Southern Cross Community Healthcare Pty Ltd v Chief Commissioner of State Revenue

ealth Services) Amendment Act 1986 (NSW) Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), ss 11C, 43(3) National Disability Insurance Scheme Act 2013 (Cth), ss 6, 13, 15 NSW Trustee and Guardian Act 2009 (NSW), ss 5, 11 Pay-roll Tax Act 1971 (NSW), ss 3C, 10 Payroll Tax Act 2007 (NSW), ss 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 17, 32, 33, 34, 35, 37, 38, 39, 40, 50, 51, 63, 100, Sch 2 cll 7, 8, 9, Sch 3 cl 8 Pay-roll Tax (Amendment) Act 1979 (NSW) Pay-roll Tax (Amendment) Act 1983 (Vic) Pay-roll Tax (Further Amendment) Act 1977 (NSW) Public Sector Employment and Management Act 2002 (NSW) Public Sector Employment Legislation Amendment Act 2006 (NSW) Public Service Act 1999 (Cth) Social, Community, Homecare and Disability Services Industry Award 2010, cl 25.1 State Insurance and Care Governance Act 2015 (NSW) State Revenue Legislation Amendment Act 2005 (NSW) State Revenue Legislation Further Amendment Act 1999 (NSW) State Revenue Legislation (Miscellaneous Amendments) Act 1998 (NSW) Statute Law (Miscellaneous Provisions) Act 2016 (NSW), Sch 4 cl 2 Superannuation Guarantee (Administration) Act 1992 (Cth), s 12 Supreme Court Act 1970 (NSW) Taxation Administration Act 1996 (NSW), ss 3, 10, 18, 21, 22, 24 ,25, 86, 91, 94, 95, 97, 100, 103, 103A, 104, 105, 101, 119 Cases Cited: Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702 Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue (NSW) [2019] NSWSC 657; (2019) 109 ATR 879 Bridges Financial Services Pty Ltd v Chief Commissioner of State Revenue [2005] NSWSC 788; (2005) 222 ALR 599 Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 Commissioner for Superannuation v Miller (1985) 8 FCR 153 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 Drayton v Martin (1996) 67 FCR 1 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346; [2015] FCAFC 37 Grain Growers Ltd v Chief Commissioner State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359 Harrington Park Children Services (NSW) Pty Ltd v Chief Commissioner of State Revenue [2008] NSWSC 266; (2008) 71 ATR 143 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 HRC Hotel Services Pty Ltd v Chief Commissioner of State Revenue (NSW) [2018] NSWSC 820; (2018) 108 ATR 84 Jamsek v ZG Operations Pty Ltd (2020) 279 FCR 114; [2020] FCAFC 119 Lease A Leaf Property Pty Ltd v Chief Commissioner of State Revenue [2011] NSWADTAP 41; (2011) 85 ATR 273 Leffanue v Southern Cross Community Health Care Pty Ltd [2020] FWC 3122 Moore Park Gardens Management Pty Ltd v Chief Commissioner State Revenue [2006] NSWCA 115; (2006) 62 ATR 628 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497; 1 All ER 433 Smith's Snackfood Co Ltd v Chief Commissioner State Revenue [2012] NSWSC 1116; (2012) 90 ATR 342 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Tasty Chicks Pty Ltd v Chief Commissioner State Revenue (NSW) (2011) 245 CLR 446; [2011] HCA 41 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Trust Co of Australia Ltd v Chief Commissioner of State Revenue [2002] NSWADT 21 UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852; (2016) 104 ATR 577 Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773; (2018) 108 ATR 63 WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 95 ALJR 681 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1979 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 1998 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 March 2006 Theodor Mommsen, Paul Krueger and Alan Watson (eds), The Digest of Justinian (1985, University of Pennsylvania Press) 19.2.9.5; 19.2.19.9; 19.2.19.10; 19.2.35.pr; 19.2.22.2; 19.2.51.1 World Health Organisation, "Continuity and Coordination of Care: A Practice Brief to Support Implementation of the WHO Framework on Integrated People-centred Health Services" (2018, Geneva) WW Buckland, A Textbook of Roman Law: From Augustus to Justinian (3rd rev ed, 1963, Cambridge University Press) Category: Principal judgment Parties: Southern Cross Community Healthcare Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: E Collins SC with C Burnett SC and A Hammond (Plaintiff) R Seiden SC with D Mitchell and D Woods (Defendant)

Solicitors: Colin Biggers & Paisley Pty Ltd (Plaintiff) Crown Solicitor of New South Wales (Defendant) File Number(s): 2018/185670 Publication restriction: Nil

Introduction

1. The plaintiff, Southern Cross Community Health Care Pty Ltd (Southern Cross), is engaged in the business of arranging for the provision of in-home attendant care services (Care Services) for the disabled, frail and aged (Participants). It does so by arranging for the provision of Care Services by support workers or attendant care workers (Support Workers). Southern Cross makes such arrangements at the behest of various authorities (the Funders), which pay Southern Cross for the provision of such services under contractual arrangements between Southern Cross and the Funders. Southern Cross remunerates the Support Workers, who have no contractual arrangement with the Funders or the Participants. These proceedings are concerned with the liability of Southern Cross for payroll tax under the Payroll Tax Act 2007 (NSW) (the Payroll Tax Act) in respect of remuneration paid to Support Workers by Southern Cross in the years ended 30 June 2012, 2013, 2014, 2015 and 2016 (the Relevant Tax Years).
2. Southern Cross has received payroll tax assessment notices dated 11 July 2017 in respect of payments made to Support Workers during the Relevant Tax Years (the Assessments). By the Assessments, the defendant, the Chief Commissioner of State Revenue (the Commissioner), required payment, by 1 August 2017, of sums totalling $6,234,619.67, being payroll tax totalling $6,184,685.11 and interest totalling $867,731.83 (as at the time of the Assessments), less $817,797.27 already paid by Southern Cross. The total interest claimed by the Commissioner is $2,931,967.00 as at 30 April 2021 consisting of market rate interest of $533,967 and premium rate interest of $2,378,000. On 9 October 2017, Southern Cross lodged objections to the Assessments. By letter of 18 April 2018, the Commissioner disallowed the objections (the Objection Decision).
3. By its amended summons filed on 4 March 2021, Southern Cross now appeals from the Objection Decision under the Taxation Administration Act 1996 (NSW) (the Administration Act). Southern Cross claims orders that the Commissioner withdraw each of the Assessments or, in the alternative, reassess Southern Cross. Against the possibility that it fails in those claims, Southern Cross seeks orders that the Commissioner remit interest imposed. Before outlining the issues raised by the appeal, it is desirable to explain the legislative scheme under which the issues arise.

The Payroll Tax Act

1. Under s 6 of the Payroll Tax Act, payroll tax is imposed on all taxable wages. Under s 7, the employer by whom taxable wages are paid or payable is liable to pay tax on the wages. Section 8 deals with the ascertainment of the amount of payroll tax payable and, under s 9, a person who is liable to pay payroll tax on taxable wages must pay the tax within seven days after the end of the month in which the wages are paid or payable, except in the case of June, in which case the person must pay the tax within 21 days after the end of the month.
2. Under s 13 of the Payroll Tax Act, wages means wages, remuneration, salary, commission, bonuses or allowances paid or payable to an employee. Under s 14, wages includes fringe benefits and, under s 17, wages includes superannuation contributions.
3. Under s 10 and s 11, wages are taxable wages, relevantly, if:

• the wages are paid or payable by an employer for or in relation to services performed by an employee wholly in New South Wales,
• the employee or the employer is based in New South Wales, or
• the wages are paid or payable in New South Wales. However, exempt wages are not taxable wages. I shall deal with exempt wages below.

1. Division 7 of Pt 3 of the Payroll Tax Act deals with "contractor provisions". Under s 32, a relevant contract in relation to a financial year is a contract under which a person (the designated person) during that financial year, in the course of a business carried on by the designated person, either supplies to another person services for or in relation to the performance of work, or has supplied to the designated person the services of persons for or in relation to the performance of work. However, relevantly for present purposes, a relevant contract does not include a contract of service or a contract under which the designated person during a financial year, in the course of a business carried on by the designated person, is supplied with services for or in relation to the performance of work, where those services are provided for periods that, in the aggregate, do not exceed 90 days in that financial year. [1]
2. Section 33 provides that a person who during a financial year, under a relevant contract, supplies services to another person, or to whom during a financial year, under a relevant contract, the services of persons are supplied for or in relation to the performance of work, is taken to be an employer in respect of that financial year. Under s 34, a person, who during a financial year performs work for or in relation to which services are supplied to another person under a relevant contract is taken to be an employee in respect of that financial year. Amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract are taken to be wages paid or payable during that financial year. [2]

The Administration Act

1. Section 86 of the Taxation Administration Act 1996 (NSW) (the Administration Act) provides that a taxpayer who is dissatisfied with an assessment that is shown in a notice of assessment served on the taxpayer may lodge a written objection with the Commissioner. Under s 91 of the Administration Act, the Chief Commissioner must consider such an objection and either allow the objection in whole or in part or disallow the objection. Under s 94, the fact that an objection is pending does not in the meantime affect the assessment or decision to which the objection relates and tax may be recovered as if no objection were pending. Division 1 of Pt 5, which deals with interest in respect of tax defaults, applies to an amount of tax required to be paid following the determination of an objection. [4]
2. Under s 97 of the Administration Act, a taxpayer may apply to the Supreme Court for a review of a decision of the Commissioner that has been the subject of an objection if the taxpayer is dissatisfied with the Commissioner's determination of the objection. A review by the Supreme Court is taken to be an appeal for the purposes of the Supreme Court Act 1970 (NSW).
3. In such an appeal, the Court is required to consider the correct application of the provisions of the Payroll Tax Act to the relevant materials before the Court and has power to confirm or revoke the assessments or make an assessment or other decision in place of the assessments. [5] Under s 101(1) of the Administration Act, the Court may make any order as to costs or otherwise as it thinks fit. Under s 119(b) of the Administration Act, the Commissioner's notice of assessment is prima facie evidence, for the purposes of a review proceeding, that the amount and all particulars of the assessment are correct. As the appellant, Southern Cross bears the onus of proving, on the balance of probabilities, all matters necessary for the relevant questions to be answered in its favour. [6]
4. For the purposes of the Administration Act, a tax default is, relevantly, a failure by a taxpayer to pay, in accordance with the Payroll Tax Act, the whole or part of tax that the taxpayer is liable to pay. [7] Under s 21, if a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last date for payment until the day it is paid at the interest rate from time to time applying under Div 1 of Pt 5 of the Administration Act.

Grounds of Review

1. The Commissioner assessed Southern Cross for payroll tax on the basis that remuneration paid by Southern Cross to Support Workers in the Relevant Tax Years was subject to payroll tax as wages on the basis that the Support Workers were common law employees of Southern Cross. That is to say, he treated the Support Workers and Southern Cross as being parties to contracts of service. In its amended appeal statement of 25 July 2019, Southern Cross contends that the Support Workers are not common law employees.
2. However, Southern Cross also contends that some or all of the payments made by it to Support Workers in the Relevant Tax Years are not subject to payroll tax because they were made in relation to employment agency contracts and were exempt under s 40 and cl 8 in Sch 2 of the Payroll Tax Act. Southern Cross says, in the alternative, that if its arrangements with Support Workers are not employment agency contracts or are not exempt under s 40 and cl 8 in Sch 2, some of the payments fell within s 32(2)(b)(iii) of the Payroll Tax Act.
3. The issues as to liability raised in the appeal may be summarised as follows: Issue (1)A Whether the arrangements between Southern Cross and the Support Workers are employment agency contracts within the meaning of s 37(1) of the Payroll Tax Act. Issue (1)B Whether, if the arrangements between Southern Cross and the Support Workers are employment agency contracts, the exemption in cl 8 of Sch 2 would apply to the Support Workers. Issue (1)C Whether, if the arrangements between Southern Cross and the Support Workers are employment agency contracts and the exemption in cl 8 of Sch 2 would apply to the Support Workers, the requirement for a declaration to the effect referred to in s 40(2) is essential for the application of the exemption. Issue (2) Whether, if the arrangements between Southern Cross and the Support Workers are not employment agency contracts, the Support Workers are "employees" of Southern Cross by reference to the common law meaning of that term. Issue (3) Whether, if the arrangements between Southern Cross and the Support Workers are not employment agency contracts and the Support Workers are not common law employees, payments to any of those Support Workers satisfy the 90-day rule in s 32(2)(b)(iii) of the Payroll Tax Act. Issue (4) If Southern Cross is liable to pay any payroll tax, whether any amount of interest charged by the Commissioner on that payroll tax should be remitted, in whole or in part, under s 25 of the Administration Act.

Issue (1)A, Issue (1)B and Issue (1)C: Sections 37, 40 and cl 8 of Sch 2

1. Southern Cross contends that the arrangement between it and each Support Worker constitutes an employment agency contract under s 37 of the Payroll Tax Act because it consists of a contract under which Southern Cross procures the services of the Support Worker for a particular Funder. Southern Cross contends that the Funders are its "clients" for that purpose and that s 40(2) applies to some or all of the payments by it to the Support Workers because:

• amounts paid by it to the Support Worker would be exempt from payroll tax under cl 8 of Sch 2 had the Support Worker been paid by the relevant Funder as an employee of the Funder, having regard to the following: ○ each of the Funders, being New South Wales Government entities or Commonwealth Government entities, is "the Crown"; ○ each of the Support Workers works in connection with a public hospital or Local Health District; ○ the work of each of the Support Workers is of a kind ordinarily performed in connection with the conduct of public hospitals or the Local Health District concerned; and ○ each of the Support Workers is engaged exclusively in that kind of work; and
• each of the Funders has given, or has been asked to give, to Southern Cross a declaration as referred to in s 40(2). Accordingly, Southern Cross says, such payments made by it to each of the Support Workers are not wages and are therefore not subject to payroll tax.

1. The Commissioner, on the other hand, contends that the Court should not be satisfied that the Support Workers provide services in an employee-like manner to the Funders such that it could not be said that a Support Worker swells the workforce of the relevant Funder. Accordingly, the Commissioner says, there is no employment agency contract between Southern Cross and a Support Worker.
2. The Commissioner contends that Southern Cross provides services to Participants of a kind that the Funders do not provide and that the Participants are aware that the services are being provided by Southern Cross. The Commissioner disputes that the Funders are "clients" of Southern Cross for the purposes of s 37 of the Payroll Tax Act. Further, the Commissioner says, the Support Workers do not provide their services for public hospitals or Local Health Districts and they do not work in connection with public hospitals or Local Health Districts. Finally, the Commissioner says, the Support Workers do not undertake work of a kind ordinarily performed in connection with public hospitals or Local Health Districts.

