probabilities, that Kevin was a worker in the employ of the first respondent at the time of his death. The applicant has not met her onus in this regard.

1. The only party to make submissions on whether Kevin was a deemed worker was the third respondent.
2. I am not satisfied there was a contract between Kevin and the first respondent for Kevin to perform work exceeding $10 in value, for the same reasons that I am not satisfied that Kevin was a "worker".
3. It is therefore unnecessary that I consider whether the activity was incidental to a trade or business regularly carried on by Kevin.

1. In the event that I am wrong in my determination that Kevin was not a worker, I have also considered whether, if Kevin was a worker, the injury arose out of or in the course of his employment.
2. In my view, the evidence suggests that it is most likely that, when the accident occurred, Kevin was loading bales of his own wool onto his own vehicle.
3. I accept that SC Weller's reference in paragraph 12 of his statement to "Ray" having arrived at the property at about 2.00pm is an error, and in fact it was Kevin who arrived at that time. Given that it was Ray's account being recorded by SC Weller, the sentence otherwise makes no sense.
4. Paragraph 18 of SC Weller's statement clearly says Kevin was loading the wool bales into his vehicle and trailer. (My emphasis.) As the applicant submitted, this is contemporaneous evidence.
5. The applicant's evidence is that Kevin left home on the day of his death with the trailer attached to his red Toyota Hi-Lux. SC Weller referred to a steel box trailer attached to a red ute.
6. The applicant gave evidence that a police officer asked her father to get Kevin's dog out of the ute, which suggests that the vehicle belonged to Kevin.
7. The applicant gave further evidence that Ray told her she could not move the car and trailer because WorkCover had to come. This conversation could only have been necessary because the vehicles belonged to Kevin. Had they not done so, the applicant would not have been proposing to move them.
8. The applicant's evidence is that Kevin had reversed his trailer up to the platform. (My emphasis.)
9. The autopsy report recorded that Kevin was loading bales of wool onto a Toyota Hi-Lux ute. This information may have come from the police, although the make of the vehicle was not referred to in SC Weller's statement.
10. The applicant has suggested that the wool being loaded may have been a mixture of Kevin's wool and Ray's wool, and the bales would have had identifying details. She also stated that SafeWork may have taken pictures of the bales. As I have noted, there is no evidence from SafeWork NSW, and it would have been open to the applicant to obtain such evidence.
11. The applicant has provided no reason for her belief that the wool may have been a mixture of Kevin's and Ray's wool. She can only mean that there may have been a mixture of bales, as Kevin and Ray's sheep were of different breeds, so the wool itself would not have been mixed.
12. The applicant has given no evidence of what happened to any bales of wool on the trailer that may have belonged to Ray. She did not say, for example, that they were removed from the trailer before she retrieved it. She has not disputed Ms Turner's evidence that she took the wool to Glen Innes to be sold and has not said any of that wool belonged to Ray.
13. In my view, it is most likely that Kevin was initially engaged in cleaning out the shearing shed and later commenced loading his own wool onto his own trailer. If that was the case, the injury he sustained did not arise out of or in the course of his employment with the first respondent. He was engaged in his own activity in furtherance of his own business interests.
14. A further explanation of Kevin's activity may be that Raymond asked him to clear the shearing shed of Kevin's own wool, in preparation for the shearers' arrival.
15. The applicant's evidence is that Raymond requested Kevin to clean up any off-cut pieces, bales of wool, finish the wool pressing, and clean the shed. That is equally consistent with Kevin being asked to remove his own wool as it is with him cleaning the shed of Raymond's wool.
16. None of the parties has submitted on this possibility, and I have not relied on it in reaching my conclusion that Kevin's injury did not arise out of or in the course of employment with the first respondent. It is simply, again, illustrative of the difficulty in determining the circumstances that led to Kevin's death.
17. Once again, the evidence does not allow me to form a definite conclusion, of which I am "affirmatively satisfied", on the balance of probabilities, that Kevin's death resulted from an injury arising out of or in the course of his employment with the first respondent.
18. The order is set out in the Certificate of Determination.

[1] [1959] HCA 8; (1959) 101 CLR 298.

[3] [2011] NSWCA 330.

[4] [2003] NSWSC 161.

[5] [1952] HCA 19; 85 CLR 352.

[6] [2015] HCA 31.

[7] [2007] NSWCA 238.