Therikildsen v Deemann Pty Ltd [2026] NSWPIC 138 | Case summary

The applicant Mr Leif Therikildsen alleges he was employed as plumber by the respondent Deemann Pty Ltd at the time he suffered injury when an oxygen regulator exploded on 5 April 2021.
The applicant lodged an injury claim form on 24 July 2023 naming the respondent as his employer. Liability was accepted on 6 September 2023 for injuries to the applicant's face and nose.
On 5 February 2024 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) disputing the applicant's claim on the bases that he was not a worker or deemed worker, the injury did not arise out of the employment, and the applicant failed to give notice of the injury and make the claim for compensation within the times prescribed in the 1998 Act.
The decision was maintained following internal review on 24 April 2025.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 24 September 2025 claiming weekly payments from 5 April 2021 to 28 February 2022 at pre-injury average weekly earnings (PIAWE) of $3,000, and lump sum compensation for 57% whole person impairment of his visual system.
At the preliminary conference held on 30 October 2025 the ARD was amended to include a claim for medical or related expenses as a result of the injury pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act).
The dispute was listed for conciliation conference and arbitration hearing on 21 November 2025.

Therikildsen v Deemann Pty Ltd [2026] NSWPIC 138 | Case summary | Zoe

[9]

The applicant relies on his statement signed on 27 August 2025.
The applicant is a qualified plumber/drainer/gasfitter and holds a restricted electrical licence, as well as excavator, skid steer operator and working at heights licences. He has completed the majority of a hydraulic engineer course.
The applicant owned his own business before commencing employment with the respondent known as Second Opinion Plumbing.
Mr Derek Lak, a licenced builder, set up the respondent company in around January 2016 and sought a licensed plumber to operate the business.
Mr Lak also partnered with Mr Tim Rogers in JDT Building, a different building company. Mr Rogers previously worked for the applicant in around 2009, he left to pursue other ventures in about 2011 and obtained his builder's license. Mr Rogers and the applicant would often send each other work.
In around February 2020 Mr Rogers asked the applicant to do some work through his new business for JDT Building and the applicant met Mr Lak.
Mr Lak told him his plumbing company was not operational because he did not have a licensed plumber. He asked the applicant on a few occasions in around the middle of 2020 to start working at Second Opinion Plumbing.
Although the applicant liked working for himself and he did not agree for some time, Mr Lak had a serious discussion with him in around September or October 2020. The applicant agreed to work for him and was told he would be an employee so the business could use his plumbing licence.
In about December 2020 the applicant and Mr Lak went to the Commonwealth Bank in Caringbah and the applicant was added as a signatory to the Second Opinion Plumbing account. He was also given a business debit card to utilise for the work at around this time and he could view the business account statements.
In about January 2021 Mr Lak told him he needed to put him on wages to keep the company's plumbing licence and he would do that the next week. Mr Lak kept delaying this, telling the applicant he was busy which the applicant accepted.
The applicant invoiced Mr Lak at the beginning of his work for Second Opinion Plumbing. This was in the interim while he was setting him up on wages. The applicant stopped providing invoices after a couple of months. Mr Lak paid him for made-up invoice numbers or asked hm to produce an invoice for materials or something other than wages.
Payments to the applicant were erratic and the agreed wages arrangement was not followed. The applicant was stuck in this cycle with Mr Lak for months - he would promise to put him on wages every week, he did not and he put money into the applicant's account.
Sometimes the applicant would schedule the jobs and notify Mr Lak for the purpose of scheduling and invoicing the job. Mr Lak checked in almost daily for updates and the applicant always sent him photos of the jobs he completed.
The applicant preferred to use his own tools because he was so used to them. At times he needed tools he did not have and when that happened he used the debit card to buy what he needed.
In about February 2021 Mr Lak told the applicant he got workers compensation insurance so that if anything happened to the applicant he would be covered.
The applicant understood that around that time Mr Lak registered the applicant as the licenced plumber for the respondent with Fair Work and he annexes a copy of the NSW Fair Trading website that confirms the applicant was the licenced plumber registered with them since February 2021.
The applicant has never had any employees under him or anyone above him to ask for advice. He was in effect the only employee, which meant he was completing most of the work, aside from Mr Peter Gallen who sometimes worked for the respondent as a casual.
Mr Lak told the applicant to wear a uniform when he was on the job.
The applicant describes his injury on 5 April 2021. Mr Lak called him on about 4 April 2021 and told him his company had secured a job with the strata of a complex to fix a leak under the driveway. Mr Lak said they got the job through the strata of Mr Lak's father's factory complex. The applicant said he was happy to help despite it being on Easter Monday as the job had to be outside normal business hours so the companies in the complex would not stop working.
The applicant in some situations where he worked outside his usual 40 hour week would get paid extra for the additional work, and so he assumed that would be the case on 5 April 2021.
Mr Lak did not explicitly say the applicant would be paid for this job but every job he did he was supposed to be paid. He did not work for free. The strata would be expecting to be charged out of hours labour rates for the works completed.
The applicant found out on 5 April 2021 that Mr Lak's father owned a unit in the industrial complex and he had engaged JDT Building to undertake the works to facilitate the repairs to the water service including all building works. JDT Building then engaged the respondent to repair the pipe.
At around 10.00am on 5 April 2021 the applicant attended the site and located the issue with the pipe. Using oxyacetylene was the only option to fix the pipe and he dug up the area around the pipe. He realised his oxy regulator was missing, which he assumes he had misplaced at some stage. Mr Lak had agreed to buy a new oxy set when his father said he had one in his factory that the applicant could use.
Mr Lak handed it to the applicant who examined and assembled it. While still talking to Mr Lak about the job the applicant turned it on and it suddenly exploded in his face. A projectile shot straight up into his nose then into his right eye. The bottle exploded and the force was immense. Mr Lak who was one metre away stumbled and Mr Gallen who was about five metres away fell over due to the blast.
The applicant was taken to Blacktown Hospital. The next day he was sent to Westmead Hospital where there was an ophthalmology team and plastic surgery facilities under one roof. As his eye was too swollen he was recommended dealing with the facial injuries and seeing the plastic surgery team, who recommended Auburn Plastics as more suitable for his injuries. The applicant was released from Blacktown Hospital on about 7 April 2021. He returned to Auburn Hospital on about 8 April 2021 to wash out his nose, repair his nasal bones which were fractured and repair the lacerations on his nose.
He had right eye surgery on about 26 May 2021 when the damaged lens was cut out, with the plan to sew a new lens in at the same time. As the eye had not healed enough a gas bubble was inserted into his eye. He had to lie on one side for eight days to aid in the healing process and remained in hospital until about 1 June 2021. Further right eye surgery was carried out on 18 August 2021. The applicant's vision has never fully recovered.
The applicant describes being homeless at this time, staying with Mr Garner, a friend, and living in a van he borrowed from Mr Lak.
Mr Lak told the applicant some time between about October 2021 and February 2022 when asked that the applicant was not eligible to make a workers compensation claim because he never actually put him on wages.
The applicant believed him and did not really understand workers compensation. Having debts he had to recover he had to get back to work as soon as he could. In about February 2022 he started working for Mr Lak again and the respondent in the same role as prior to the injury.
Mr Lak paid for him to stay in a boat shed, calling it a 'home office' on the company's tax returns while deducting rent from his pay.
In about May 2022 Mr Lak again wanted him to become a partner in the respondent company but the applicant did not want to put the company at risk due to debts at that time.
The applicant worked for Mr Lak until around March 2023. He understands the company wound up when he stopped working there because there was no plumbing licensee. He stopped working for Mr Lak as he was paid irregularly and his pay was withheld when customers did not pay their bills. He thought Mr Lak was hiding a lot of things from him and from Mr Rogers in the respective businesses.
In 2023 the applicant re-opened an old business he had and worked as a plumber out of that entity, doing the best he could given the restraints from his injury.
His photophobia was worsening and in about July 2023 he was treated at the Sydney Eye Hospital.
At around that time the applicant decided to take matters into his own hands and called iCare to check details of the policy Mr Lak had originally told him he had taken out for him. He was told there was a policy between 4 February 2021 and 31 January 2022. He made a claim that was provisionally accepted and then declined in around February 2024.
The applicant sets out why he feels it is quite clear he was employed by the respondent on the date of the accident, and the inaccuracies in the statements of Mr Lak, Mr Rogers, Mr Garner and Ms Cunningham, his former partner.
He describes the symptoms and disabilities resulting from his facial and visual injuries.
Although the applicant has been able to work in his pre-injury plumbing role since about February 2022 he has to work more slowly because he can only see properly from his left eye. This has made some jobs, especially those requiring detailed work, more difficult and they take longer. His ability to focus is greatly diminished.
The applicant says he should be at the peak of his career and in a project management role running jobs, but he is prevented by his reduced ability to read complex plans and work through extensive paperwork and screen work. This greatly affects his potential earning for the rest of his work career.