Issue (2): Common Law Employment Relationship

1. Payroll tax is payable on "wages" paid or payable to "an employee". The term "employee" is not defined in the Payroll Tax Act and therefore has its general common law meaning. Southern Cross contends that the true character of the relationship between it and each of the Support Workers is not one of employment at common law. Rather, it says, having regard to the totality of the relationship, each of the Support Workers is more properly considered to be an independent contractor rather than a party to a contract of service giving rise to an employment relationship between Southern Cross and the Support Worker.
2. Southern Cross relies on the following indicia as pointing towards an independent contractor relationship and away from a common law employment relationship:

• Each of the Support Workers expressly agreed in writing with Southern Cross that he or she would not receive any of the usual incidents of an employment relationship, such as sick pay, annual holiday pay or redundancy payments, such that they were self-employed;
• Each of the Support Workers performed his or her services away from the premises of Southern Cross and without any presence by Southern Cross at the relevant locations of service;
• there was no control by Southern Cross over any of the Support Workers in undertaking the services performed nor a right to exercise control, in that the overall scope of the services performed by each of the Support Workers is determined by the relevant Funder, the Participant for whose benefit the services are performed and the treating doctor of that Participant and, within that framework, each of the Support Workers determined how to perform the services provided by him or her;
• each of the Support Workers was free to perform similar services for other entities unrelated to Southern Cross;
• none of the Support Workers was required to wear a uniform;
• each of the Support Workers was free to reject engagements, to nominate his or her own working hours and to arrange for another of the Support Workers to undertake some of his or her engagements;
• each of the Support Workers supplied his or her own motor vehicles and mobile telephones and was not reimbursed by Southern Cross for expenses incurred in relation to those matters;

Issue (3): 90-day Rule

1. Alternatively to Issue (1) and Issue (2), Southern Cross contends that some of the payments made by it to Support Workers fall within the exclusion in s 32(2)(b)(iii) of the Payroll Tax Act on the basis that they were payments to Support Workers who provided services to Southern Cross for periods that do not exceed 90 days in any Relevant Tax Year. Southern Cross contends that the provisions should be construed such that the prerequisites of s 32(2)(b)(iii) will be satisfied by reference to numbers of hours worked by Support Workers in a year rather than by reference to the number of days on which a particular Support Worker worked during a year. Southern Cross bases its contention on the premise that 8 hours worked is equivalent to one day.

Issue (4): Remission of Interest and Penalties

1. Southern Cross contends that, to the extent that any payroll tax shortfall remains after the resolution of the three issues set out above, the Court should exercise the discretion conferred by s 25 of the Administration Act to remit the interest charged in full or should at least remit the premium element. Southern Cross asserts that its payroll tax affairs have been audited by the Commissioner on four previous occasions and, on each occasion, the Commissioner confirmed that no additional payroll tax was payable in respect of the Support Workers. Southern Cross contends that its operations and its relationship with the Support Workers have not changed since the Commissioner last found that payments made to Support Workers were not subject to payroll tax. Southern Cross complains that the Commissioner has not given an adequate explanation as to why his position has changed, with retrospective effect. It contends that, in the circumstances, the interest charges, particularly the premium rate, served to act as a penalty.

The Evidence

1. The parties tendered a substantial number of documents evidencing the arrangements, during the Relevant Tax Years, between Southern Cross and Funders, between Southern Cross and Support Workers and between Southern Cross and Participants. The volume of the material was necessary having regard to the period to which the dispute relates, the number of Funders and the number of Support Workers. In addition, affidavit evidence was given by officers and employees of Southern Cross, including Ms Barbara Merran and Ms Deborah Dubos, both of whom were cross-examined.
2. Ms Merran is the Public Affairs Director of Southern Cross. She has been a registered nurse since 1974 and has had experience in providing home care for injured and disabled persons. She and was the founding President and was involved in the establishment of the Attendant Care Industry Association, which is the peak body for attendant care service providers operating throughout Australia. In 1984, Ms Merran and her partner, Mr Alexander Djekic, established the business now operated by Southern Cross and she has been the Public Affairs Director of Southern Cross for more than 30 years and has been a director of Southern Cross since October 1985. Mr Djekic has been the Managing Director of Southern Cross since 4 October 1985.
3. Ms Dubos is the Manager of Community Support and Services for Southern Cross. She has been a registered nurse since 1980 and commenced employment with Southern Cross in October 2000 and, although her title has changed from time to time, her role has been the same since that time. Before 2000, Ms Dubos held various positions in nursing and has numerous qualifications in nursing. From October 1999 to May 2000, Ms Dubos was seconded to the Western Sydney Area Health Service as an Associate Director of Nursing and Community Services. During the Relevant Tax Years, Ms Dubos was the manager of two Southern Cross teams, who reported to her. One was the Service Delivery Team and the other was the Community Support Co-ordinators Team. I shall describe the functions of the two teams below when dealing with the arrangements between Southern Cross and Support Workers.
4. Southern Cross and the Commissioner also adduced opinion evidence. Professor Jeffrey Braithwaite, who is director of the Australian Institute of Health Innovation, prepared two reports for Southern Cross. Associate Professor Christopher Kewley of the University of Newcastle also prepared two reports for Southern Cross. Dr Stephen Duckett, director of the health programme at the Grattan Institute, prepared a report for the Commissioner and Mr Paul Preobrajensky, who is a health service manager with 25 years of experience in the hospital and aged care service sector, also provided a report for the Commissioner. Professor Braithwaite, Assoc Prof Kewley and Dr Duckett also provided a joint report dated 26 October 2020 (the First Joint Report). It is interesting, although not decisive, that the report referred to Participants as "clients". In addition, Assoc Prof Kewley and Mr Preobrajensky provided a joint report dated 28 October 2020 (the Second Joint Report). All four gave concurrent oral evidence. Ultimately, there was no significant difference of opinion and the findings made below are based on their reports.

Overview of the Relevant Arrangements

1. Southern Cross is engaged by Funders to supply Support Workers to perform care services for Participants. That entails a quadripartite arrangement designed to ensure that adequate care is provided for Participants. The four parties to the arrangements are:

• Funders, which require care to be provided to Participants and make payments to Southern Cross;
• Southern Cross, which sources and administers Support Workers to provide care for Participants and makes payments to the Support Workers;
• Support Workers, who provide care to Participants and who are paid by Southern Cross; and
• Participants, who receive care without making any payment for that care.

1. Payments made by Funders to Southern Cross are based on the hours of care provided by Support Workers. Southern Cross categorises Participants into five groups according to their needs and the type of care they receive, as follows:

• Participants with spinal cord injury (SPI);
• Participants with acquired brain injury (ABI);
• Participants in need of home and community care;
• Participants in need of home care packages; and
• Miscellaneous Participants. The first two categories have high needs and make up approximately 66% of total revenue received by Southern Cross from the Funders. The other categories make up approximately 22%, 6% and 6% respectively of total revenue.

1. Southern Cross adduced evidence consisting of documents and files in relation to some 39 Participants, who were selected by way of example as to the arrangements made for the provision of care services to Participants. Those documents and files were the subject of the opinion evidence adduced by both Southern Cross and the Commissioner. The First Joint Report considered a cohort of 38 Participants, and the Second Report considered a cohort of 39 Participants, although the two groups were entirely identical, save for one. The Second Joint Report appears to have included one extra Participant, number 195, who was not dealt with in the First Joint Report. There was clinical complexity in the case of all of those Participants, such that even those classified as "less complex" might have "high needs" and therefore a high risk of decompensating, needing to go into hospital quite quickly, and ending up in an intensive care unit if there was any change in the continuity of the care that they received. Thus, even low-needs Participants would need to interact with medical or allied health professionals on a regular basis by reason of their condition, having regard to "the multi-comorbidities" of such Participants.

Structure of Health Care during the Relevant Tax Years

1. The history of home care provision in New South Wales can be assessed at two levels, being the National or State policy framework and the service delivery framework. It was not until the late 1960s and early 1970s that the Commonwealth adopted a significant interest in home care services, when more generous Commonwealth grants to States and charitable organisations for home care services began. By the early 1980s, policy had begun to be concerned about the burgeoning cost of residential care for the elderly and the increasing preference of many older people to stay at home as long as possible, rather than being forced to move into residential care as their frailty increased. Policymakers became concerned about people in hospitals who were not in an acute-phase but had nowhere else appropriate to go. Those trends lead to an incoherent approach to services at homes, being a Commonwealth-State cost-shared home and community care programme and a parallel development of "community aged care packages" and "extended aged care at home" arrangements, each fully funded by the Commonwealth as part of the Commonwealth's residential aged care funding. Both packages were counted as part of the planning ratios used for residential aged care policy and funding. Policy and funding of aged care continued to have quite a different underlying framework from disability services, including in aged care an emphasis on planning and rationing service access.
2. In New South Wales, provision was much more consolidated, mostly into two not-for-profit organisations, being the Home Care Service of New South Wales (Home Care Service) and the Sydney Home Nursing Service. The former provided "domestic assistance", mostly by non-professional staff, while the latter provided professional nursing services, often with a holistic model. The role of Home Care Service expanded over time away from domestic support to support for "activities of daily living" for older people, constant with the developing Commonwealth support for home care for older people. By 2000, the Home Care Service had become incorporated into the NSW Department of Ageing, Disability and Home Care (ADHC) and the Home Care Service was subsequently privatised. The legislation incorporating the Home Care Service was repealed in 2016. [8] In contrast, the Sydney Home Nursing Service had a religious foundation but, eventually, its services were absorbed into the area health services when the latter were created. In addition to those publicly funded home nursing and home care services, private organisations also provided services to individuals and families with the means to pay for them. Over time, as incomes improved, more private nursing agencies were established to provide private in-home support.

Management of Participants

1. For lower-needs Participants, such as the frail aged, care was sometimes also assessed in the context of a hospital admission. The main avenue through which care was assessed for lower-needs Participants involved the work of Local Health Districts. Local Health Districts are responsible for ensuring that the health care provided in the relevant area is of suitable quality and is safe and effective. All of the Participants referred to in the First Joint Report and the Second Joint Report who are subject to home care packages and some who are subject to home and community care were subjected to an assessment by an aged care assessment team prior to the receipt of services. Aged care assessment teams are part of Local Health Districts.
2. Local Health Districts applied a five-step approach to care co-ordination. First, transfer of care planning began prior to admission for planned patients and as soon as possible after admission for emergency patients. For emergency admissions, a Transfer of Care Risk Assessment had to be completed within 24 hours of the patient being admitted as part of the admission and treatment process. That information was required to be available for the multidisciplinary team or person responsible for planning care co-ordination and patient transfer needs. If the patient being admitted was a Participant with Southern Cross, that would be the first point of the transitioning of responsibility for care between Southern Cross and the treating hospital.
3. Secondly, health professionals from all disciplines were required to work closely together. The multidisciplinary team fulfilled that function and included the patient, the patient's family and any referring agency in the communication and care planning process. If care of the patient was to transition on discharge to a "community agency" that was often the first point of contact between the community agency, such as Southern Cross, and the treating hospital.
4. Thirdly, an estimated date of discharge was established as soon as possible after admission. The establishment of the date of discharge communicates to the patient, carer, staff and referring agency the timeframes for care delivery. If a patient was to be discharged as a Southern Cross Participant, both Southern Cross and the Participant's general practitioner would be informed of the estimated date of discharge.

Arrangements between Southern Cross and the Funders

1. It is necessary to explain in some detail the activities of the Funders, the relationship between Southern Cross and the Funders and the basis on which Southern Cross received payments from the Funders. The following Funders have been identified for the Relevant Tax Years:

• the Lifetime Care and Support Authority of New South Wales (Lifetime Care), which provided approximately 27% of Southern Cross's revenue;
• New South Wales Health through the "Enable" programme (NSW Health), which provided approximately 20% of Southern Cross's revenue;
• the New South Wales Department of Family and Community Services (FACS), which includes ADHC, which together provided approximately 23% of Southern Cross's revenue;
• the New South Wales Department of Education and Communities (DoE), which provided approximately 1% of Southern Cross's revenue;
• the New South Wales Trustee and Guardian (the NSW Trustee), which provided approximately 5% of Southern Cross's revenue;
• the Commonwealth Department of Social Services (DSS), which provided approximately 15% of Southern Cross's revenue;
• the Victorian Transport Accident Commission (TAC), which provided approximately 2% of Southern Cross's revenue;
• commercial insurers, including AAMI, Allianz and GIO, which provided approximately 5% of Southern Cross's revenue; and
• other non-commercial entities, including the National Disability Insurance Agency (NDIA), individual hospitals and charities (such as Vision Australia or Life Without Barriers), which together provided approximately 1% of Southern Cross's revenue.

1. It is necessary say something about each of those Funders. It appears to be common ground that the arrangement as between Southern Cross, on the one hand, and each of the Funders, on the other, was relevantly the same throughout each of the Relevant Tax Years.

Lifetime Care

1. Lifetime Care is a statutory corporation established under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (Lifetime Care Act), which is responsible for administering the Lifetime Care and Support Scheme (the Lifetime Scheme), a compensation scheme for the lifetime care and support of persons injured in motor vehicle accidents in NSW. The Lifetime Scheme looks after long-term care needs for people with the most severe road or workplace injuries and supports people returning to work, with the aim of enhancing injured people's quality of life. While a person is a participant in the Lifetime Scheme, Lifetime Care pays for all of the reasonable expenses incurred by or on behalf of the person in relation to the assessed treatment and care needs of the person, including attendant care services.
2. Lifetime Care's annual reports during the Relevant Tax Years recorded the following about the activities of Lifetime Care:

• the "main goal" of Lifetime Care was to "ensure Scheme participants are treated with respect and dignity and given the best opportunities and choices in achieving quality of life";
• Lifetime Care "seeks to be an international leader in the delivery and development of disability services";
• once "eligibility has been confirmed", Lifetime Care "provides treatment and support as it is needed throughout the person's life. The injured person is supported by a coordinator who assists them to plan their rehabilitation and care"; and
• Lifetime Care "support(s) injured people to achieve an optimal quality of life by providing lifelong treatment, rehabilitation and care for people".

1. The functions of Lifetime Care did not extend to the provision of attendant care services or any medical or allied health treatment. Thus, under the Lifetime Care Act, Lifetime Care's functions in relation to the provision of care and other services were expressed to be "to monitor those services", "to provide support and funding for programs that will improve delivery of those services" and "for research and education". [9] The assessed treatment and care needs were to be provided only by a provider approved by the Authority. [10] Southern Cross was one such approved provider.
2. During the Relevant Tax Years, there were approximately 600 to 1,100 Participants in the Lifetime Scheme, with the majority receiving attendant care. Throughout the Relevant Tax Years, Lifetime Care spent approximately $5 million to $8 million annually on staff salaries, and approximately $55 million to $110 million annually on Participants' care and support (of which approximately 40% was for attendant care services). Other expenses included modifications to a Participant's home, equipment required by participants, vehicle modifications, and educational support.

NSW Health

1. The term "NSW Health" described various bodies that were under the control of the Minister for Health or Secretary of Health. It is not a legal entity or person. Agencies and statutory corporations within "NSW Health" were distinct and interacted through formal arrangements. Some, such as HealthShare NSW, acted through "Service Compacts", instruments of engagement that detailed service responsibilities and accountabilities. The NSW Health service delivery model could be characterised as a "purchaser-provider split".
2. NSW Health encompassed both the NSW Ministry of Health and a number of state-wide or specialist health services, including the Health Administration Corporation, created under s 9 of the Health Administration Act 1982 (NSW). The name "Enable" was the branding for a set of services provided by HealthShare NSW, which was part of the Health Administration Corporation. Those services related to the provision of equipment and services to ventilator-dependent people in NSW with chronic health conditions or disabilities to assist them with mobility, communication and self-care. NSW Health had over-arching responsibility for public hospitals in NSW, through the Local Health Districts.
3. NSW Health was the largest health care system in Australia and one of the largest in the world. During the Relevant Tax Years, NSW Health had more than $10 billion in annual employee costs, more than 75% of which related to costs of employees of the NSW health system. During the Relevant Tax Years, NSW Health: 1. employed more than 100,000 staff performing work from "acute hospital care to policy development, health promotion and community health initiatives"; 2. employed more than 13,000 "hospital support workers" and more than 8,000 staff providing "hotel services"; 3. paid fees to Visiting Medical Officers providing clinical services across Local Health Districts and hospitals; 4. performed functions including "promoting, protecting, developing, maintaining and improving the health and wellbeing of the people of NSW"; 5. by 2015, cared for more than 21,000 people through the "Hospital in the Home" programme; and 6. by 2015, served more than 65,000 meals to patients in public hospitals each day.
4. The "mission" of HealthShare NSW was to "support the delivery of patient care through the provision of State-wide services, and to be responsive to the needs of hospitals, clinicians and health managers". HealthShare NSW worked "closely with Local Health Districts and Health Agencies to build a framework for meaningful customer involvement in all states of service planning and delivery".

FACS (including ADHC)

1. Prior to the Relevant Tax Years, ADHC was a New South Wales Government department existing under the Public Sector Employment and Management Act 2002 (NSW). Between 2009 and April 2011, ADHC was an agency within the NSW Department of Human Services. From April 2011, just before the start of the first of the Relevant Tax Years, until after the end of the last of the Relevant Tax Years, ADHC was an agency within FACS. FACS was a New South Wales Government department existing first under the Public Sector Employment and Management Act 2002 (NSW) and then under the Government Sector Employment Act 2013 (NSW). Other divisions or agencies within FACS included Housing NSW, Community Services and Corporate Services. From 2014, FACS was responsible for administering the Disability Inclusion Act 2014 (NSW).
2. ADHC described its primary goal as being to "create, promote and sustain opportunities and services which allow people with disabilities, older people and their carers to participate fully in community life". That goal was expressly stated in the contract between ADHC and Southern Cross. According to Annual Reports published by FACS during the Relevant Tax Years, FACS:

• worked to "support people with disability to realise their potential" and "support seniors to participate fully in community life";
• employed more than 20,000 people, most of whom worked directly with people receiving services from FACS. Frontline roles included thousands of nurses, allied health workers, care workers, community care workers and disability support workers; and
• spent approximately $5 billion annually delivering services across NSW, with the largest category of expenditure being the delivery of FACS's major services and programmes including the disability services, Commonwealth Home and Community Care, Community Care Supports, many of those programs being delivered by non-government organisations on behalf of FACS.

1. ADHC/FACS directly operated the Home Care Service of New South Wales (Home Care Service), a statutory corporation constituted under s 4(1) of the Home Care Service Act 1988 (NSW), which was the largest provider of home and community care services in NSW with a staff of more than 4,300 people. A large part of its funding was from the Home and Community Care Program (HACC), from which Southern Cross also received funding. The Home Care Service provided domestic assistance and support in the home for activities of daily living, such as showering and toileting, to those who required it, provided mostly by nonprofessional staff. Many of those services were identical to the care services provided by Support Workers. Southern Cross contends that part of the role and function of ADHC/FACS was providing health and care services, including health and care services of a kind that Support Workers provided to Participants.

DoE

1. The DoE was a New South Wales Government department existing under the same legislation as FACS. During the Relevant Tax Years, the DoE was aiming to ensure that 60% of school students with a disability had a personalised learning and support plan by 2020. The support in schools of students with a disability was a priority for the DoE and additional assistance for students with a disability was provided through the DoE's "Integration Funding Support Program" and the "Every Student, Every School" strategy. The DoE had a range of initiatives to train its employee teachers to better support students with a disability. Within the DoE, the "Disabilities Program Directorate" worked with clinical and community support services to provide an individualised learning programme for children who would otherwise be unable to attend school. Southern Cross contends that employees within the Directorate were plainly involved in the provision of care services to relevant Participants, even if they did not provide the care themselves.
2. The DoE was involved in the provision of care to a small number of Participants who were children requiring Support Worker services while they were at school. Southern Cross entered into agreements with the DoE in relation to individual Participants who required Support Worker services to attend school. The Commissioner contends, accordingly, that the evidence does not permit the Court to find that there is an employment agency contract between Southern cross and Support Workers undertaking work funded by NSW Education and that such evidence as there is suggests to the contrary.

NSW Trustee

1. The NSW Trustee was a statutory corporation constituted under s 5 of the NSW Trustee and Guardian Act 2009 (NSW) (the NSW Trustee Act). Under s 11(2) of the NSW Trustee Act, the NSW Trustee could be appointed to act in the capacity of a financial manager of the estate of a managed person. In doing so, it could do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of that function. [15] Its role was typically to provide trustee, guardian or financial management type services in respect of private persons.
2. Southern Cross arranged Support Worker services for a number of Participants whose affairs were managed by the NSW Trustee. No contractual materials between Southern Cross and the NSW Trustee are in evidence and there is no evidence as to the basis on which it provided funding for those particular Participants. Rather, Southern Cross's arrangements with the NSW Trustee appear to have been made on a Participant-by-Participant basis.
3. The Commissioner contends that the role of the NSW Trustee provided no support for a conclusion that the NSW Trustee was in the business of providing in-home attendant care services, nor any care services. He asserts that the evidence does not support a conclusion that there was an employment agency contract between Southern Cross and the Support Worker undertaking work paid for by the NSW Trustee. Rather, the usual and expected role of the NSW Trustee as a trustee, guardian or financial manager suggests to the contrary.

DSS

1. DSS is a Department of State of the Commonwealth Government. DSS was preceded by both the Commonwealth Department of Health and Ageing and the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs. Towards the end of the Relevant Tax Years, some relevant functions of DSS were taken on by the Commonwealth Department of Health. The departments were established by Administrative Arrangements Orders issued from time to time throughout the Relevant Tax Years. DSS had staff employed under the Public Service Act 1999 (Cth). For convenience, all are referred to as "DSS" or "the department".
2. During the Relevant Tax Years, the Commonwealth was responsible for aged care, and for the operation of the Aged Care Act 1997 (Cth) (the Aged Care Act). Under the National Health Reform Agreement, the Commonwealth had full responsibility for funding, policy, management and delivery for a consistent and unified aged care system covering basic home care through to residential care.
3. In its annual reports, DSS stated that:

• its mission was to "improve the lifetime wellbeing of people and families in Australia";
• its policies and services "look after families, children and older people…enhance the independence and wellbeing of people with high needs";
• 30,000 children and families received disability packages, and approximately 500,000 older people benefited from the Commonwealth HACC programme;
• over 1 million older people received "Aged Care Sector services";
• the Australian Government is working with older people, their families, carers, aged care service providers and health professionals "to deliver the care and services people need to retain their independence and wellbeing for as long as possible as they age";
• it had an objective to "provide basic maintenance, support and care services through the HACC Program"; and
• it had as an objective "[t]he Home Care Packages Programme provides coordinated packages of services tailored to meet individuals' specific care needs including care services, support services, clinical services and other services to support old people to remain living at home". DSS was involved in the HACC programme, which provided services to the frail aged and the disabled throughout the Relevant Tax Years and aimed to "provide a comprehensive coordinated and integrated range of Basic Maintenance, Support and Care services".

TAC

1. TAC is a Victorian statutory corporation established by s 10(1) of the Transport Accident Act 1986 (Vic) (the TA Act). TAC managed a transport accident compensation scheme for people injured as a result of transport accidents in Victoria and who were entitled to compensation under the TA Act. It was effectively the Victorian equivalent of Lifetime Care, in that it was the administrator of a transport accident compensation scheme, [17] and a provider of compensation rather than a provider of care [18] and could authorise a person to provide services. [19] The scheme extended to medical, disability and rehabilitation services. Southern Cross was appointed as a service provider to eligible persons under the transport accident compensation scheme. There is no evidence that TAC itself provided care of the kind provided by Support Workers.
2. In its annual reports, TAC stated that it:

• supports people injured in transport accidents that are directly caused by the driving of a car, motorcycle, bus, train or tram;
• continuously developed and refined how it cares for its "clients";
• Provided income support, rehabilitation and disability services, return to work programmes, attendant care, allowances for parents to visit dependent children in hospital, travel costs to and from medical appointments and equipment or aids such as wheelchairs;
• funded more than $1 billion in support services and benefits annually;
• operated: ○ a "Return to Work" team (with rehabilitation specialists); ○ a "client assist team", who dealt with approval of services; ○ an "independence branch", who "works with clients who are more seriously injured to help them live independent lives"; and ○ a "service program" focussed on improving TAC's service to clients; and
• incurred approximately $150 million in administration costs annually, including employee costs.

1. Southern Cross was a member of TAC's Community Care and Support Services Panel. As a member of the panel, a Participant under TAC's scheme could select Southern Cross as his or her service provider. Southern Cross and TAC were parties to a "Services Agreement: Community care and support services (attendant care)" made in July 2007. The agreement was immaterially amended in September 2007 and was further amended in October 2009. That amendment introduced further training requirements for Support Workers, by reference to "TAC Recognised Training Courses", and further reporting and record-keeping requirements. Southern Cross's registration with TAC continued throughout the Relevant Tax Years.

NDIA

1. The National Disability Insurance Agency (NDIA) is a Commonwealth agency whose role is to administer the NDIS. The NDIS, as its name suggests, is an insurance scheme much like that provided by Lifetime Care in NSW and the TAC in Vic, except that it is not tied to transport accidents. Although the NDIS had begun operating at trial sites it was not fully operational before the end of the last of the Relevant Tax Years. A proportion of NDIS Participants required Support Worker services.
2. The National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) set out the role of the NDIA. The NDIA's business included assessing, coordinating and assisting in the provision of care to disabled persons. For example, s 6 of the NDIS Act provided that its objects included the following: "Agency may provide support and assistance To support people with disability to exercise choice and control in the pursuit of their goals, the Agency may provide support and assistance (including financial assistance) to prospective participants and participants in relation to doing things or meeting obligations under, or for the purposes of, this Act. Note: For example, the Agency might assist a participant to prepare the participant's statement of goals and aspirations by assisting the participant to clarify his or her goals, objectives and aspirations." Section 13 provided that the NDIA "may provide general supports to, or in relation to, people with disability who are not participants". Section 15(2) provided that the NDIA "must use its best endeavours to provide timely and accurate information to people with disability and other people in order to assist them in making informed decisions about matters relevant to the National Disability Insurance Scheme".
3. For a given Participant, part of the NDIA's role was to "ask questions about how you are going in different areas of your life, what goals you would like to achieve and what kind of help and support you need", in order to help NDIA to develop a plan that would provide "the right support" for the Participant. Subsequently, the NDIA would conduct plan reviews. The NDIA's 2016 annual report stated that:

• NDIS "is a new model of funding and social support for people with disability in Australia";
• NDIS had "the aim of providing an ordinary life for its participants";

Arrangements between Southern Cross and Support Workers

1. Southern Cross's Service Delivery Team was responsible for the recruitment of Support Workers and co-ordinated the rostering of Support Workers. Ms Dubos was sometimes involved in the recruitment interview process, especially where the recruitment was for a Participant who had high needs or for whom providing care was otherwise challenging. The Service Delivery Team operated a fortnightly roster for Support Workers. For most of the Relevant Tax Years, shifts were confirmed with Support Workers by telephone.
2. The members of Southern Cross's Community Support Co-ordinators Team were registered nurses and endorsed enrolled nurses. Ms Dubos nominated a Community Support Co-ordinator for each Participant, usually on the basis of location but sometimes on the basis of a particular level of skill. Each Community Support Co-ordinator was responsible for a number of Participants. The Community Support Co-ordinators worked from home and were provided with a telephone, laptop and remote access to Southern Cross's database. The Community Support Co-ordinator for a particular Participant was typically responsible for:

• discussing with the Participant, and sometimes with the family or treating team of the Participant, the Care Needs Report for the Participant that was put together by the Funder, the ACAT or the discharging hospital;
• entering the care requirements in the Care Needs Report into Southern Cross's data system, which resulted in a "Duties Plan";
• attending the home of the Participant to make an assessment of any health and safety risks;
• monitoring the care provided by Support Workers to Participants, including progress against identified desired outcomes and conducting reviews, for high-needs Participants, every 6 or 12 months; and
• arranging training for Support Workers where a new care service or new piece of equipment was introduced.

1. The Duties Plan was developed by a registered nurse from Southern Cross prior to the commencement of delivery of services to the Participant. It outlined the expected outcomes of the requested care and the tasks, duties and interventions required to meet the care and service needs of the Participant, within the parameters of the funding programme. Each Support Worker was provided with a Duties Plan in relation to the particular Participant to whom the Support Worker was allocated. The Support Worker was required to follow the Duties Plan and to notify Southern Cross of any material deviations from it.

Arrangements between Southern Cross and Participants

1. When a new Participant became involved with Southern Cross, the intended Support Worker visited the Participant to ensure that the Participant and the Support Worker were well matched and to ascertain whether the Participant and Support Worker wished to commence the provision of services. Support Workers were not paid for attending such a meeting and either the Support Worker or the Participant could refuse the other.
2. The arrangements between Southern Cross and Participants were evidenced by a "Service User Information Booklet" (the User Booklet) in which Participants were referred to as "service users". The User Booklet stated that it was intended to assist the Participant to understand the services provided by Southern Cross and to explain how to contact Southern Cross, with whom the Participant would be dealing on a routine basis. Further, it aimed to tell Participants what Southern Cross and Support Workers would and would not do and to explain the respective rights and responsibilities of Participants and Support Workers. It said that, after the relevant Participant had read the User Booklet, the Participant would be asked to sign a "service agreement" to confirm receipt and understanding of the information about the relevant programme and services.
3. The "service agreement" was at the end of the User Booklet (the Service Agreement). It was in the following terms: "SERVICE AGREEMENT I, __________________ (Service User/Carer/Advocate) acknowledge that I have read, understood and agree with the following documentation. Tick appropriate boxes and write the Program type: □ Program Description ____________ □ Model of Service Delivery □ Rights & Responsibilities of Service User □ Service Delivery Plan □ Community Aged Care Package Agreement □ Charter of Rights &Responsibilities for Community Care □ Service Timetable □ Request for Services (Private Services) □ LTCS Participant Attendant Care Agreement □ Minimum Data Set &Information Collection Consent □ Client Information & Referral Record □ Information in regard to Advocacy □ Information in regard to Conflict/Complaint □ Child Protection Policy □ Other relevant documents". The Service Agreement contained provision for signature on behalf of the Participant and on behalf of Southern Cross.
4. The User Booklet stated that Southern Cross provided services to all members of the community, including those who were disabled of any age, frailty, injury, including brain and spinal cord injuries, and those requiring palliative care, post hospital discharge care and ventilation. It stated that Southern Cross was funded for various programmes by different organisations and government departments and that "in many instances" there was no cost to the Participant for services provided by Southern Cross.