[27]

In his statement to the respondent's insurer signed on 17 September 2023 the applicant describes previously working for the respondent as a licensed plumber to operate his business. Mr Lak was essentially a silent partner handling paperwork and offering support while the applicant held the plumbing licence for the company. He started working for the respondent sometime in 2020.
In early 2021 the applicant had a conversation with Mr Lak who told him he needed to be on wages as the plumbing licensee of the respondent company which is how it "sort of began in 2020".[1] Mr Lak asked him to come over and work for him.
No contract had been signed at the time of the accident and it had not been drafted. They were discussing setting everything up properly in early January and leading into February 2021.
The applicant was still in limbo but contracting to Mr Lak at a set hourly rate, or more of a weekly package. It was supposed to be the sum of $3,000 per week as a minimum.
The applicant received no superannuation or a pay slip for all the time he worked there. There were no standard hours but there was a base of 40 hours per week and any overtime or emergency call outs if available would be paid at an extra amount.
The idea was that the applicant would be running things on the ground, handling subcontracted trades, managing jobs and handling paperwork.
The applicant was always paid in irregular amounts. It was regular at the start in January 2021 but after the accident when he returned to work the respondent made sporadic bank deposits.
In December 2020 when they decided to set everything up the applicant always had access to the respondent's bank account. The applicant could see all the transactions but could not make payments.
On 5 February 2021 the respondent made two payments to iCare and Mr Lak mentioned to the applicant that he had taken out a workers compensation policy for him and he was just getting his wages set up which he would get done in the next week.
The applicant was supposed to start on wages in the four days after the Easter long weekend in 2021 with the last payment made around 27 February 2021. The respondent used cardless cash to give the applicant some money for some food and essentials when he told him he had none and had still not been paid.
The applicant kept requesting payment and at some point Mr Lak simply started depositing money into his account with an "invoice to be advised" note because he did not have the applicant's book so he was not sending him invoices.
The applicant says "[e]ven though we were supposed to be on wages and have everything set up, it seemed that, at least, we were getting paid and everything was fine."[2] The last payment may have been on 7 March 2021.
Mr Lak called the applicant on 4 April 2021, Easter Sunday, and said they had a job at Girraween. Mr Lak's father's factory complex had a leak under the driveway and they got the job through the strata. The applicant says the job actually came though Mr Lak's father and it had to be done after hours either one night during the week or the following day.
Mr Lak did not explicitly say the applicant would be paid for this job but every job he did he was supposed to be paid. He was not working for free.
The applicant describes the job, the accident on 5 April 2021 and the treatment he received. The applicant was under financial strain after the accident and had to vacate his unit. His family helped him financially and he owed money to his brother and to child support with his debts adding up to approximately $150,000.
The applicant describes his circumstances following the accident when he returned to work for the respondent. He was living with friends, sleeping in a van and was essentially homeless.
After the accident Mr Lak mentioned the applicant would not be covered by workers compensation. There was no history of payment of wages yet and no actual bank transfer indicating that he had wages so he would not be covered.
The applicant says he feels stupid now that he did not investigate this two years ago but at the time because they were friends he did not want to cause a problem and there was so much going on with all the trauma, surgeries and specialist appointments.
The applicant ended up calling iCare who confirmed the respondent had a policy that ran from 4 February 2021 to 31 January 2022 and the applicant thought he was covered.
He made the decision to stop working for the respondent when he had not been paid for so long and he felt the respondent was using him. They stopped talking and the respondent refused to give the applicant back his car that was parked on the respondent's front lawn.
The respondent company stopped after the applicant left because Mr Lak had no one else working for him.
The applicant was back working for himself as a sole trader with no stable hours and with limitations on what he can do. He has so much debt it will take another four or five years to pay back.

[28]

Mr Lak signed a statement on 29 November 2023.
Mr Lak is associated with two companies, JDT Building Pty Ltd with his business partner Mr Rogers from 2018, and the respondent company in which he serves as the sole director.
Mr Lak started the respondent company in January 2016 as a business offering home renovations to clients. He employed the applicant on 2 May 2022 and it was supposed to be an equal partnership, similar to JDT Building Pty Ltd. Mr Lak met the applicant through Mr Rogers who used to work for the applicant. Over four years Mr Lak and the applicant were great friends and Mr Lak was asked to be best man at the applicant's wedding.
The applicant refers to his own business as both HPS Plumbing and Hydraulic Plumbing Services which appears on his invoices and should be considered interchangeable.
JDT Building started hiring the applicant as a subcontractor through his business Hydraulic Plumbing Services and the applicant invoiced that business for his work 40 times between February 2020 and November 2020. The first invoice number was 1046 in February 2020.
The applicant was unreliable and there were many complaints made to JDT Building on the quality of his work or his tardiness in attending. JDT Building lost a large customer due to the applicant's broken promises and they started to use additional plumbers to cover the important jobs.
Mr Lak nevertheless developed a friendship with the applicant and thought he could mentor him to operate his plumbing business better. Mr Lak started to lend the applicant money and the applicant started not turning up at jobs because he said he had no money or fuel. Mr Lak continued to help him on the promise it would all get paid back once some of his invoices to other clients got paid.
Mr Lak describes problems with the way the applicant approached his business and in November 2020 Mr Lak and Mr Rogers decided to stop using him and HPS completely.
Mr Lak said he could work with the applicant to find him other work though the respondent company and the applicant started as a subcontractor in 2021. The applicant invoiced from Hydraulic Plumbing Services, the same as he had to JDT Building, and he hired employees.
The applicant provided his own tools and equipment, made his own appointment times with clients and hired his own employees to help him perform the work. Mr Lak would agree on a job with the applicant who would then coordinate everything. Mr Lak had no control over how the job was done, when it was done, if the applicant did the work himself or sent employees or subcontractors to do the work.
As the applicant never had any money in his HPS company accounts he could not afford to buy required materials for jobs and Mr Lak agreed to provide the materials. Mr Lak agreed to give the applicant a credit card from the respondent company to only be used to purchase materials. The applicant was to advise Mr Lak every time it was used with photos of the receipts to be sent to Mr Lak, which the applicant did.
Mr Lak describes the applicant's physical injury on 5 April 2021 resulting in the need for multiple surgeries over a nine month period to recover.
When the applicant recovered from his operations in 2022 and no further treatment was required he was broke and couch surfing for accommodation.
Based on conversations between Mr Lak and the applicant the applicant began officially working for the respondent on 2 May 2022, sponsored through a government long term unemployed return to work program. The applicant initially wanted to only work 20 hours a week so he could maintain his welfare payments from the government.
Any discussion about wages, based on the income the applicant said he needed of $3,000 per week, only occurred as part of offering the applicant employment in 2022. Mr Lak has never taken payment or a wage from the respondent company as it was never profitable under the applicant's operation of it and it is heavily in debt.
While the applicant was subcontracting to the respondent before the injury the applicant worked his own desired hours and created his own invoices. Mr Lak had no control over the amount he invoiced, how many hours he would work, or when or where he would work. As a subcontractor he had complete autonomy managing his own work and hours and the hours of his employees. The applicant was not an employee and never earnt a wage from the respondent.
The applicant was paid a basic income every week after he became an employee in May 2022. In June 2022 the applicant discussed working a full 40 hours a week to earn more income. Mr Lak started lending the applicant money because he was struggling to cover living expenses, rent and his children's school fees. The applicant was spending more than the company earned every week.
Mr Lak says the applicant's claim that he took out a workers compensation policy "for him" is 100% untrue. The applicant only wanted to work as a subcontractor under his own company Hydraulic Plumbing Services. He had other clients he worked for with HPS Plumbing and never asked to be an employee for that reason. Hydraulic Plumbing Services had multiple customers it contracted to, the applicant employed staff and he had full autonomy on where, when and how a job would be done. He only became an actual employee of the respondent in 2022 after he recovered from his injury when he wanted to shut HPS Plumbing down.
Mr Lak says he held iCare policies in the respondent company for many years, dating back before Mr Lak knew the applicant. He knew it was a legal requirement for him to have coverage for himself.
The injury on 5 April 2021 did not occur in a workplace setting Mr Lak says, and they were not working at the time. The applicant is using their friendship to confuse the issue. They were friends who helped each other out, often assisting at each other's homes and it was never paid work, just friends doing each other favours.
The applicant became close friends with Mr Lak's father and they regularly visited and had dinners together. Mr Lak's father was very supportive of him being a mentor to the applicant and he also offered him both financial and strategic support.
The job on 5 April 2021 was a simple water leak. The applicant arrived at Mr Lak's father's place much later than the arranged time and he had no tools with him. The applicant called Mr Gallen and asked him to pick up his truck from the worksite he had left it at and drive to Mr Lak's father's place so they had the tools they required.
Mr Lak told the applicant to then send Mr Gallen home as this was never agreed and it was a public holiday where the two of them were doing a favour for Mr Lak's father. Mr Lak said it was not a paying job and he could not afford to have a staff member there who would be getting paid public holiday rates. The applicant said Mr Gallen was a close friend and he would sort it out with him as Mr Gallen owed him a favour for some time he had taken off work in the previous few weeks. The applicant said there would be no charge for Mr Gallen being there and admitted he wanted him to do the physical work to dig the hole as he was not feeling well from the night before. This was not an official job, affirmed by Ms Cunningham's statement.
Mr Lak then describes the accident on 5 April 2021. Mr Lak says there is also evidence to show the applicant knew this was not a workplace injury in the initial hospital records and all further doctor visits.
About a month later the applicant approached Mr Lak about being an employee and claiming on WorkCover and Mr Lak refused as there was no history of employment or wages paid to him.
The intention when he employed the applicant in the respondent company was to build something the applicant would own and he would be able to support himself and his family in the future. Mr Lak suggested the applicant become a joint director of the company but the applicant declined Mr Lak says because of the applicant's concerns about being required to pay child support.
Mr Lak terminated the applicant's employment with the respondent on 9 March 2023.
There are a number of annexures to Mr Lak's statement, many of which relate to arrangements between the parties in 2022.
The annexures include the applicant's first invoice from Hydraulic Plumbing Services to JDT Building on 28 February 2020, and an invoice on 17 July 2020 when Mr Lak first met the applicant in person on a job attended by the applicant and his employee Brent.
Other annexures include the residential tenancy agreement for the use of the boat house by the applicant is dated 4 February 2022 and there are photos of the applicant carrying out work after the Queensland floods in March 2022.

[29]

Mr Rogers provides a signed statement on 24 October 2023. He has known the applicant for approximately 15 years through direct employment in his business and as a friend after that time. They referred work to each other or hired each other's services as needed.
The applicant has been subcontracted by JDT Building in the past through his company HPS Plumbing in 2020 and 2021 plus his employment through the respondent company in 2022 and 2023.
Mr Rogers describes the applicant's debts, drug use, their shared work history, the injury and his employment with the respondent.
In 2021 they were all good friends and shared business together where possible. As Mr Lak and Mr Rogers knew the applicant was in debt and looking for extra work they agreed to hire him via his company HPS Plumbing to do any available plumbing work in their building business. Mr Rogers is aware the applicant had helped out both of Mr Lak's parents for free as a favour in the past and he had done the same thing for Mr Rogers many times at his house.
Mr Rogers was aware the applicant was helping Mr Lak at his father's factory on the day of the injury for free as it was a small water leak that should be easily fixed and it was supposed to be a quick morning job finished before lunch.
The applicant had debt with his company HPS Plumbing and let the company registration lapse. Mr Lak offered to employ the applicant through the respondent in about May 2022 under a sponsored return to work program.
Mr Rogers vividly recalls Mr Lak calling him on 5 April 2021 to say the applicant had been injured. They agreed to do whatever they could to support him through this recovery time.
Mr Rogers sets out the applicant's subcontracting work with JDT Building on multiple jobs, describing three of the main jobs, and that the applicant's eye injury had zero effect on his ability to work. The applicant was able to perform 100% of his normal duties as would be expected of a tradesman, including very physical work. He often worked 12 hour work days for JDT Building.
Mr Lak was devastated when Mr Rogers revealed to him the applicant had been purchasing building materials for personal use from JDT Building.
Mr Rogers believes the applicant is still able to operate as a fully qualified and competent plumber and he believes his eye injury has not impacted his performance or employment ability in any way.