Examples of the Services Provided by Support Workers

1. It is desirable to say something about the specific Participants whose files were the subject of the opinion evidence. The material that follows is derived from the First Joint Report and the Second Joint Report. I shall deal with Participants by reference to the Funder involved for the relevant Participant. However, before doing so, it is desirable to make some general observations.
2. As I have said, each Support Worker was provided with a Duties Plan in relation to the particular Participant to whom the Support Worker was allocated. The Support Worker was required to follow the Duties Plan and to notify Southern Cross of any material deviations from it.
3. The services provided by Southern Cross are fairly characterised as being quite "diverse", in so far as they were provided for many Participants who had very complex health care needs and other Participants who had needs of lower complexity. Since Support Workers were not registered health professionals, they primarily provided care and support to Participants rather than health care assessment and management. However, in some cases, Southern Cross engaged nurses as Support Workers to provide a higher level of health care where needed. Such Support Workers could always connect to public hospital and Local Health District community services, such as ACATs or hospital-based clinical nurse specialists or clinical nurse consultants, as necessary.
4. Integrated care entailed the provision of seamless, effective and efficient care that reflected the whole of a person's health and disability needs in partnership with the Participant and his or her carers and family. Southern Cross crosses the "health-disability divide" through arranging integrated and person-centred health care in the community and arranges a "step down care option" allowing for early discharge and safe transitioning of patients from hospital settings, allowing for care co-ordination of complex patients who would otherwise occupy expensive beds to occur earlier.
5. If the services of Support Workers provided by Southern Cross were no longer available, the family and friends of a Participant would be called upon to provide the necessary care or residential aged and specialist disability accommodation outside the home or residence of the Participant. Where funding was from the health budget of the State of New South Wales, it is likely that such Participants would continue to be the responsibility of the NSW health system, which would need to develop appropriate alternative responses that might be home-based or "in congregate settings". Clients with high complexity needs, such as those who are ventilator dependent, may have to be accommodated in hospital settings, perhaps in specialist non-acute wards. Where funding was from compensation schemes or from the NDIS or sources other than the NSW Health budget, it is likely that a mix of services might evolve to manage Participants of lower complexity. Professor Braithwaite, Assoc Prof Kewley and Dr Duckett expressed the view that it was unlikely that lower complexity Participants would be re-accommodated into public hospitals unless there was nowhere else for them to go.

Lifetime Care

1. One example involving Lifetime Care related to a Participant known as "Participant 2". Following a motor vehicle accident in 2008, Participant 2 suffered a serious spinal injury, and became dependent on a wheelchair, ventilator and other equipment. Lifetime Care assessed Participant 2 as requiring 28 hours of Support Worker services (24 hours per day each day, with four hours of 2 Support Workers). Participant 2's Case Manager would regularly reassess the requirements of Participant 2, and submit an "Attendant Care Service Request" and "Care Needs Report" to Lifetime Care. If Participant 2 wished to make any changes to his services, he was directed to contact his Case Manager or LTCS coordinator, not Southern Cross.
2. Participant 2's Attendant Care Service Requests included detailed timetables of the care required by Participant 2. A sample provided that, on Mondays, between 7am and 8am, the Support Worker was to administer "meds from Webster pack; prepare & feed [Participant 2] breakfast (as required); clean up post meal prep & clean dishes (as required); set up items required for morning personal care routine; swap overnight drainage bottle to day bag".
3. Once assessed, Lifetime Care referred Participant 2's need for attendant care services to Southern Cross, which would then undertake a process of "new programs management". Southern Cross would take the Care Needs Reports, and the Attendant Care Service Requests (including the timetable) and use it to create Support Worker "Care and Service Plans" and "Duties Plans". Southern Cross would also undertake an environmental hazards assessment of the home environment for workplace health and safety purposes.
4. Over time, Southern Cross would conduct periodic reviews and evaluations with Participant 2. Participant 2 was able to reject a Support Worker for any reason, and such a Support Worker was subsequently blocked from providing care to Participant 2.
5. Southern Cross contends that the evidence summarised above makes it clear that part of the role and function of Lifetime Care was to provide health and care services, including health and care services of the kind that Support Workers provided to Participants. Due to the nature of their conditions, all Participants on the Lifetime Care Scheme were initially patients in a hospital.
6. Thus, Participant 2 was a patient at the Prince of Wales Hospital Spinal Injuries Unit. Prior to discharge, Participant 2's multidisciplinary treating team held a number of meetings attended by representatives from the hospital treating team, Lifetime Care and Southern Cross. Topics discussed at such meetings included Participant 2's routines, staffing updates, home modifications, and equipment. Upon his eventual discharge, that hospital provided a detailed discharge summary, which included details of his medications, functioning, requirements for management (such as bowel, bladder, skin and wounds), equipment requirements, and particular risks (such as autonomic dysreflexia).

NSW Health

1. Southern Cross adduced evidence of documents in relation to a sample Participant known as "Participant 58", who was part of the Enable Children's Home Ventilation Program. In 2011, Participant 58 was three years old, and an in-patient at the Children's Hospital, Westmead. Participant 58 required a ventilator, and also had a catheter and a PEG feeding tube. NSW Health, through the Enable programme, confirmed that Participant 58 required Support Worker care for active night shifts, 12 hours in duration, seven days each week. Having regard to the nature of their conditions, all Participants on the Enable programme were initially patients in a hospital. The Children's Hospital, Westmead developed a home oxygen management plan that was implemented by Support Workers after Participant 58's discharge. The hospital also put together the risk assessment for Participant 58's home.
2. Prior to discharge, a number of "case conferences" were held at the Children's Hospital, Westmead. The case conferences for Participant 58 included input from Southern Cross, Enable, ADHC, primary care providers such as General Practitioners, FACS, the public hospital and allied health professionals. One outcome of the conferences was a plan for wound dressings for Participant 58. The plan was for Southern Cross's registered nurse to liaise with and obtain support from Clinical Nurse Consultants in community health, and at the Children's Hospital, Westmead as needed.
3. Southern Cross's usual "new programs management" process for high-needs Participants, as set out above, applied to all Participants on the Enable programme. In particular, that involved training by the Participant's hospital treating team. For Participant 58, Support Workers undertook theory training followed by "buddy shifts" at the Children's Hospital, Westmead in 2011. Theory training included "Introduction to Long Term Ventilation" from a Clinical Nurse Consultant, "Social Implications of caring for a [long term ventilated] child" from a social worker, manual handling training from a physiotherapist, and ventilator training with a nurse from the Hunter Baillie Ward, a general medical ward at the Children's Hospital, Westmead. "Buddy shifts" included hands-on experience with hospital nursing staff, and manual handling training from hospital allied health staff. Closer to discharge, training included "buddy" time at home and an overnight shift with nursing support from the Children's Hospital, Westmead.

FACS (including ADHC)

1. For higher needs Participants, FACS was actively involved in determining the care required. Participants involved in FACS's programmes, such as the ACP, HNP or CCSP, underwent a "High Level Personal Care Needs Assessment" performed by the Attendant Care & Physical Disability Unit (ACPDU) of FACS. For some Participants, FACS would also provide "Assets", including motor vehicles and equipment, for use in connection with services provided to Participants.
2. When Southern Cross was selected by FACS or the Participant, Southern Cross would then arrange for Support Workers to provide the care for which a need had been assessed. That involved the creation of Support Worker "Care and Service Plans" and "Duties Plans", hazards assessments, and periodic evaluations.
3. Southern Cross adduced evidence relating to "Participant 74", who was part of FACS's ACP and HNP programmes. Participant 74 was a 52-year-old man with quadriplegia following an accident as a young man, who required full assistance for all of his activities of daily living (ADLS), including toileting, showering, drying, grooming, dressing, meal preparation, and feeding. The ACPDU assessed Participant 74 as requiring 51.25 hours of Support Worker care each week. Participant 74 received 26.5 hours under the ACP programme, and 24.75 hours under the HNP programme. Participant 74 was assessed as predominantly requiring assistance with personal care, with two hours each week allocated to domestic assistance. Participant 74 had previously been receiving more limited hours of care on the HACC programme through the Home Care Service. The HACC programme was limited to 15 hours of care each week and, when that was found to be insufficient, and the Home Care Service advised that it could not "offer increased personal care hours" to Participant 74, he was assessed by the ACPDU for the ACP and HNP programmes, and transitioned to Southern Cross arranging his care. Participant 74 also received a powered wheelchair through the Enable programme following an assessment by an occupational therapist. He also had a care manager who was independent of Southern Cross.
4. The ACPDU assessment included an allocation of hours and task descriptions, but noted that a Participant could adjust his or her hours and routine to suit his or her needs best within the overall approved allocation. For example, Participant 74's evening care routine involved 2 hours of care, in which a Support Worker was to: "Assist [Participant 74] with toileting, reheat dinner, assist [Participant 74] with feeding/drinking, assist with washing and drying mouth and face, assist with grooming, change into night clothes, transfer into bed upon request, charge wheelchair/hoist, tidy kitchen/bathroom, general DA as time permits". If a Participant wanted to increase the hours of care being provided, he or she was directed to submit a request to the ACPDU.

DoE

1. Southern Cross adduced evidence consisting of materials in relation to Participant 9, who commenced school in 2011. Participant 9 had a tracheostomy tube, used a ventilator, and had a PEG feeding tube. While not at school and in the years before starting school, many students like Participant 9 also received Support Worker services through the Enable Children's Home Ventilation Program.
2. Under its agreements with Southern Cross, the DoE required that the relevant school: 1. knew the Participant was on the Children's Home Ventilation Program; 2. had copies of the Participant's health and medical reports; 3. had developed a health care plan for the Participant's school placement; and 4. requested that Southern Cross provide Support Worker services for the Participant at school in accordance with the Participant's care needs assessment. For each Participant, the DoE nominated a contact. In the case of Participant 9, this was a DoE "Coordinator, Disability Programs". The Participant's assessed care needs formed the basis of Southern Cross's service plans for Support Workers. Due to the serious nature of their injuries, all DoE Participants were initially patients in a hospital.
3. Southern Cross followed its usual process for high-needs Participants for DoE Participants, including "new programs management", though in many cases Southern Cross was already involved in the provision of services to Participants through an Enable programme before the Participants commenced school.
4. For Participant 9, the relevant children's hospital worked with the school in developing a care plan for school hours. The hospital representatives attended the school and provided training to the school staff and to the Support Workers engaged by Southern Cross that were chosen to support the child at school.
5. Like all high-needs Participants, DoE Participants would need to attend a hospital outpatient clinic regularly for the rest of their lives, and medical treating teams would organise additional training for Support Workers as needed.
6. The Participant files in evidence include three referrals for service from DoE to Southern Cross requesting Southern Cross to assess the health care needs of a school-aged Participant and, following assessment, to provide Support Worker support at school during school hours. All three Participants appear to be existing Southern Cross Participants who are tracheostomy dependent and were previously funded by the Enable programme. The "program" funded by DoE is described as being "to assist young people with disabilities to attend school who would otherwise be unable to attend".

NSW Trustee

1. Southern Cross adduced evidence in relation to Participant 66, a 48-year-old woman who received Support Worker services for 24 hours each day pursuant to a programme operated by the NSW Trustee. Participant 66 had an ABI resulting in quadriplegia, epilepsy, bilateral incontinence, communication difficulties and diabetes. Prior to receiving Support Worker care through Southern Cross, Participant 66 lived in a rehabilitation centre for 19 years. Discharge and transfer of care from the rehabilitation centre to Participant 66's home required a "joint interagency multidisciplinary team in planning for the safe transfer of her care to the community". Due to the complexity of her needs, a Transfer of Care Risk Assessment (TCRA) or equivalent would have been completed by her treating clinical team. Support Workers provided services to Participant 66 including medication management, management of hygiene, management of spasticity, maintenance of respiratory function, management of skin integrity, monitoring of diabetes, and prevention of infection. The Support Workers also assisted with the activities of daily living.
2. The only documents related to the NSW Trustee are the documents produced by Southern Cross in relation to Participant 66. Of those documents, the only ones in which the NSW Trustee is mentioned are the five invoices addressed to the NSW Trustee and issued by Southern Cross in 2012. Thus, there is no document to suggest that the NSW Trustee plays any role in the services provided to Participant 66 by Southern Cross and the Support Workers other than the funding of those services in its capacity as trustee, guardian or financial manager of the Participant, and thereby on the Participant's behalf. The documents do not suggest that there was any interaction between the Support Worker and the NSW Trustee or its staff, that there was any involvement of the NSW Trustee in planning, delivering or reviewing the services provided to Participant 66, that there was any communication between either Southern Cross or the Support Worker with the NSW Trustee other than the invoices, or that there was any use of the NSW Trustee's facilities or equipment.

DSS

1. Southern Cross adduced evidence in relation to Participant 13. In 2014, Participant 13 was referred by her geriatrician to the Westmead ACAT as requiring assistance with personal care, housework and shopping. Participant 13 had a range of complex conditions, including cognitive impairment, depression, hypertension, poor vision and chronic pain. The Westmead ACAT subsequently undertook an assessment, which identified that Participant 13 required assistance with self-care, movement activities, health care tasks, transport, domestic assistance, meals and home maintenance. She was recommended for a HCP "level 3-4", but it was noted that with family support, a HCP "level 1-2" was appropriate. Her assessing team included a geriatrician, a registered nurse, and a physiotherapist. Following the assessment, Southern Cross was appointed to arrange services for Participant 13, and followed its usual process, including the creation of Support Worker "Care and Service Plans" and "Duties Plans", hazards assessments and periodic evaluations.

TAC

1. Southern Cross adduced evidence relating to Participant 7, who was a TAC Participant following a traffic accident in which he sustained a spinal cord injury and became paraplegic. Southern Cross contends that, in the circumstances outlined below concerning Participant 7, the provision of care of the kind provided by Support Workers was part of TAC's operations.
2. In May 2011, following recommendations from an occupational therapist, TAC determined that Participant 7 required 510 hours of personal care in each 28-day billing period (approximately 18 hours per day), including 224 hours of active overnight care (8 hours per night). Those needs were regularly reassessed. There was an updated assessment in December 2011 approving the same number of care hours. TAC's assessments formed the basis of Southern Cross's service plans for Support Workers.
3. Consistent with its statutory functions, TAC also developed "Independence Plans" for TAC Participants. Participant 7's Independence Plan was developed in consultation with Participant 7 and his treating medical team. In notifying Participant 7 of the plan, TAC noted that Participant 7's "Support Coordinator" at TAC will "continue to work with you to coordinate your Independence Plan", and that TAC has "approved your services to support you to meet your needs and achieve your goals". Participant 7's TAC Support Coordinator also undertook annual reviews of Participant 7.