[32]

An email signed by Derek Lak from JDT Building Pty Ltdis dated 21 January 2021 and refers to a project that was intended to be completed by 30 January 2021. An email from a redacted name dated 31 March 2021 with the applicant copied in complains about the project, and Mr Lak's email of 15 November 2023 to a redacted person includes that the applicant was issued this job and given full autonomy with no instructions from the respondent company on how to perform any activities.
The email of 31 March 2021 from a redacted name says the applicant had not performed to the level of service he committed to when quoting the job, the site had been unsecure the whole time he had been working there, the yard had been used as storage for the applicant's machinery and had never been left in an acceptable state, and they would not recommend them.
Mr Lak's email of 15 November 2023 says the email referred to above is addressed to Mr Lak at his work email address and includes the applicant at his HPS work email address, showing the client knows the applicant to be a subcontractor to the respondent.
Mr Lak says the applicant was given full autonomy on the project, which appears to have run from January to March 2021, with no instructions from the respondent company on how to perform any activities. The applicant was simply given a deadline to finish it by. The applicant hired and paid his own staff to work with him on the job through HPS and used all his own tools and equipment other than the excavator that they hired for the duration of the job.
The job took over three months rather than four weeks and the applicant was performing work for other private customers of his through HPS Plumbing and using the site to store his own equipment and machinery.
Mr Lak says the email of March 2021 shows the applicant was operating independently with his own HPS staff to complete the works. Mr Lak had no control over the applicant's activities or how he completed the work, which shows he and his staff and HPS Plumbing to be a true subcontractor and not an employee.

[48]

The applicant lodged written submissions on 8 December 2025. These are summarised below.
The applicant refers to his statement that details his relationship with the respondent.
Attention is particularly drawn to the applicant's statement evidence of a conversation with Mr Lak in around September or October 2020 when he agreed to be an employee of the business, being added as a signatory to the respondent's bank account, a discussion in or around January 2021, that he only invoiced the respondent at the start of his work in the interim while Mr Lak was setting him up on wages, payments were erratic, a workers compensation policy was taken out by the respondent, the applicant was registered as a licenced plumber for the respondent, he has never had any employees under him and he was in effect the only employee of the respondent, and he was told to wear a uniform when he was on the job.
The applicant details his injury and the events leading up to it. He presumed it was paid work on 5 April 2021 for a strata company that engaged JDT Building who in turn engaged the respondent.
The treatment the applicant received for his injuries and his homelessness are referred to in the applicant's submissions, as well as his symptoms and disabilities since the accident.
Attention is drawn to Mr Lak saying words to the effect that the applicant was not eligible for workers compensation because he was never actually put on wages.
The applicant suggests the respondent's business appeared to be wholly reliant on the applicant as there was no work after the applicant's injury.
Mr Gallen's statement tends to support the applicant's assertions that he was an employee of the respondent. Mr Gallen invoiced Mr Lak for his work. Mr Gallen's statement clearly supports the applicant's version of events and should be accepted as credible and reliable.
The applicant submits the medical evidence of Dr Steiner confirming the injury and the applicant's incapacity for work should also be accepted, and regard should be had to the various medical material in the ARD.
The applicant refers to the claim form that nominates the respondent as his employer and that he started work in 2020. The earnings of $3,000 per week is not reflected in any of the documentary records the applicant submits, however that does not in and of itself establish that it was not the agreement between the parties.
The respondent's evidence includes the employment contract which is of limited relevance as it postdates the injury and was not the agreement in place at the time of the injury.
The applicant submits there was not a written contract at the time of the injury. The applicant submits he was a worker having a contract of service, and in the alternative he is a deemed worker.
DP Roche in Riverwood Legion and Community Club v Morse[4] said a contract for service must be established and the fundamental principles of contract law apply. The applicant refers to the multifactorial test in Stevens v Brodribb Sawmilling Co Pty Ltd[5] although the control test in the first instance remains the surest guide to whether a person is contracting independently or serving as an employee.
The applicant then applies some relevant considerations to the circumstances of the present case; the mode of remuneration of $3,000 per week, the provision and maintenance of equipment, the obligation to work, the right to dismiss, the right to have a particular person do the work, the right to dictate the place and hours of work and payment by the employer of expenses from his remuneration of the worker, the nature of the work, the uniform, and the right to exclusive services of the person engaged.
The applicant submits there was the formation of an oral contract, and although there is a lack of documentary evidence supporting a contract of service (the applicant concedes some documents suggest a contractor relationship), the indicia based on the applicant's evidence still lends itself to that of an employee.
The applicant emphasises from his statement evidence that he was induced to leave his own company and would be paid $3,000 per week, he was performing work for the respondent and held the applicable plumbing licence so that the company could practise, he was added as a signatory to the respondent's account and was given a business card to put expenses through, he felt secure in his employment and interpreted the contract as one of employment, and there was a considerable degree of control over the applicant. He also believed a workers compensation policy had been taken out on his behalf.
Having regard to the entirety of the evidence the Commission ought to be satisfied the applicant was worker.
If not so satisfied, in the alternative the applicant submits he was a deemed worker.
In the event the respondent was contracting rather than entering into a contract of service, it is somewhat unclear whom the respondent was contracting with. HPS is the entity who appears to have been paid for the work however the invoices produced by the respondent are less clear, going to a different business name Hydraulic Plumbing Services with what appears to be a different ABN. Further, the account number nominated for payment on those invoices also differs from that of HPS even though it would appear that the HPS account was that which was paid.
Either way the applicant submits the deemed worker requirements are met.
Relevant considerations are that the applicant had contractual relations with the respondent, at the time of the injury the applicant could not have been working as an employee or otherwise of HPS as the evidence suggests the ABN for this entity was cancelled on 1 April 2021, there is no reasonable suggestion the applicant sublet the contract or employed workers in the performance of the contract, Mr Gallen invoiced Mr Lak directly, monies that were paid pursuant to any invoices appear to hit the account of H.P.S. (Aust) Pty Ltd, a company that appears to be de-registered in or around March 2021, the respondent appears to provide bank statements for HPS from January 2021 to 4 February 2021 (coincidentally the start date upon which the applicant becomes the 'nominated supervisor' of the respondent), the bank statement shows payments are made to HPS potentially from the respondent in that period consistent with the applicant's evidence about payments, and the evidence of invoices produced does not specifically refer to the HPS company entity. The respondent has failed to produce invoices beyond 3 February 2021 again consistent with the applicant's evidence.
Regarding the allegation that the applicant was not actually working on 5 April 2021, he submits that assertion borders on the absurd when one considers the work was being performed in relation to a strata company contracted by the building company and performed by the plumbing company.
The applicant asserts he was performing and had the expectation that he was in employment on the day, or in the alternative he was working in the capacity of a deemed employee on the day, but either way there is no reasonable suggestion he was not in fact working on the day.
In respect of weekly payments, the applicant claims from 5 April 2021 to 28 February 2022, a period in which he was unable to work as demonstrated by Dr Steiner and the applicant's statement evidence that outlines his difficulty since the accident. The applicant should be paid accordingly, having sustained a serious injury.
In relation to the late claim, the applicant submits he provides logical evidence in this regard.
The respondent was clearly on notice of the injury and the applicant's evidence in relation to lodging the claim should be accepted as reasonable in the circumstances. The failure to lodge a claim was clearly occasioned by ignorance, mistake or other reasonable cause.
The applicant submits his s 66 WPI lump sum compensation claim should be referred for medical assessment.

[49]

Counsel for the respondent prepared written submissions that were lodged on 19 December 2025. These are summarised below.
The respondent denies liability for the applicant's injury on the grounds he was not a worker or deemed worker, the injury did not occur in the course of employment with the respondent, the applicant failed to lodge his claim within six months, he is not incapacitated for work as alleged and he is not entitled to expenses for medical treatment.
The contention the applicant was a worker is demonstrably wrong on the evidence; the applicant fails to explain why Mr Lak would have waited four years until 2020 before having a licensed plumber and it appears the respondent carried out work using subcontract plumbers such as the applicant without the need to employ anyone, the applicant says he dd not wish to become an employee in mid-2020 which the respondent submits is a clear acknowledgement that at least at that time he was operating his own business as a contractor, the applicant's evidence about acceptance of the alleged employment offer made by Mr Lak in 2020 is vague and unpersuasive as he simply says he would help him with the plumbing work, the only particular term the applicant refers to is the rather fanciful suggestion he would be paid $3,000 per week, Mr Lak sets out the subcontract relationship with the applicant, Mr Lak attaches invoices issued by Hydraulic Plumbing Services for work performed in January and February 2021, the provision of the credit card was to allow the applicant to purchase materials for jobs as the applicant was heavily in debt, and Mr Lak says he made no offer to pay the applicant $3,000 per week.
There is no written contract and the absence of that evidence stands in direct contrast the employment contract and supporting documents in 2022.
In the absence of a written contract the applicant seeks to rely on the indicia discussed in Stevens v Brodribb and Hollis v Vabu Pty Ltd.[6] There is a useful analysis of matters to consider in On Call Translators and Interpreters Agency Pty Ltd v Federal Commissioner of Taxation (No 3);[7] what is required is an objective assessment based on the totality of the relationship between the parties.
The respondent submits that when approached in that manner the evidence does not support a finding that the applicant was an employee prior to the injury in April 2021.
The matters that support that conclusion include;

[51]

The respondent's submission is the evidence clearly supports a finding that the applicant was a contractor and not an employee.
The applicant points to ceasing as director and secretary of Hydraulic Plumbing Services in late March 2021 however there is no evidence such as bank statements after February 2021 and there has been no explanation for the failure to produce those documents.
It is not clear Hydraulic Plumbing Services (Aust) Pty Ltd is in fact the same business entity that invoiced the respondent in 2021 as the invoices are simply in the name Hydraulic Plumbing Services with the applicant's bank details, not explained in the applicant's evidence.
There is no evidence produced that shows what the applicant claims were payments of wages by the respondent from late 2020 until the injury. The respondent submits the bank statements show the applicant continued to derive income in 2021 by issuing invoices in the name Hydraulic Plumbing Services for contractor work and not as an employee.
The evidence only shows the applicant changed the way he operated the Hydraulic Plumbing Services business from March 2021. There are no bank statements after February 2021. Whether the applicant operated under the company name or the business name is highly significant as it is a quite different type of legal relationship and the applicant's evidence does not address this.
The bank statements produced do not contain any records that are referable to the payment of wages to the applicant by the respondent. The applicant has failed to produce bank records showing what he claims were payments of wages by the respondent and instead relies on a series of self-serving and uncorroborated assertions to support his case.
In the absence of a persuasive explanation by the applicant of the failure to put material before the Commission, the respondent says an adverse inference similar to a Jones v Dunkel[8] inference should be drawn against the applicant that the material would not have assisted his case.
Another impediment to the applicant's claim is that his personal income tax return for the financial year ending 30 June 2021 declares he did not receive any wages and his only income source was government allowances and $1 earned in interest. The Commission could not possibly find the applicant was a reliable witness and has come anywhere near demonstrating he received wages from the respondent.
The respondent refers to the evidence about applicant's reliance on the application by the respondent for a trade licence using the applicant's name is not persuasive of an employment relationship as it refers only to the applicant as a contractor.
The other indicia relied on by the applicant in submissions are also not persuasive that there was a contract of employment and his evidence on which most of his submissions are based is self-serving, uncorroborated and contradicted by evidence from Mr Lak and Mr Rogers.
Serious questions arise from the evidence about the credibility of the applicant as a witness; the failure to declare any personal income in his 2021 income tax return when his evidence is he was paid wages by the respondent in that tax year, and Mr Lak's and Mr Roger's statements about the fraudulent misappropriation of funds from JDT Building and the respondent.
The respondent submits where there is a factual contest between the evidence of the applicant and the respondent's witnesses the latter evidence should be preferred given the applicant's credit issues.
In respect of the other indicia, the respondent submits; the applicant concedes he usually used his own tools, his evidence on the obligation to work and the right of dismissal is scant and unpersuasive, that he was the only person doing the work for the respondent is more consistent with him working as a subcontractor, the respondent pausing work after the applicant's injury is consistent with him being a contractor for the purpose of the licence, the applicant's evidence is that the respondent did not control how he carried out the work or the hours and no degree of control is demonstrated, the applicant's evidence does not show the respondent had the right to the exclusive services of the applicant with no evidence of the invoice numbered 1133 and or of invoices after 3 February 2021, so the Commission could not be satisfied the applicant worked exclusively for the respondent on the brief evidence.
The evidence also falls well short of establishing the applicant was a deemed worker the respondent submits.
The applicant's own evidence is that he was performing work in 2020 as a trade or business performing plumbing work and he worked for both JDT Building and the respondent in that capacity. Even on his own evidence the applicant continued to issue invoices to the respondent for plumbing work he performed consistent with his previous business practice. The Commission would not be satisfied the work performed by the applicant in 2021 for the respondent was not work incidental to a trade or business.
The cancellation of the ABN for Hydraulic Plumbing Services on about 25 March 2021 is not sufficient to prove otherwise, and it was apparent he was holding himself out as carrying out the trade of plumber and carrying out plumbing work in early 2021 contrary to his assertion he ceased doing so in 2020. By not fully disclosing and producing his business records, both personal and for Hydraulic Plumbing Services, the applicant cannot successfully rely on cl 2, Schedule 1 of the 1998 Act.
The respondent points to the medical records of the Sydney Eye Hospital including that the injury was not work related and he has not been able to work as a self-employed plumber since. A further entry says the applicant is still not able to return to his own business as a plumber due to vision.
The respondent's submission is that these entries show that at the time prior to and immediately following the injury the applicant did not consider himself to be an employee and he was plainly aware he was a self-employed plumber at the time of the injury. The entries are not addressed in the applicant's statement evidence.
There is also a question as to whether the applicant employed a worker when performing work on 5 April 2021. Mr Lak's evidence is the applicant would have an employee when subcontracting for JDT Building and he would often send out other contractors to do a job, again unchallenged by the applicant.
The applicant denies Mr Gallen was an employee and refers to him invoicing he respondent. The respondent says it was more likely than not that Mr Gallen was engaged to perform the work on 5 April 2021 by the applicant.
For these reasons the respondent submits the applicant was not a deemed worker.
The respondent submits the applicant was not injured in the course of employment on 5 April 2021. Mr Lak says the work performed that day was done as a favour to his father who had a unit at that site and it was not a paying job, Mr Gallen would not be paid and the applicant said he would sort it out with Mr Gallen.
This evidence is supported by Ms Cunningham's statement, that the applicant told her the accident happened when he was helping out Mr Lak and he had said there would be no income from the job. The applicant does not deny the content of Ms Cunningham's statement.
The respondent submits the applicant also attacks Ms Cunningham's credit as a witness and that Mr Lak is not a truthful witness, however their evidence regarding the applicant is corroborated by Mr Garner.
The evidence of Mr Lak, Mr Rogers and Mr Garner together with the concession made by the applicant that he did purchase items for personal use without authority and the irreconcilable inconsistencies in the applicant's own evidence must inevitably lead the Commission to find the applicant is not a credible and reliable witness, so that where there is a factual dispute between the applicant's evidence and the respondent's evidence the evidence of the latter should be preferred.
With respect to delay, the applicant made the claim on 24 July 2023 and the applicant has not satisfied the limited discretionary power to award compensation after six months where the delay is due to ignorance, mistake, absence from the State or other reasonable cause.
The applicant's evidence is he was aware he had a potential entitlement to a claim in about October 2021 and he accepted Mr Lak's statement that he was not eligible and he took no further action.
That evidence is not consistent with Ms Cunningham's evidence that he told her as he was not being paid for the job he could not make a claim. The applicant also refers to a conversation with iCare at an unspecified time which indicates he had an understanding about a potential entitlement.
The respondent's submission is the applicant's evidence addressing s 261(4) of the 1998 Act is confusing and inconsistent and this has not been met.
With respect to capacity, the respondent submits the applicant was not an employee or deemed employee and he was not injured in the course of employment, however makes submissions on the issue of capacity.
The weekly amount claimed of $3,000 exceeds the maximum amount and would be capped.
Mr Lak explains he did not discuss that sum in 2021 and explains the likely basis for that figure in his statement.
The applicant was undoubtedly incapacitated for some period immediately following the incident on 5 April 2021 however there is scant evidence addressing his capacity for the period claimed. The applicant relies on Dr Steiner's opinion over three years later, a view accepted by Dr Martin.
There is evidence however that the applicant did in fact carry out work during the claimed period of incapacity. Mr Garner states he employed the applicant to work as a plumber after the 2021 injury and paid him in cash.
The Commission would not be satisfied on the basis of Mr Garner's evidence that the applicant was incapacitated for work for the whole of the period claimed.
For those reasons the respondent submits there should be an award for the respondent.