NDIA

1. Southern Cross adduced evidence in relation to Participant 12, who commenced on the NDIS in November 2015. Participant 12 had a range of conditions including ependymoma (a type of tumour that can form in the brain or spinal cord), epilepsy, depression and osteoporosis. Participant 12's initial NDIS plan was for the period from 20 November 2015 to 24 April 2016. The NDIA approved Participant 12 to receive a set level of funding for "assistance with daily life at home in the community, education and at work", and "improved daily living skills". The funding was to be paid by the NDIA directly to Participant 12's support provider. Those services included support with personal care, assistance with meal preparation, and assistance with feeding.
2. Where Support Worker services had been approved by the NDIA, and Southern Cross was selected as a provider, Southern Cross would work with the Participant to develop his or her care plan. If an NDIS Participant's circumstances changed after his or her plan was approved, he or she was directed to contact the NDIA.
3. The NDIA developed a "National Disability Insurance Scheme Model Agreement" for use by Participants and providers. Consistently with the philosophy underlying the NDIS, the NDIA expected Southern Cross to "work with a [P]articipant to establish written or verbal agreement about the nature, quality and price of supports to be provided". Support was then to be provided in accordance with that agreement.
4. NDIS Participants requiring Support Worker care had high needs. Southern Cross adduced evidence concerning Participant 12, who, in 2015, had been an in-patient in John Hunter Hospital, a public hospital in Newcastle, before being transferred to the hospital's rehabilitation centre at Rankin Park. Prior to discharge, Participant 12's care needs had been assessed by the hospital. Upon discharge, follow-up with his general practitioner and a palliative care team was arranged by the hospital. The assessments by the NDIA and the hospital formed the basis of Southern Cross's service plans and Duties Plans for Participant 12. Southern Cross followed its usual processes, including in relation to risk assessment and periodic reviews. After discharge from John Hunter Hospital, Participant 12 had ongoing contact with the hospital's occupational therapist, rehabilitation specialist, and neurologist. He also had contact with an oncologist and a palliative care specialist at Calvary Mater Hospital, another public hospital in Newcastle.

Issue (1)A: Employment Agency Contract

1. In the context of s 37 of the Payroll Tax Act, one person (employment agent) provides the services of a second person (service provider) to a third person (client) in consideration for the payment of a fee or other remuneration by the third person to the first person. The term "client" is probably more frequently used in the context of a person who is the recipient of professional services such as legal services or accounting services. However, it is clear enough that s 37 is not to be construed so narrowly as to limit the third person, the client, to a person who receives such services. On one view, of course, the services of a Support Worker may well constitute professional services. It would not be difficult to regard the recipient of the services provided by a Support Worker pursuant to a contract between the recipient and the Support Worker as the client of the Support Worker.
2. An employment agency contract is a contract under which a person, described as an employment agent, procures the services of another person, described as a service provider, for a client of the employment agent. In the present circumstances, Southern Cross contends that its arrangements with Support Workers constituted a contract under which Southern Cross, as employment agent, procures the services of a Support Worker, as service provider, for a Funder, as client, of Southern Cross, as employment agent. It is clear enough that, for the purposes of the Payroll Tax Act, Southern Cross procures the services of a Support Worker. The question, however, is whether Southern Cross does so for a Funder, as the client of Southern Cross. The Commissioner contends that Southern Cross procures the services of a Support Worker for a Participant, as the client, rather than for a Funder, as the client.
3. No payment was made by a Participant to Southern Cross as consideration for the services provided by a Support Worker. Nevertheless, there was a contractual relationship between Southern Cross, on the one hand, and a Participant, on the other, as evidenced by the Service Agreement in the User Booklet. Further, there was a clear contractual arrangement between Southern Cross, on the one hand, and the Support Worker, on the other. In addition, there was a clear contractual arrangement between Southern Cross and the Funder. Payments were made by the Funder to Southern Cross pursuant to the contractual arrangements between them. Similarly, payments were made by Southern Cross to the Support Worker under the contractual arrangement between them. Clearly, there was a relationship between the Participant and the relevant Funder. However, it would be difficult to characterise the relationship between a Participant and the relevant Funder as a contractual relationship.

Issue (1)B: Clause 8 of Schedule 2 Exemption

1. Under s 40(1), any amount paid or payable to a service provider in respect of the provision of services in connection with an employment agency contract is taken to be wages paid or payable by the employment agent under the employment agency contract. Section 40(2) then provides that s 40(1) does not apply to an employment agency contract to the extent specified in s 40(2). The first requirement of s 40(2) is that it must be shown that, if the service provider had been paid by the client as an employee, the amount of the payment would be exempt from payroll tax under Pt 4.
2. Part 4 of the Payroll Tax Act deals with "Exemptions". Division 3 of Pt 4 deals with "Health care service providers". Section 51, which is in Div 3, provides that wages paid or payable by a healthcare service provider are exempt wages if they are paid or payable for work of a kind ordinarily performed in connection with the conduct of a healthcare service provider to a person engaged exclusively in that kind of work. The term "health care service provider" has the meaning given in Div 2 of Pt 3 of Sch 2 to the Payroll Tax Act, namely "(a) a public hospital, or (b) a hospital that is carried on by a society or association otherwise than for the purposes of profit or gain to the individual members of the society or association".
3. It was intended that payroll tax legislation among the States was to be uniform. However, Sch 2 to the Payroll Tax Act contains provisions that have no equivalent in other States. Part 3 of Sch 2 deals with "Exemptions" and Div 2 of Pt 3 of Sch 2 deals with "Health care service providers". The critical provision is cl 8, which is part of Div 2.
4. Southern Cross contends that the intention of Parliament was to pose a hypothetical whereby Southern Cross, as intermediary, would be removed from the "worker-client relationship" and an inquiry would be made as to whether the "worker" would be performing a category of work that is exempt from payroll tax. The evidence suggests that, if the arrangements between Southern Cross and the Support Workers amounted to employment agency contracts under s 37, 94% of its payments to Support Workers in the Relevant Tax Years would be exempt. Southern Cross characterises the provisions in s 40(2) as "the look-through" because those payments would be exempt from payroll tax under cl 8 of Sch 2 if the Support Workers had been paid by "the clients" of Southern Cross as employees of those "clients", "the clients" being the Funders.

Legislative History of the Cl 8 Exemption

1. Clause 8 relevantly required that each of the following be satisfied: 1. the wages be paid or payable by the Crown; 2. the wages be paid or payable in respect of staff employed in connection with a public hospital or a local health district; 3. the wages be paid or payable for work of a kind ordinarily performed in connection with the conduct of public hospitals or of the local health district concerned; and 4. the wages be paid or payable to a person engaged exclusively in that kind of work. The phrase "in connection with" is used twice in cl 8, as indicated by the emphasis that I have added. Thus, the wages must be paid or payable in respect of staff employed in connection with a public hospital or Local Health District and the wages must be paid or payable for work of a kind ordinarily performed in connection with the conduct of public hospitals or of the Local Health District concerned.
2. The origins of the exemption in cl 8 are to be found in s 10 of the Pay-roll Tax Act 1971 (NSW) (the 1971 Act). When the 1971 Act was originally enacted, public hospitals were able to employ staff and s 10(b) relevantly provided that: "The wages liable to pay-roll tax under this Act do include wages paid or payable - … (b) by a religious or public benevolent institution, or a public hospital". (emphasis added) By the Pay-roll Tax (Further Amendment) Act 1977 (NSW), s 10(b) became s 10(1)(b). By the Pay-roll Tax (Amendment) Act 1979 (NSW) (the 1979 Amendment), s 10(1A) was inserted to provide, relevantly, that s 10(1)(b) only operated so as to exclude from wages liable to payroll tax wages paid or payable by: "a public hospital to a person in respect of time when the person is engaged in work of a kind ordinarily performed in connection with the conduct of public hospitals". The effect was to narrow the exemption such that it was not all wages paid or payable by public hospitals that were exempt. Rather, only those paid to persons in respect of work of a kind ordinarily performed in connection with the conduct of public hospitals were exempt.
3. In his speech on the second reading of the Bill for the 1979 Amendment, the Minister referred to the desire to avoid a mechanism whereby staff were being used by exempt entities for non-conventional purposes. The Minister said: [29] "The mechanism involves hiring out employees to industry in return for a fee and in the terms of the existing exemption no payroll tax would be payable on the wages paid to those persons so employed. The firms that have hired the services from the institution would also not be subject to payroll tax as they would not be an employer as defined by the Act in relation to these employees. Under the existing exemption it would be open for a large company to establish its own exempt institution from which it could hire its labour and thus avoid the payment of the tax." Thus, the requirement that the work for which wages are paid or payable be of a kind ordinarily performed in connection with the conduct of public hospitals served as a narrowing factor and was not intended to extend the exemption to any work that may have had a connection with a public hospital.

Construction of the Exemption

1. Southern Cross asserts that 99% of the payments to Support Workers in the Relevant Tax Years were for work having a sufficient connection to a public hospital or Local Health District to satisfy the requirement of cl 8 that it be work in connection with a public hospital or a Local Health District and work of a kind ordinarily performed in connection with the conduct of public hospitals or of the Local Health District concerned. It contends that the requirement was directed at excluding payments for work of an entirely different type, such as when a public hospital operated a separate commercial venture.
2. The phrase "in connection with" is of considerable width. In general, it would be satisfied by a link or an association or a relationship. It has the meaning of "having to do with." [34] Nevertheless, the meaning to be attributed to the phrase depends upon the context and purpose of the statute in which it appears. [35] Southern Cross contends that the Commissioner's argument that the phrase acts as a confining or narrowing factor should be rejected.
3. Southern Cross contends that the provision should be understood as meaning that the Support Worker performs his or her services in connection with a public hospital or a Local Health District. It relies on the following matters:

• high-needs Participants came to receive the services of Support Workers while they were patients in a public hospital and the services required by the Participant and hours of care were determined by the hospital and the Funder;
• all HCP Participants were assessed by an ACAT forming part of his or her Local Health District and the services received by the Participants under the HCP programme were individually tailored to meet the care needs of the respective Participants. For HACC Participants, some were discharged from hospital into the care of a Support Worker while others were referred by way of an ACAT, although there were some for whom there was neither a hospital nor an ACAT referral. Southern Cross accepts that there is insufficient evidence that payments in respect of low-needs Participants in the Miscellaneous category come within the cl 8 exemption;
• Support Workers were trained in hospitals for high-needs Participants for a significant period by the Participant's hospital treating team, to learn how to perform care for that Participant. The transition to the home environment was a gradual process of short and interspersed hospital and home stays. For high-needs Participants, where the Funder was the DoE, the Support Worker training with hospital staff took place in the school as well;

The Crown

1. Section 3 of the Payroll Tax Act defines "employer" as including: "(a) The Crown in any of its capacities; … (c) A public, local or municipal body or authority constituted under the law of the Commonwealth or of a State or Territory unless, being an authority constituted under the law of the Commonwealth, it is immune from the operation of this Act." Southern Cross suggests a contrast with the prior position under the 1971 Act. Southern Cross asserts that "employer" was defined to include only the Crown in right of New South Wales. However, under the 1971 Act, "employer" was defined as "any person who pays or is liable to pay wages and includes the Crown in right of the State of New South Wales". That was not intended to mean that only the Crown in right of New South Wales could be an employer. Thus, under the 1971 Act, there was also an express exemption in s 10(1)(g) for the "Commonwealth War Graves Commission".
2. Southern Cross points to other exemptions in the Payroll Tax Act for Commonwealth entities or programmes. For example, s 50 provides an exemption for amounts paid to an Aboriginal person who is employed under the Community Development Employment Project funded by the Department of Employment and Workplace Relations of the Commonwealth. Section 63 contains an exemption for amounts paid by the Commonwealth War Graves Commission.
3. Southern Cross contends that, in circumstances where cl 8 of Sch 2 is concerned with a Crown employer paying wages, the definition of "employer" in s 3, which includes all capacities of the Crown, indicates an intention for the "Crown" to be understood as the Crown in any of its capacities whenever the Payroll Tax Act makes reference to wages paid by an employer that is the Crown. Similarly, Southern Cross says, s 5 indicates that, since the Payroll Tax Act is intended to bind the Crown in all its capacities, all of the capacities of the Crown should have the benefit of the exemptions to payroll tax available to the Crown.
4. Accordingly, Southern Cross contends, TAC satisfies the description of being the Crown, albeit in right of the State of Victoria. DSS, as a Commonwealth Government department, satisfies the description of being the Crown, albeit in right of the Commonwealth. Similarly, Southern Cross contends, NDIA, as a Commonwealth Government agency, should be treated in the same way as any other Commonwealth department or agency.

Application in relation to each Funder

1. The Commissioner advances specific submissions in relation to each of the Funders. It is convenient to deal with each separately.

Lifetime Care

1. The Commissioner accepts that Lifetime Care is the Crown in right of New South Wales. However, he says, the requirement that the work in question be of a kind ordinarily performed in connection with the conduct of public hospitals or of the Local Health District would not be satisfied because Support Workers cannot fairly be characterised as constituting the workforce of a public hospital or a Local Health District, since the services provided by Support Workers in the home or residence of Participants with Lifetime Care were different in substance from the work ordinarily undertaken in public hospitals. The differences arise both from:

• the location;
• the tasks carried out;
• the acute condition or treatment stage of a person in hospital compared with the condition of a Participant at home; and
• the different qualifications of staff and oversight provided to staff at hospitals compared with Support Workers in the home. Even where Support Workers provided services to high-needs Participants that required some technical training, such as ventilator care, the Support Workers typically also provided household domestic assistance to assist the Participant or the household generally as well as assistance with community involvement such as assistance with shopping, household cleaning, money management and gardening, as in the case of Participant 2. The fact that Support Workers undertaking work funded by Lifetime Care were not exclusively engaged in the requisite kind of work is demonstrated by the initial care needs assessment for Participant 2. Thus, mobility and activities of daily living were stated as being provided by the hospital. However, independent activities of daily living were stated as not being provided by the hospital at present.

1. Participant 88 is an example of a Participant suffering from SCI. For her, the only services funded by Lifetime Care were housekeeping, laundry and gardening, apart from some occasional nursing care. That kind of assistance was not work undertaken in a hospital. Accordingly, the Support Worker in question was not exclusively engaged in the requisite kind of work for the purposes of the cl 8 exemption.

NSW Health

1. NSW Health is the Crown in right of New South Wales. However, the requirements of the exemption would not be satisfied for the reasons explained above in relation to Lifetime Care. That would be so even if it could be said that the requirement of being employed in connection with a public hospital or a Local Health District and performing work of a kind ordinarily performed in connection with the conduct of public hospitals or a Local Health District were satisfied. Support Workers were not exclusively engaged in the relevant kind of work.

FACS (including ADHC)

1. FACS (and ADHC) is the Crown in right of New South Wales. However, ADHC and FACS workers, including Support Workers, do not constitute the workforce of a public hospital or a Local Health District. Further, even for more complex cases funded by FACS and ADHC, the requirement that the work performed be of a kind ordinarily performed in connection with the conduct of public hospitals or of the Local Health District was not satisfied for the reasons given above in relation to Lifetime Care. For example, Participant 74 was a quadriplegic, whose care can be characterised as complex. The services provided, however, also included dusting, washing and wiping up of dishes. That is not work of a kind ordinarily performed in connection with the conduct of public hospitals or of the Local Health District.