[53]

(a) it is not the applicant's role to speculate as to why Mr Lak waited four years to employ a plumber;

(b) the applicant concedes he did not have a written contract at the time of the injury however he alleges in addition to the $3,000 per week he would assist with the plumbing licence, he would be paid no matter how many hours he did as long as he got the work done, and Mr Lak asked him to leave his own company and work for him;

(c) the applicant obtained a company debit card, ceased invoicing the respondent company at a certain point and was told by Mr Lak in or about January 2021 that he would be put on wages to keep the pluming licence;

(d) while there are various terms lacking, there is sufficient indicia to be satisfied a contract of services was formed, and $3,000 per week is indicative of a regulatory that points to wages;

(e) the versions regarding the date the contract was formed are broadly consistent albeit with certain dates approximated, but not to the extent that it undermines the applicant's evidence that particular discussions are alleged to have taken place;

(f) the applicant provided invoices for a period and any confusion in regard to the details as to who was originally invoicing does not necessarily result in an inference that the applicant was not an employee at the time the injury;

(g) the applicant does not appear to have received the agreed wages of $3,000 per week;

(h) the last invoice does not post-date February 2021 and the respondent should have been able to produce evidence if there were more invoices;

(i) the applicant's reference to invoicing the job is presumably to invoicing the work to the client and not the applicant invoicing the respondent;

(j) the mere payment of various invoices does not necessarily correspond to the period in which the work was performed, and the applicant says he did not work anywhere else;

(k) in relation to the issue of deemed worker, the applicant reiterates his statement that all his work was for the business and he did not work anywhere else;

(l) in relation to the Sydney Eye Hospital entries these should not be preferred over the applicant's more comprehensive version of events, and the applicant refers to the caution with which clinical notes should be approached;

(m) Mr Gallen's invoice of 5 April 2021 supports the applicant's submission that he was in the course of employment;

(n) it is not believable the applicant would perform a favour for the ultimate benefit of a strata block and Mr Gallen's evidence is consistent with the applicant's evidence that he was an employee or alternatively a subcontractor and that it was paid job and Mr Lak's evidence should not be accepted;

(o) the applicant should not be found to not be a credible or reliable witness;

(p) in relation to s 261, Ms Cunningham's evidence should not be accepted and the applicant has given a reasonable excuse, providing a relevant chronology dealing with his delay in making a claim, and

(q) generally the applicant's evidence should be accepted.

[55]

Under s 9 of the 1987 Act a worker who has received an injury shall receive compensation from the worker's employer in accordance with this Act.
Under s 4 of the 1998 Act a "worker" means a person who has entered into or works under a contract of service with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).
There is no dispute the contract between the applicant and the respondent was oral. Whether the contract can be categorised as a contract of service or a contract for services is in dispute. To be entitled to compensation for his injury on 5 April 2021 the onus is on the applicant to establish that a contract of service exists.
While the applicant submits he was a worker or deemed worker and the respondent submits he was neither a worker nor a deemed worker, the label the parties attach to their relationship is not determinative, and rarely of assistance.[9]
Wigney J observed in JMC Pty Limited v Commissioner of Taxation[10] that the characterisation of a relationship as either one of employer and employee or as involving the engagement of an independent contractor is ultimately an evaluative judgment taking into account the totality of the parties' contractual rights and obligations, which in some cases may point in different directions.
Determining the characterisation of the relationship often hinges on two considerations; first is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work, and second, the extent to which the putative employee can be seen to work in their own business as distinct from the business of the putative employer.[11]
Having considered the evidence I find there was no contract of service in accordance with s 4 of the 1998 Act and the applicant was not a deemed worker in accordance with cl 2 Schedule 1 of the 1998 Act on 5 April 2021 for the following reasons.
The traditional approach to determining whether there is a contract of service or a contract for services is to apply the multifactorial test discussed Stevens v Brodribb and Hollis v Vabu,[12] assessing the totality of the relationship by applying various indicia of employment_._
The multifactorial test and a consideration of the totality of the relationship are still relevant in determining whether a person is a worker, however the contract is the starting point.
In the context of a written contract, the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[13] and ZG Operations Australia Pty Ltd v Jamsek[14] viewed the legal rights and obligations established in the contract as decisive of the character of the relationship. A contract of employment must be construed in accordance with established principles of contractual interpretation.[15]
The principles discussed by the majority Personnel Contracting were with regard to a comprehensive written contract where its validity was not in dispute. There are also aspects of the High Court's observations in Personnel Contracting and Jamsek which assist where a contract is partly or purely oral.[16]
In the absence of a comprehensive written contract the fundamental task remains to ascertain and characterise the parties' contractual rights and obligations, first by examining evidence of the relevant conversations between the parties.
There is contradictory evidence in this case regarding conversations between the applicant and respondent in 2020 and 2021.
Mr Lak's evidence is that in 2020 he said to the applicant he could work together with him to find other work through the respondent company and the applicant was very thankful for this offer. Mr Lak started hiring the applicant as a subcontractor in 2021, the applicant invoiced through his business Hydraulic Plumbing Services, he was not an employee, and the applicant hired employees to help him perform the work.
The applicant's statement evidence is that:

[59]

I accept the respondent's submission that the applicant's evidence about acceptance of the alleged employment offer made by Mr Lak in 2020 is somewhat vague. I agree with the applicant's submission that the applicant's statement evidence while somewhat vague is broadly consistent.
Particularly where there is no evidence of a particular conversation, the terms of an oral contract may be inferred from the circumstances including the course of dealings between the parties.[22]
The evidence regarding the subsequent conduct of the parties is also contested however, so that inferences cannot easily be drawn as to the meeting of minds necessary to create a contract or what obligations may have been undertaken.[23]
The respondent submits that where there is a factual dispute between the applicant and the respondent's witnesses I should prefer the latter. I note the applicant was not cross-examined and I make no adverse credit finding. Where evidence is contested or inconsistent I intend to give more weight to evidence which finds independent support.[24]
The applicant's evidence in his August 2025 statement is that he agreed to work for the respondent in September or October 2020. There is no evidence the applicant began working for the respondent some time in 2020 as he says in his statement evidence, as the first invoice in evidence from Hydraulic Plumbing Services addressed to the respondent is for work completed in the week ending 13 January 2021.
The applicant's evidence that Mr Lak said he could leave his own company and he would not have to do any paperwork does not appear to be an agreed term as the applicant invoiced the respondent in the name of Hydraulic Plumbing Services until at least early February 2021.
The applicant's evidence that he was told by Mr Lak he would be paid $3,000 as a weekly package no matter how many hours he worked as long as he got the job done is also unsupported by other evidence.
The applicant submits and I accept that the fact earnings of $3,000 per week are not reflected in the documentary records does not in and of itself establish this was not the agreement between the parties.
I have formed the view however based on the documents in evidence that the invoices of Hydraulic Plumbing Services and corresponding payments made by the respondent to H.P.S. Aust Pty Ltd are inconsistent with an agreement that the respondent would make regular weekly payments to the applicant of $3,000.
There is evidence from the NSW Fair Trading website that the respondent registered the applicant as it's licenced plumber and nominated supervisor on 4 February 2021.[25] This is consistent with an agreement reached between the parties, however there is no evidence presented that the applicant was required to be an employee for the purposes of registration.
I am unable to accept the respondent's submission that the applicant fails to explain why Mr Lak would have waited four years until 2020 before having a licensed plumber, as in the absence of evidence from the respondent in this regard any such explanation is likely to be speculative.
The multifactorial test in Stevens v Brodribb applies in particular where the terms and legal obligations flowing from an oral contract cannot be clearly ascertained by reference to particular conversations and the subsequent conduct of the parties.[26]

[62]