DoE

1. DoE is the Crown in right of New South Wales. However, Support Workers providing services in connection with DoE could not be said to constitute the workforce of a public hospital or a Local Health District. Nor could it be said that the work performed in a school be work of a kind ordinarily performed in connection with a public hospital or a Local Health District. It could certainly not be characterised as being work exclusively of that kind.

NSW Trustee

1. Section 11(4) of the NSW Trustee and Guardian Act provides that, where the NSW Trustee is appointed to act in a trust or protective capacity, it has the same liabilities, is entitled to the same rights and immunities and is subject to the same control and orders of any court as a private person acting in the same capacity. Therefore, if appointed in a trust or protective capacity in respect of a Participant, the NSW Trustee acts in a representative capacity for the Participant rather than in the capacity of the Crown. While the NSW Trustee typically acts as a trustee, guardian or financial manager on behalf of someone else, there is no evidence as to the basis of the appointment of the NSW Trustee for any particular Participant. Accordingly, there does not appear to be a basis for concluding that the NSW Trustee is the Crown in right of New South Wales when acting in relation to a Participant. Further, in the absence of evidence as to the source or nature of the NSW Trustee's appointment and absence of evidence as to the source of funding from which services are paid, it cannot be said that wages paid or payable to the Support Worker are paid in respect of staff employed in connection with a public hospital or a Local Health District.
2. The evidence in relation to Participant 66 indicates that Southern Cross began providing services to Participant 66 in 1998, at a time when she had been living at a purpose-built home in Guildford for over 12 months. Prior to that time, Participant 66 had been in Marsden Rehabilitation Centre for 19 years. There is no evidence regarding Marsden Rehabilitation Centre. There is therefore a lack of any kind of connection with a public hospital or relevant Local Health District in relation to the Participant 66. In any event, the exclusivity requirement in relation to the work of the kind ordinarily performed in connection with the conduct of public hospitals or of the Local Health District would not be satisfied for the same reasons as set out above in relation to Lifetime Care.

DSS

1. DSS is not the Crown in right of New South Wales for reasons indicated above. Even if it were, Support Workers, in carrying out aged care services under the HACC/CACP programmes and HCP/CHSP programmes, did not form part of the workforce of a public hospital or a Local Health District. Further, the kind of domestic and personal services that Support Workers undertook for Participants funded under those programmes was not work of a kind ordinarily performed by the work force of public hospitals in connection with the conduct of public hospitals or a Local Health District.

TAC

1. TAC is not the Crown in right of New South Wales. Even if it were, the exemption in cl 8 would not apply for the reasons given above in relation to Lifetime Care.

NDIA

1. The NDIA is clearly not the Crown in right of New South Wales and, accordingly, the exemption does not apply. In any event, the cl 8 exemption does not apply for the reasons given above in relation to Lifetime Care.

Issue (1)C: Requirement of Section 40(2) for a declaration

1. The second requirement of s 40(2) is that the "client" has given a certificate that an amount would be exempt from payroll tax under Pt 4 had the service provider been paid by the "client" as an employee. Southern Cross accepts that, while it has attempted to obtain declarations from the Funders in respect of Support Workers, it has not received declarations from any of the Funders, other than NSW Health. In some cases, the requests have been ignored and in other cases, Southern Cross says, the Funder has simply misunderstood the nature of the certificate being sought.

Requests for Declarations from Funders

1. On 20 April 2020, Southern Cross wrote to each of Lifetime Care, NSW Health, FACS, DoE, DSS, TAC and NDIA seeking information from each of those Funders. Relevantly, each letter said as follows: "Recently, discussions have occurred between [Southern Cross] and the NSW Payroll Tax Authority. One element of the discussion involves the quantum of Payroll Tax and whether, and to what extent, the quantum is affected by reason of the fact that clients of [Southern Cross] are not themselves liable to pay Payroll Tax. Where that client is effectively part of the Government of NSW, the reality is that the amount of any Payroll Tax imposed on [Southern Cross] in relation to care services for that client effectively results in one arm of the NSW Government paying Payroll Tax to another arm, via [Southern Cross]. [Southern Cross] would be most grateful for some very limited input from you. Please note that [Southern Cross] is not asking for any opinion or support of the position of [Southern Cross]. [Southern Cross] has SCCH has met and will continue to meet Payroll Tax obligations. [Southern Cross] locates and pays Support Workers to provide care for participants on behalf of your department or agency. It seems clear to us that if, instead, your department or agency were to pay [Southern Cross's] Support Workers as employees, to perform the same services, such wages would be exempt from Payroll Tax under clause 8 of Schedule 2 to the [Payroll Tax Act]. We would be grateful if you would confirm that the previous sentence is correct, and that it was correct in each of the years ended 30 June 2012 to 30 June 2017. For assistance, we attach Revenue Ruling PTA 026. We also attach the declaration OPT006 referred to in the Ruling and ask that you complete and return it as soon as possible if the exemption hereof applied during each of the years ended 30 June 2012 to 30 June 2017."
2. Ruling PTA 026 relevantly said as follows: "The employment agency provisions in Division 8 of Part 3 of the [Payroll Tax Act] apply to an employment agency contract, which is defined as a contract under which a person (the employment agent) procures the services of another person (the service provider) for a client of the employment agent. The provisions are designed to apply to labour hire arrangements where the employment agent contracts with the client for the provision of labour where there is no agreement between the service provider and the client. Under the employment agency provisions, the employment agent is taken to be the employer (section 38 of the [Payroll Tax Act]) and the person who performs work for or in relation to which services are supplied to the client under an employment agency contract (on-hired worker) is taken to be the employee (section 39 of the [Payroll Tax Act]). Amounts paid or payable under the employment agency contract are taken to be wages (section 40(1) of the [Payroll Tax Act]). Consequently, the employment agent is liable to pay payroll tax on the amounts taken to be wages. However, certain types of payments are exempt from payroll tax under section 40(2) of the [Payroll Tax Act]. The exemption applies where: 1. The wages would have been exempt from payroll tax under Part 4 except for Division 4 or 5 of that Part, section 50 or clause 5 of schedule 2 (the Relevant Provisions) had the service provider been paid directly by the client as an employee, and 2. The client has made a declaration to that effect to the employment agent, in respect of the service provider (the Relevant Declaration). … This Revenue Ruling explains the operation of the exemption under section 40(2) of the [Payroll Tax Act] and its requirements. Ruling Relevant Declaration To claim the exemption in section 40(2) of the [Payroll Tax Act], the employment agent has to obtain a Relevant Declaration from its client. The Relevant Declaration must be in writing and must state that the wages paid or payable to or in relation to the service provider for the provision of services in connection with the employment agency contract would be exempt under the Relevant Provisions had the service provider been paid by the client as an employee. OSR Payroll Tax Form OPT 006 (Employment Agency Contracts - Declaration by Exempt Client), which is available on may be used to make the Relevant Declaration. This form is not a prescribed form and employment agents are free to develop their own version of the declaration. … Incomplete or Incorrect Declaration Employment agents are liable for any payroll tax liability if a Relevant Declaration is found to be incomplete or does not meet the requirements outlined above. For this reason, employment agents should ensure that their exempt clients have competed the Relevant Declaration in full. If a client has provided a Relevant Declaration which is later found to be incorrect (because the wages paid to or in relation to the service provider would not have been exempt under the Relevant Provisions had the service provider been paid by the client as an employee), the employment agent will nevertheless be liable to pay payroll tax on the amounts paid to the on-hired workers provided to that client.[fn 1] If an employment agent wishes is to confirm that a Relevant Declaration from a client is correct, the agent may contact the OSR. … Frequency of Declaration The [Payroll Tax Act] requires a separate Relevant Declaration for each employment agency contract entered into between the employment agent and their client(s). However, the Chief Commissioner recognises that this requirement may be impractical and onerous. For this reason, the Chief Commissioner will be satisfied if the employment agent obtains one Relevant Declaration from its exempt client for each financial year if the type of work performed by all persons on-hired by that employment agent to that client is similar. Where the contract for the provision of the workers goes beyond a financial year, only one declaration is required. Employment agents should ensure that a Relevant Declaration is obtained before the end of the relevant financial year. … Application for refund made by an employment agent If an employment agent becomes aware that its client is exempt under the Relevant Provisions of the [Payroll Tax Act] after having paid payroll tax on the wages under an employment agency contract, the employment agent may apply for a refund under section 18 of the [Administration Act]. A refund application must be accompanied by a Relevant Declaration and written confirmation from the client stating that Relevant Declaration is made for a retrospective period, relating to the refund period. …".

Legislative History of the Requirement for a Declaration

1. Southern Cross contends that the legislative history of s 40(2) shows that the overall purpose of the provision was to facilitate access to the exemption on the part of an employment agent and to confer exemption on payments by the employment agent where the underlying facts would meet the exemption, absent the intervention of the agent. Southern Cross asserts that, as the legislation evolved, the declaration language changed but there was no intention to narrow the scope of the exemption. Accordingly, Southern Cross says, unlike its predecessor in the 1971 Act, on which it says s 40(2) appears to have been "mistakenly" modelled, the declaration component of s 40(2) had no work to do during the Relevant Tax Years.
2. Section 3C(4) of the 1971 Act, which was introduced into the 1971 Act in 1998, [39] was in the following terms: "(4) An employment agent is not liable to pay-roll tax under this Act in relation to an employment agency contract: (a) if the contract worker is liable to pay pay-roll tax (as the employer of the person who actually provides the services to the client of the employment agent under the contract) in respect of wages paid for those services, or (b) if the wages that the amount, value of the benefit or payment under subsection (2)(c) is taken to be would have been exempt from pay-roll tax under section 10 had the contract worker been paid those wages by the client of the employment agent, or (c) if the client of the employment agent is not registered or required to be registered as an employer under this Act at the time the employment agency contract is entered into and a declaration to that effect has been given by the client to the employment agent. (5) If, after a client gives a declaration referred to in subsection (4)(c) to an employment agent, the client becomes registered or is required to be registered as an employer under this Act, the client is liable to pay pay-roll tax in respect of the wages paid under the employment agency contract during each financial year in which the client is registered or is required to be registered." (emphasis added by Southern Cross)
3. Clearly enough, s 3C(4)(b) was a predecessor of s 40(2). However, it did not require a declaration. On the other hand, s 3C(4)(c) provided an alternative exemption where a declaration had been given by "the client" to the employment agent to the effect that "the client" was not registered or required to be registered as an employer under the 1971 Act at the time when the employment agency contract was entered into. Section 3C(5) then provided that, if a "client" gave to an employment agent a declaration as referred to in s 3C(4)(c) and the "client" became registered or was required to be registered as an employer, the "client" was liable to pay payroll tax in respect of the wages paid under the employment agency contract during each financial year in which the "client" was registered or was required to be registered.

Construction of s 40(2)

1. It is common ground that s 40(2) contains a drafting error, in so far as it fails to refer to Pt 3 of Sch 2 immediately before the parenthesis. Southern Cross asserts that the drafting demonstrates another flaw, in so far as it expressed the declaration component as a precondition to the exemption in circumstances where the declaration component had no work to do other than to frustrate s 40(2) in the event that the declaration was not forthcoming.
2. Thus, Southern Cross contends, while the predecessor regime had machinery that allocated the payroll tax liability to the "client" in circumstances where the declaration was not correct, there was no equivalent provision in the Payroll Tax Act. While the explanatory note for the Bill for the Payroll Tax Act described the declaration component of s 40(2) as "a requirement", it said nothing further about the declarations. There appears to be no recognition in the extrinsic material that the provisions allocating the payroll tax liability to the "client" in the event of an incorrect declaration had been carried across. Further, there appears to be no indication in the extrinsic material that the exemption was intended to be narrowed.
3. Southern Cross contends that those responsible for the drafting of s 40(2) erroneously carried into it from the 1971 Act the requirement for the "client" to give a declaration to the employment agent on the mistaken assumption that it would serve as a liability allocation tool, as it had done in the 1971 Act. Southern Cross asserts that it served no other function in s 40(2) as drafted and, if read literally, the provision is capable of frustrating the purpose of the exemption, by elevating a matter of form over the substance of the requirement for exempt status.
4. Southern Cross asserts that those responsible for the drafting of s 40(2) overlooked the eventuality of a client failing to give a declaration. While that had been overlooked in the predecessor regime, the problem came to the fore under the Payroll Tax Act in circumstances where the role of the declaration was significantly reduced. Southern Cross asserts that those responsible for the drafting of the provisions also overlooked the related eventuality of the Commissioner failing to approve a form for the purposes of s 40(2). Thus, it says, a taxpayer may be unable to obtain the declaration referred to, despite satisfying the hypothetical in s 40(2) simply because the "client" would not provide a declaration or because the Chief Commissioner had not approved a form.

Court Intervention

1. Alternatively, Southern Cross asserts that there is no policy imperative that would require a declaration to be given prospectively only and contends that a declaration can be given retrospectively. [44] Nevertheless, it accepts that ordinary limitation periods for amending and adjusting returns and assessments would apply. Accordingly, Southern Cross asks the Court to grant declaratory relief as to its entitlement to an exemption but for the absence of the declarations under s 40(2). Southern Cross is hopeful that the Funders, as clients, would then be better disposed to provide the declarations if the Court found that the balance of the criteria for the exemption were satisfied. Thus, Southern Cross invites the Court to make declarations that the criteria for the relevant exemption are satisfied, namely: [45]

• the Funders are "the Crown" for the purposes of the Payroll Tax Act;
• Southern Cross made payments under employment agency contracts;
• the payments were made to Support Workers for work of the kind ordinarily performed in connection with the conduct of public hospitals or Local Health Districts; and
• the Support Workers were engaged by Southern Cross exclusively for work of that kind.

1. I am not persuaded that the Court has jurisdiction or power to grant the relief sought by Southern Cross, of making declarations that would facilitate the provision of declarations by the Funders. Part 10 of the Administration Act is an exclusive code for the review of adverse decisions of the Commissioner on notices of objection by taxpayers against assessments made under the Payroll Tax Act. [46] Under s 103A of the Administration Act, the jurisdiction and power of the Court, in considering any question concerning an assessment or other decision of the Commissioner, does not extend beyond the jurisdiction and power set out in Pt 10 of the Administration Act.
2. Thus, the only presently relevant powers of the Court are those contained in s 101 of the Administration Act, which include the power to confirm or revoke assessments, make assessments or other decisions and make orders for payment or remission. While s 101(1)(e) empowers the Court to make any further order as to costs or otherwise as it thinks fit, that provision should not be given an unduly broad operation. [47] The relief sought by Southern Cross, in the form of declarations, does not fall within the Court's power under s 101(1)(e) of the Administration Act, particularly in circumstances where the question of the whether the declarations required under s 40(2) have been provided is a question of fact.

Issue (2): Employee or Independent Contractor

1. It is common ground that, if and to the extent that contractual arrangements between Southern Cross and Support Workers are employment agency contracts, Southern Cross is not liable to pay payroll tax on payments made to such Support Workers on the basis that they are common law employees. However, I have concluded that contractual arrangements between Southern Cross and Support Workers are not employment agency contracts. Accordingly, Issue (2) now arises for determination, namely, whether Support Workers are common law employees of Southern Cross.
2. Common law employment is assessed by reference to a range of factual indicia, none of which is determinative on its own. Thus, no list of factors can be regarded as exhaustive and the weight to be given to particular facts varies depending upon the circumstances. Ultimately, it is necessary to take into account the totality of the relationship between the parties. [49] Accordingly, whether or not Support Workers are common law employees of Southern Cross requires a multifactorial assessment of the totality of the relationship, as ascertained from the surrounding matrix of facts. [50]
3. The factors (the Accepted Indicia) often considered to be relevant to such a determination include: [51]

• control and direction;
• integration;
• contracts to achieve a "given result";
• power to delegate;
• assumption of risk;
• provision of tools and equipment; and
• extent to which the worker operates an "independent business".

1. The test is concerned with the substance of the relationship and the degree of control exercised by the payer. [52] The parties to an arrangement cannot alter the reality of the relationship by giving it a particular label. Thus, the characterisation of the relationship by the parties will rarely be conclusive, although such a characterisation may sometimes remove any ambiguity as to the nature of the relationship where the Accepted Indicia point in both directions.
2. The ultimate question will be whether one person is acting as the employee or servant of another or on behalf of another. [53] If the hallmarks of a business conducted on the part of a worker are absent, it may be easier to conclude that the worker is an employee. [54]

Issue (3): 90-day Rule

1. If the arrangements between Southern Cross and the Support Workers are not employment agency contracts within the meaning of the Payroll Tax Act and Support Workers are not employees of Southern Cross under the general law, it would follow that all payments made to Support Workers were made under relevant contracts within the meaning of s 32(1) of the Payroll Tax Act. Accordingly, the payments would be subject to payroll tax unless the exception in s 32(2) applies.
2. Section 32(1) of the Payroll Tax Act provides that a relevant contract in relation to a financial year is a contract under which a person (the designated person) during that financial year, in the course of a business carried on by the designated person, supplies to another person services for or in relation to the performance of work or has supplied to the designated person the services of persons for or in relation to the performance of work. However, under s 32(2)(b)(iii), a relevant contract does not include a contract under which the designated person during a financial year in the course of a business carried on by the designated person is supplied with services for or in relation to the performance of work where those services are provided for a period that did not exceed 90 days or for periods that, in the aggregate, did not exceed 90 days in that financial year.
3. There are two bases upon which Southern Cross calls in aid the exception in s 32(2)(b)(iii) to support its contention that its arrangements with Support Workers do not constitute relevant contracts for the purposes of s 32. First, Southern Cross contends that the reference to services provided for a period that does not exceed 90 days should be limited to the provision of services on fewer than 90 calendar days in a year, regardless of how many hours are worked on a given day. In support of that contention, Southern Cross relies on a formula set out in "OSR Ruling PTA 035v2". The Commissioner accepts that, while the ruling is not binding on the Court, he would not contest a result produced by a proper application of the method described in that ruling. Thus, the Commissioner would not contest a result whereby approximately 10% of amounts paid to Support Workers during the Relevant Tax Years fell within the exception in s 32(2)(b)(iii) and would be exempt from payroll tax if the Court concludes that Support Workers are independent contractors and not common law employees.

Issue (4): Interest

1. By the operation of the Administration Act, on the happening of a tax default, which arose when Southern Cross failed to pay payroll tax on taxable wages within seven days of the end of the month in which the wages were paid or payable, interest became payable. The Assessments notified Southern Cross of payroll tax payable and the interest that had accrued in accordance with the provisions of the Administration Act. However, if Southern Cross is successful in establishing that an exemption applies, interest will be reduced accordingly on that part of the payments found to be exempt or not to be wages. Southern Cross seeks the remission of interest on payroll tax that is found to be payable. Standing in the shoes of the Commissioner in these proceedings, the Court may, in such circumstances as it considers appropriate, remit the market rate component or the premium component of interest, or both. The Commissioner opposes the remission of any interest.
2. The effect of ss 103 to 105 of the Administration Act is that an application for review does not stop interest from accruing. However, if a taxpayer's appeal is successful, the Commissioner is required to repay any interest paid, together with interest at the market rate on that repaid interest.
3. One purpose of the market rate component is to compensate the Commissioner for not having the benefit of a tax payment from the time when it is due. It would be rare, if ever, that the market rate component should be remitted. Otherwise, there would be an inducement for a taxpayer to dispute liability. The effect would be to discriminate against taxpayers who meet obligations on time in accordance with the Administration Act. [62] Only very exceptional circumstances would justify any remission of the market rate component. [63]
4. In the present circumstances, I am not persuaded that there is any basis upon which there should be any remission of the market rate component of interest imposed by the Administration Act. The market rate component is referable to the Bank Accepted Bill rate and represents the value of money and the lost opportunity for the Commissioner in not receiving tax when it is payable in terms of the Administration Act. The premium component, on the other hand, which is a further 8% on top of the market rate component, is fairly characterised as being penal, particularly in circumstances where current interest rates are historically low.

Conclusion

1. I have concluded that none of the arrangements between Southern Cross, on one hand, and Support Workers, on the other, constituted employment agency contracts within the meaning of s 37(1) of the Payroll Tax Act. Even if they did, I do not consider that the exemption in cl 8 of Sch 2 to the Payroll Tax Act would apply to any of the Support Workers. Even if the exemption applied, I do not consider that Southern Cross has satisfied the requirements of s 40(2) in so far as it required a declaration from the Funders.
2. I have concluded that the Support Workers are not common law employees of Southern Cross. However, I do not accept the construction of s 32(2)(b)(iii) of the Payroll Tax Act contended for by Southern Cross in relation to "the 90-day rule".
3. It follows that Southern Cross is liable to pay an amount of payroll tax. I do not consider that any basis has been established for remitting the market rate component of interest charged under the Administration Act on the amount of unpaid tax. However, I consider that the premium component of interest should be remitted to the extent of 4% per annum.
4. I propose to make the following orders: 1. Direct the plaintiff, no later than 14 days after the publication of these reasons, to bring in short minutes to reflect the conclusions reached in these reasons; 2. Order that the plaintiff pay the defendant's costs of the proceedings; and 3. Reserve leave to the parties to apply, no later than 28 days after the publication of these reasons, for further directions if there is a dispute as to the calculation of payroll tax or interest or as to the costs of the proceedings.

Appendix 1 Clause 8 of Sch 2 of the Payroll Tax Act requires that: (the Requirements) 1. In respect of any Funder or category, the Support Workers satisfy the first "in connection with" test. 2. In respect of any Funder or category, that the work done by Support Workers satisfies the second "in connection with" test. 3. In respect of any funder or category, that the work done by Support Workers satisfies the exclusivity test in cl.8(b) of Sch 2. Category Position of the Parties Amounts paid to Support Workers providing care to Participants with an SCI or ABI, where that care was funded by Lifetime Care. If the Court finds that both Participant 2 and Participant 88 satisfy the Requirements, then it is agreed that the Court can find the Requirements are satisfied for all Participants in this category. Amounts paid to Support Workers providing care to Participants with an SCI or ABI where that care was funded by NSW Health. If the Court finds that each of Participants 9, 21 and 58 satisfy the Requirements, then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category. Amounts paid to Support Workers providing care to Participants with an SCI or ABI under the ACP/HNP/CSP disability programmes where that care was funded by FACS/ADHC. If the Court finds that each of Participants 68, 71, 74, 77 and 187 satisfy the Requirements, then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category. Amounts paid to Support Workers providing care to Participants in the Miscellaneous category under the ACP/HNP/CSP disability programmes where that care was funded by FACS/ADHC. The Chief Commissioner does not agree that this category can be determined by reference to one or more representative or sample Participants. Amounts paid to Support Workers providing care to Participants under the HACC programme, where that care was funded by FACS/ADHC. If the Court finds that each of Participants 116, 118, 191, 195, 201, 217, 229, 252, 296, 306 and 343 satisfy the Requirements, then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category. Amounts paid to Support Workers providing care to Participants under the HACC programme, where that care was funded by DSS. If the Court finds that each of Participants 116, 118, 191, 195, 201, 217, 229, 252, 296, 306 and 343 satisfy the Requirements (and that Cth DSS/Ageing is "the Crown"), then it is agreed the Court can find the Requirements to be satisfied for all Participants in this category. Amounts paid to Support Workers providing care to Participants under the HCP programme, where that care was funded by DSS. If the Court finds that each of Participants 13, 332, 335, 345 and 346 satisfy the Requirements (and that DSS is "the Crown"), then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category. Amounts paid to Support Workers providing care to Participants with an SCI, where that care was funded by DoE. If the Court finds that each of Participants 9, 10 and 11 satisfy the Requirements, then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category. Amounts paid to Support Workers providing care to Participants with an ABI where that care was funded by NSW Trustee. The Commissioner does not agree that this category can be determined by reference to one or more representative or sample Participants. Amounts paid to Support Workers providing care to Participants with an SCI, where that care was funded by TAC. If the Court finds that both Participants 7 and 1235 satisfy the Requirements (and that TAC is "the Crown"), then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category. Amounts paid to Support Workers providing care to Participants with an SCI or ABI or in the Misc category, where that care was funded by NDIA or another government client in the "Other" category. The Commissioner does not agree that this category can be determined by reference to one or more representative or sample Participants.

Participant condition, weekly hours of care, kinds of care provided and programme funding Participant Conditions Hours of care/week What kinds of care were provided by the [Support Workers]/[Southern Cross] to the Participant? Funding Agency a) 24 hours per day [Support Worker]; b) Additional four hours per day of second [Support Worker]; 2 Spinal Cord Injury, tetraplegic, neurogenic bowel, neurogenic bladder, sustained in a motor vehicle accident in March 2008 20 hrs day c) Additional five hours per month for second [Support Worker] for assistance with attendance to medical appointments; [Lifetime Care] 48 hrs night Invoice period end 29/01/15 d) Two hours per month registered nursing, plus an additional three hours twice per year for attendance at the spinal cord injury clinic; and e) Two hours of [Support Worker] training for 10 [Support Workers]. (Attendant care service request 30 April 2014) a) Spinal Cord Injury T10-12; 4 hrs a) Domestic assistance: (four hours per week): lawn mowing, handyman services, cleaning, spring cleaning, shopping, housekeeping, annual window and gutter clean, changing bed linen, empty bins, wash dishes, clean mirrors; and 88 b) Paraplegia; and Nov 2015 b) Personal Care: Wound dressings by a RN for pressure wounds. [Lifetime Care] c) Pressure areas. Participant Attendant Care Agreement 93 hrs a) Personal care: Showering, dressing, grooming, skin care, oral hygiene, shave, supervise mobility, change of suprapubic catheter (by RN 2 hrs per fortnight), bowel management, assist feeding, attend exercise program; 93 a) Incomplete quadriplegia C4-5 as a result of a motor vehicle accident in 2008. 7 inactive sleepovers 1-hr RN b) Domestic assistance: Lawn mowing (2 hours per week); and [Lifetime Care] 2 hrs Garden Notice of Assessment and Certificate c) Inactive sleepovers. 12/04/14 a) Head Injury - impaired cognition, caused by a motor vehicle accident in April 2014; b) Upper limb pain; 112 hrs a) Personal Care: Mobility and transfer supervision, assist shower and dressing, continence support, medication supervision, assist exercise program, grooming, foot care; and 96 c) Insulin dependent diabetic; 7 inactive sleepovers Notice of Assessment and b) Domestic assistance: transport assistance, food preparation, cleaning, laundry, wash dishes, change bed linen, empty rubbish bins, sweep. [Lifetime Care] d) Prostate disease; and Certificate 10/09/15 e) Urge incontinence a) Spinal Cord Injury C7, and 41.6 hrs 6 hrs RN Notice of a) Personal Care: Suprapubic catheter care, chair to car transfers, wound care, skin integrity support, shower supervision, assist grooming, assist dressing, dress child, bowel management; 99 b) Neurogenic bladder and bowel. Assessment and Certificate 6/11/14 b) Domestic assistance: Food preparation, shopping, attend appointments, laundry, change bed linen, wash floors, wash dishes; and [Lifetime Care] c) Community Support: assistance with attending social outings. a) Spinal cord injury: L5- S1; 4 hrs 107 b) Brain Injury; 0.5 hrs garden Notice of Assessment and Certificate a) Domestic assistance: (four hours per week): Shopping, food preparation, cleaning assist, lawn mowing, assistance with exercise and hobbies, laundry, make the bed, empty bins, clean windows and blinds, pick up kids' toys. [Lifetime Care] c) Right Below Knee Amputation, in respect of which he uses a prosthesis; and 08/04/15 d) Right Elbow Injury and nerve damage to the right hand. a) Traumatic Brain Injury; b) Left-Hand Weakness; 1 hr a) Personal Care: Wound dressings (September 2011), mobility supervision, assist with transport to appointments, transfer to car supervision, assist dressing, supervision with gym program, inactive overnight supervision (personal care no longer required by July 2013 assessment); and 119 c) Right leg weakness; Notice of Assessment and Certificate 13/08/13 b) Domestic assistance: Vacuum, dust, clean bathroom, wash the floor, make the bed, change bed linen, and shopping. [Lifetime Care] d) Left below-knee amputation, as a result of which he uses a prosthesis; and e) Diabetes type 2. 59 hrs [Support Worker] a) Personal Care: Wound management, wounds monitoring once per week by Registered Nurse, shower, dressing, grooming, skin integrity check, eye care, oral hygiene, supervise mobility attend medications, monitor pain, attend exercise program, provide appointment transport; 135 a) Burns to 60% of Total Body Surface Area. 21 hrs RN Notice of Assessment and Certificate 25/5/11 - b) Domestic assistance: clean bathroom, make the bed, change linen, washing, ironing, shopping, pay bills; and [Lifetime Care] 16/08/11 c) Social care: attend outings. 2 HRS a) In August - September 2014: Domestic assistance: Washing, ironing, folding clothes, bed 140 a) Spinal Cord Injury in 2013. Notice of Assessment making (Attendant Care Service Request and Southern Cross Care Plan); and [Lifetime Care] and Certificate 28/07/14 b) In June 2015 and again in November 2015: Domestic assistance: assistance with relocation, packing, delivery of and unpacking belongings (Service Approval/Purchase Orders). a) Cerebrovascular accident; and 94.5 Hrs 7 night inactive a) Personal care: Assist mobility, toileting assist, dressing assist, grooming assist, assist therapy programs, inactive sleepovers, assist bed and chair transfers; 153 b) Traumatic Brain injury. sleepover, Notice of Assessment and Certificate 09/05/2016 b) Domestic assistance: meal preparation assist, clean bathroom, attend medical appointments, assist in looking after grandchildren, house cleaning, vacuum, mopping, washing up, assist laundry, shopping; and [Lifetime Care] c) Social Care: Outings assistance, assist transport to appointments. a) Acquired brain injury, which affects cognitive function / mental abilities b) Vision impairment; c) Unsteady gait; a) Personal Care: take for a walk for a therapy program, shower, assist dressing, skincare, foot care, oral hygiene, shave, hand hygiene prompting, assist eye drops, supervise medications, support attendance to therapy appointments and work program; 182 d) Rheumatoid arthritis (non- injury related); 47.5 Hrs Notice of Assessment and Certificate 11/11/11 b) Domestic assistance: Prepare meals, safety supervision, assist bed making, clean bathroom, wash dishes, change bed linen, attend shopping, and [Lifetime Care] e) Diabetes; c) Social care: organise social activities in the community. f) Hypothyroidism; g) Hypogonadism; and h) Depression 35 Hrs a) Personal care: mobility and transfers, showering, grooming, dressing; 366 a) As a result of a stroke in 2006, left side weakness, reduced mobility and vision and speaking difficulties FaCS Funding Agreement 1/7/15 b) Domestic assistance: cleaning, preparing food, washing clothing, shopping, gardening; and [FACS/ADHC] c) Social support: attending outings to maintain community connections. a) Personal Care: Ventilator and humidification set-up and management, Tracheostomy care, tube changes, suctioning, neck care and tape changes, Gastrostomy feeds, site care and reporting on nutritional status, assist with medications, mouth care, bowel care, suprapubic catheter, application of splints/passive range of movements, physiotherapist regime, bathing/showering and dressing, positioning and transfers - managing the client in a powered/manual wheelchair, eye care, suprapubic catheter care, pressure- relieving mattress management, monitor for autonomic dysreflexia; b) Social Assistance: normal adult activity interaction with the client, e.g. through a variety of communication methods; c) A Nurse Educator (A Registered Nurse with a post-registration certificate, experience or other appropriate qualification) to conduct an education program, skills-based and assessment of competency, for [Support Workers]. This will include client-specific mechanical ventilation management and tracheostomy care; a) Brain Injury from a spontaneous intracerebral bleed into the brain stem from an arteriovenous malformation; d) 24-hour on-call service by a person to troubleshoot any problems with ventilation equipment, including identification of the 21 b) Quadriplegia, requiring full- time ventilation; and 49 hours FaCS Funding Agreement 1/07/15 specific issue and appropriate referral; [FACS/ADHC] c) "Locked in syndrome", where the patient is cognitively alert and orientated, however control over the person's physical functions has been severely impaired. e) Be available to family/carers and care staff for consultation and education in all aspects of home mechanical ventilation as needed; f) Liaise with the Area Health Service Contact and EnableNSW to ensure ventilators and all equipment required for home ventilation is maintained and serviced; g) Liaise closely with the Area Health Service EnableNSW to ensure ongoing effective use and maintenance of equipment; and h) Domestic assistance: vacuum, dust, clean bathroom, wash floors, change bed linen, wash dishes 68 a) Spinal Cord Injury level C4, sustained in a bicycle fall in May 2012. While able to walk short distances, requires wheelchair for longer distances; and 26 hours FaCS Funding Agreement 1/07/15 a) Personal Care (24 hrs per week): Continuous positive airway pressure (CPAP) at night, Showering and personal hygiene, catheter care, grooming, dressing, mobility assistance, medications, outings; [FACS/ADHC] b) Sleep apnoea. b) Domestic assistance (2 hours per week): vacuum, cleaning, washing, ironing, change bed linen, shopping, food preparation. 71 a) Spinal Cord Injury - C6 complete quadriplegia, sustained in an injury in February 2011. The person has very limited movement in his arms and hands. 28 hours FaCS Funding Agreement 1/07/15 a) Personal Care: Showering and Hygiene, transfers, skincare, Suprapubic catheter care, shaving; and [FACS/ADHC] b) Neurogenic bladder and bowel. b) Domestic assistance: Washing. 74 a) Quadriplegia. 28 hours FaCS Funding Agreement 1/07/15 a) Personal care: showering, oral hygiene, toileting assistance, grooming, dressing, skincare, transfers; and [FACS/ADHC] b) Domestic assistance: prepare food, dust, clean bathroom wash floors, wash dishes, sweep the floor, clean kitchen. 77 a) Spinal Cord Injury secondary to tumours in cervical and thoracic as an infant at six months old. 46 hours FaCS Funding Agreement 1/07/15 a) Personal care: Medication assistance, positioning, transfers, shower and hygiene, bowel management, suprapubic catheter management, skincare, grooming, exercises; and [FACS/ADHC] b) Domestic assistance: Meal preparation, washing, ironing, sweeping. a) Acquired Brain Injury, from 35 hrs a) Personal care: assist physiotherapy program, assist shower, assist dressing, skincare, oral care, continence management; 187 b) Ruptured carotid aneurysm; and FaCS Funding Agreement 1/07/15 b) Domestic assistance: prepare meals, take for a walk, tidy bed, and bathroom, change bed linen, clean bathroom, vacuum, dust, wash floors, put laundry away, tidy bedroom; and [FACS/ADHC] c) Subarachnoid haemorrhage. c) Social care; in respite care plans, to encourage leisure activities, encourage communication board use. a) Progressive Dematopolymyositis, an inflammatory disease affecting the participant's skin and muscles; 27 hrs a) Personal Care: assist shower, assist dressing, skin care, foot care, assist with toileting, assist grooming, oral hygiene, monitor and supervise mobility, monitor pain, wound care, administer medications, continence management, assist with chair and bed transfers; 355 b) Calcinosis, the formation of calcium deposits in any soft tissue; and c) Sepsis, an immune response to bacterial infection that gets into the blood SCCH b) Domestic assistance: Prepare meals, vacuum, dust, wash the floor, clothes washing, make the bed, attend shopping, wash bandages, Ironing, clean bathroom, collect mail; and [FACS/ADHC] Assessment 31/07/13 c) Social care: shopping and lunch outings. 367 a) Cerebral Palsy; and 35.1 hrs a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting, assist grooming, oral hygiene, monitor and supervise mobility, assist toileting; and [FACS/ADHC] b) Epilepsy. FaCS Funding Agreement 1/07/15 b) Domestic assistance: Prepare meals, vacuum, dust, wash the floor, clothes washing, make the bed, change bed linen, attend shopping, clean bathroom, wash dishes, wash clothes. 26 hrs High Level 380 a) Spinal Cord Injury (C4 Incomplete Quadriplegia), sustained in an injury in March 2012 Personal Care Needs Assessment a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting, assist grooming, oral hygiene, monitor and supervise mobility, suprapubic catheter care and change, bowel management, monitor for dysreflexia [FACS/ADHC] 25/06/12 a) Tracheostomy care, including suction; a) Spinal Muscular Atrophy; 98 hrs b) Catheter care; 58 b) Respiratory Distress Syndrome; and SCCH New c) Parenteral Gastrostomy care and management; [NSW Health] c) Seizures. programs management May 2010 d) Oxygen saturation monitoring; and e) Care on weekend outings. a) Goldenhar Syndrome; 100 Hours a) Tracheostomy care; 9 b) Thoracic Cage Syndrome; and SCCH b) Percutaneous Endoscopic Gastroscopic (PEG) management; and [DoE] c) Tracheal Malacia. Assessment 6/1/14 c) Ventilator management. a) Acquired Brain Injury; a) Personal care: showering, hygiene, grooming, dressing, eye care, foot care, oral hygiene, Bladder and Bowel management, Exercise program, Monitor skin integrity, application of creams, administer medications as ordered; 66 b) Quadriplegia; and 168 Hrs SCCH Service user assessment summary 26/3/14 b) Social support: outings; and [NSW Trustee] c) History of Seizures. c) Domestic support: cleaning, washing clothes, ironing, making the bed, emptying bins, shopping. a) Personal care: Showering, grooming, medications, catheter care, meal support, suprapubic catheter care, bowel care, repositioning, transfers; tilt table exercises daily 7 a) Spinal Cord Injury, T6 Paraplegia; and 184 Hrs TAC Service claim 93/00091 b) Active Overnight Care: see TAC approval May and Dec 2011; [TAC] b) Brachial plexus injury left arm. 23/12/11 c) Domestic assistance: tidy care work environment; d) Social care: supported leisure options, gym support workers, camps. a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting, assist grooming, oral hygiene, bowel management, exercise regimen; 1235 a) C5 Incomplete quadriplegia, sustained in a motor vehicle accident in 2002. 35 Hours TAC Support Needs Approval 26/10/12 b) Domestic assistance: Prepare meals, attend shopping, domestic; and [TAC] c) Social care: community integration a) Spasticity, dystonia, dysarthria resulting from a resection of right frontal ependymoma (type of brain tumour) when the person was 11 years old; a) Personal care: Assistance with activities of daily living, preparing meals, feeding assistance, medication assistance; b) Metastatic, colorectal carcinoma; b) Domestic support: cleaning, meal preparation, vacuuming, dusting, washing changing bed linen; c) Epilepsy; 52 hrs c) Transport for daily activities; 12 d) Depression; SCCH d) Assistive technology; [NDIA] e) Left clavicular fracture; and Individual plan - Service User 25/11/15 e) Social: assistance to access local community, assistance to manage money; f) Osteoporosis f) Home modifications; and g) Improved life choices. 2 Hrs a) Maintain personal hygiene SCCH Care / service plan domestic 21/11/13 b) Promote independence 195 No clinical information Unclear hrs of personal care c) Assist service user to remain at home [DSS] , SCCH service d) Avoid high levels of carer strain plan 21/11/13 e) Maintain Skin integrity f) Improve cleanliness of user's home. a) Maintain personal hygiene; 8 Hrs b) Promote independence; 414 No clinical information SCCH Service plan personal 7/2/12 c) Assist service user to remain at home; [DSS] d) Avoid high levels of carer strain; and e) Maintain skin integrity. a) Maintain a clean and safe home environment; 415 No clinical information 2 Hrs b) Identify and record safety risks; [DSS] SCCH Service plan domestic 16/7/12 c) Assist service user to remain at home; d) Avoid high risks of carer strain a) Reduce the social effects of isolation; 12 hours SCCH Service plan domestic 6/1/14 b) Improve and maintain the cleanliness and safety of the person's home environment; 418 No clinical information SCCH service plan community support c) Assist service user to remain living in their own home; [DSS] 6/1/14 d) Promote independence; and e) Reduce the effects of carer strain. a) Maintain personal hygiene; b) Promote independence; 827 No clinical information Unclear hours over 5 days SCCH Service Plan personal c) Assist service user to remain at home; [DSS] d) Avoid high levels of carer strain; and e) Maintain skin integrity. a) Osteoarthritis; b) Osteoporosis; c) Hypertension; d) Depression and anxiety; 70 hrs Online RSD Transactions 114 e) Gastric ulcer; Robyn Shaw - 01994 a) Personal care (three days per week): shower, dressing, skincare, foot care, supervise mobility. [DSS] f) Constipation; g) Irritable bowel syndrome; h) Kyphosis; and i) Thyroidectomy. a) Three strokes; 3 hrs SCCH 118 b) Pacemaker; Assessment 3/11/11 a) Personal care: Showering; and [DSS] c) Osteoarthritis; and Domestic service hrs unclear Service plan domestic b) Domestic assistance: Transport, house work, minor home maintenance. d) Sleep Apnoea. 26/5/14 a) Right Hip and Knee replacements, causing decreased mobility; b) Myocardial Infarction (heart attack) in January 2013; 191 c) Anxiety; Unclear Hrs over 5 days SCCH service plan Sept 2013 a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting; and [DSS] d) Hypertension; b) Domestic assistance: tidy bedroom, change bed linen, clean commode, dust furniture, prepare meals. e) Gout; and f) Respiratory tract infections. 201 a) Chronic obstructive pulmonary disease; and 29.5 Hrs 05275 RCTI fn ended 11 Feb 2016 a) Personal care: assist shower, assist dressing, skincare, oral hygiene, tidy bathroom, tidy bed linen, assist with toileting. [DSS] b) Confusion and memory loss. a) Ischaemic heart disease; b) Hypertension; c) Cerebral Vascular Accident; d) Type 2 diabetes; 229 e) Chronic renal impairment; Unclear Hrs over 5 days SCCH service plan 2/5/14 a) Personal care: assist shower, assist dressing, skincare, oral hygiene, tidy bathroom, tidy bed linen, assist with toileting, monitor & supervise mobility, encourage and promote independence, wound care. [DSS] f) Asthma; g) Hypomagnesaemia; h) Falls; and Hearing loss. a) Ischemic Bowel, b) Cardiomyopathy; c) Atrial fibrillation; d) Congestive Cardiac Failure; 9 Hrs a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting, oral hygiene, tidy bathroom, supervise and monitor mobility; and 252 e) Chronic Renal failure; SCCH b) Domestic assistance: offer tea or coffee, vacuum, dust, clean bathroom, washing, ironing, change bed linen, was dishes. [DSS] f) Hypertension; Assessment 23/12/13 g) Traumatic Brain Injury; h) Gastroesophageal reflux disease; and Hypercholesterolaemia 296 a) Dementia; and 7.5 Hrs a) Personal Care: assist shower, assist dressing, skin care, foot care, assist with toileting, shave, tidy bed, monitor and supervise mobility, assist grooming. [DSS] b) Intellectual impairment SCCH Service plan 12/08/14

Endnotes

1. See s 32(2)(b)(iii).
2. Section 35.
3. Section 32(3).
4. Section 95 of the Administration Act.
5. See Tasty Chicks Pty Ltd v Chief Commissioner State Revenue (NSW) (2011) 245 CLR 446; [2011] HCA 41 at [12]-[20].
6. See s 100(3) of the Administration Act.
7. Section 3.
8. See Home Care Service Act 1988 (NSW), which was repealed by cl 2(a) of Sch 4 to the Statute Law (Miscellaneous Provisions) Act 2016 (NSW) with effect from 28 June 2017.
9. See s 43(3) of the Lifetime Care Act (emphasis added).
10. See ss 11C(1) and 11C(2) of the Lifetime Care Act.
11. Within the meaning of s 4 of the Disability Inclusion Act 2014 (NSW).
12. As set out in the Disability Inclusion Regulation 2014 (NSW), Sch 1.
13. Clause 2.3.1 of the 2009 agreement provided that the "Department and the Service Provider recognise that the Service Provider is autonomous and acknowledge that, whilst receiving Funds from the Department for the Service, the Service Provider is not an agent, partner, employee or contractor of the Department for any purpose." Clause 3(e) of the 2012 agreement provided that the "parties agree that we are not engaging you to provide Services on behalf of us and that you are providing the Services to the community on your own behalf."
14. Clause 4(e) of the 2015 agreement provided that the "parties agree that we are not engaging you to provide Services on behalf of us and that you are providing the Services to persons in the target group (as defined in the DIA) on your own behalf."
15. Section 10(2) of the NSW Trustee Act.
16. See s 61-1(1)(f) of the Aged Care Act.
17. See s 11 of the TA Act.
18. See s 12 of the TA Act.
19. See s 23 of the TA Act.
20. See [192]-[194] below.
21. World Health Organisation, "Continuity and Coordination of Care: A Practice Brief to Support Implementation of the WHO Framework on Integrated People-centred Health Services" (2018, Geneva) at 8.
22. See HRC Hotel Services Pty Ltd v Chief Commissioner of State Revenue (NSW) [2018] NSWSC 820; (2018) 108 ATR 84 and Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue (NSW) [2019] NSWSC 657; (2019) 109 ATR 879 ("Bayton").