In this case the evidence suggests the respondent had a limited right of control over the applicant's work.
I do not accept the applicant's submission that Mr Lak had a degree of control over the applicant's work when balanced with all of the evidence.
The applicant's statement evidence on 17 September 2023 is that he would be running things on the ground, handling subcontracted trades, managing jobs and handling paperwork. In his later statement the applicant says Mr Lak had his schedule and sometimes he would schedule the jobs and notify Mr Lak for the purpose of scheduling and invoicing the jobs. Mr Lak checked in almost daily for updates and the applicant always sent him photos of the jobs he completed.
Mr Lak's evidence is that the applicant worked his own desired hours and created his own invoices in this period. Mr Lak had no control over the amount the applicant invoiced, the hours he worked or when or where he worked. The applicant had complete autonomy managing his own work, his hours of work and those of his employees. Mr Lak had no control over how a job was done, when it was done or whether the applicant did the work himself.
The applicant refers to being added as a signatory to the respondent's bank account in about 2020. This appears to indicate Mr Lak had less control over the applicant's work.
The applicant's 2023 statement evidence is that when they decided to set everything up in December 2020 the applicant always had access to the respondent's bank account and he could see all transactions but he could not make payments. In his 2025 statement the applicant says he was added as a signatory to the respondent's account, given a business debit card and he could view the account statements.
Mr Lak's evidence is that the applicant was provided with the respondent's debit card to be used only to purchase materials required for a job as he never had any money in his HPS company accounts and could not afford to buy materials. The applicant was to advise Mr Lak every time the card was used and send Mr Lak photos of the receipts which he did.
In the circumstances of this case, and having regard to evidence of the personal relationship between the applicant and Mr Lak, it is difficult to determine whether the use of a debit card and the ability to view the respondent's bank statements is more consistent with the applicant being an employee or an independent contractor.
The evidence overall suggests the respondent had limited control over the applicant's work.
Control in many cases remains the surest guide and should be applied in the first instance, but it is not the only relevant factor. It is the totality of the relationship between the parties which must be considered.[31]
The other indicia discussed in Stevens v Brodribb includes the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision of holidays, the deduction of income tax, the ability to delegate work by the putative employee, the employer's right to have a particular person to do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work.[32]
The applicant's evidence is that a weekly package of payment of $3,000 was discussed with Mr Lak in January 2021. Mr Lak's evidence is there was only discussion about payment of $3,000 per week as part of the employment contract signed in May 2022.
The evidence does not support that agreement was reached for payment to the applicant of $3,000 per week from January 2021.
The applicant's statement evidence is that in the beginning he invoiced the respondent in the interim while Mr Lak was setting him up on wages and he stopped providing invoices after a couple of months.
There are four invoices in evidence addressed to the respondent company from Hydraulic Plumbing Services between January 2021 and February 2021. The ABN included on these invoices ends in 491. The payment method is payment into an account bearing the applicant's name, with matching invoice numbers and amounts paid into the account of H.P.S. Aust Pty Ltd. The description of the work is "Plumbing Works Completed" for the relevant weekly period with a single amount invoiced plus GST.
There are no bank statements in evidence for the account in the applicant's name appearing in these four invoices. There are no bank statements in evidence for an account with the name Hydraulic Plumbing Services.
As the respondent submits it is unclear that a company Hydraulic Plumbing Services (Aust) Pty Ltd is the same business entity that invoiced the respondent in 2021. The evidence is that H.P.S. (Aust) Pty Ltd had an ABN ending in 737.
The applicant refers to the cease date of H.P.S.(Aust) Pty Ltd on 25 March 2021 and the cancellation of the ABN on 1 April 2021,[33] and that it was not possible for the respondent to be contracting with that entity on 5 April 2021.
The invoices in evidence addressed to the respondent include a different ABN for Hydraulic Plumbing Services and the bank statements show corresponding payments made into the account H.P.S. Aust Pty Ltd. This does not however establish the applicant was a worker on 5 April 2021.
The bank statements of H.P.S. Aust Pty Ltd show payments received for additional invoice numbers and in varying amounts. Of the 18 separate deposits paid into this account between January 2021 and March 2021 only one is in the amount of $3,000.
As the respondent submits, the applicant's income tax return for the financial year ending 30 June 2021 that shows no income received aside from government allowances and $1 in interest is a further impediment to his claim that he was paid wages.
It is not in dispute that the respondent did not provide pay slips or make taxation or superannuation payments.
The evidence with respect to the mode of remuneration favours a finding that the applicant was working as an independent contractor in this period.
The evidence regarding the provision and maintenance of equipment is also more indicative of a contract for services. The applicant says he preferred to use his own tools and when he needed tools he did not have he used the respondent's debit card to purchase them.
In February 2021 three credits appear in the bank statement of H.P.S. Aust Pty Ltd for a hole saw and machine hire although there is no evidence regarding these credits.
Mr Lak's evidence is also that the applicant provided his own tools and equipment.
In an email on 31 March 2021 the client's comments regarding storage of machinery and equipment on site are directed to the applicant. Mr Lak's later email in 2023 regarding this job includes that the applicant used all his own tools and equipment other than the excavator hired for the duration of that job.[34]
I note Mr Lak signed the email dated 21 January 2021 regarding this job as "Derek Lak JDT Building Pty Ltd"[35] and copying in the applicant. I infer these emails refer to a job the applicant undertook for the respondent company. In his 2023 email Mr Lak says the applicant was issued this job and given full autonomy with no instructions from the respondent on how to perform any activities. Although Mr Roger's evidence is that the applicant subcontracted to JDT Building through HPS plumbing in 2020 and 2021,[36] this inference accords with Mr Lak's evidence that JDT Building stopped using the applicant and HPS completely in November 2020.
The applicant submits the use by the applicant of a debit card to purchase tools when he needed to and having access to the respondent's bank statements is suggestive of the applicant being an employee. I am not persuaded of this in light of the personal relationship between the applicant and Mr Lak and Mr Lak's explanation that the reason the debit card was provided to the applicant was that the applicant never had money in his HPS company accounts to buy materials.
Evidence regarding the obligation to work and the hours of work also support a finding that the applicant was not a worker.
The applicant's statement evidence is that he had no standard hours but there was a base of 40 hours per week and an extra amount would be paid for any overtime or emergency call outs.[37] There is no other evidence of that arrangement and the available invoices of Hydraulic Plumbing Services do not include reference to hours worked or payment of extra amounts.
Mr Lak's evidence is that the applicant worked as a subcontractor for the respondent and Mr Lak had no control over appointment times the applicant made with clients, or when a job was done. The email of 31 March 2021 and Mr Lak's 2023 email regarding the 2021 job indicate the applicant did not have an obligation to work and the respondent did not control the applicant's hours of work.
There is no evidence the applicant was provided with holidays in this period.
Mr Lak's evidence is that the applicant had the ability to delegate work, send employees or subcontractors to jobs, and manage the hours of employees the applicant hired and paid.
With respect to employing workers, the applicant's evidence is that he has never had any employees under him except for Mr Gallen who sometimes worked casually for the respondent.
The four invoices of Hydraulic Plumbing Services do not disclose amounts invoiced for employees, although they only include a single sum for the week's work and it appears there may be further invoices issued that are not in evidence.
Mr Gallen's evidence is he was offered and accepted work from the respondent and his invoices are addressed to Mr Lak. I note however Mr Gallen states he worked for the respondent as a labourer between November 2020 and June 2021 and only four invoices issued in March and April 2021 are annexed to his statement.
The email from Mr Lak dated 15 November 2023 states that on the job in early 2021 the applicant hired and paid his own staff to work with him through his HPS company. Mr Lak says the applicant relied heavily on non-skilled labourers to do the work, including Mr Gallen who was hired directly by HPS on this job, and who were more often than not unsupervised with the applicant on being onsite two hours per day. This meant work was often slow and incorrect, needing to be done again.[38]
The evidence suggests the respondent may not have had the right to have a particular person do the work.
There is no evidence the respondent did not have the right to cease to use the applicant's services during this period.
With respect to whether the respondent had a right to the applicant's exclusive services, there is no direct evidence of an agreement to that effect or that the applicant carried out work for anyone other than the respondent in early 2021.
The applicant's statement evidence is that he did all his work for the respondent's business and he did not work anywhere else. He does not say the respondent had a right to his exclusive services in 2021.
Mr Lak's evidence is that he did not have that right. In his email of 15 November 2023 regarding the job that ran in the three months prior to the applicant's injury in 2021 Mr Lak says:

[64]

The respondent points to the applicant's numbered invoices not including 1133 and there being no evidence of invoices after the four in evidence to 3 February 2021.
I accept, as the respondent submits, that I am unable to be satisfied on the available evidence that the respondent had a right to the applicant's exclusive services.
Regarding the right to dictate the place of work, Mr Lak's evidence is that he would agree on a job with the applicant who would then coordinate everything.
The applicant's evidence is that Mr Lak had his schedule and the applicant would sometimes schedule jobs and notify Mr Lak. It appears the respondent had the right to dictate the place of work for the applicant at least from time to time.
The applicant's evidence is that he was told by the respondent to wear a uniform when he was on the job but there is no further evidence in this regard.
The applicant relies on a conversation with Mr Lak in about February 2021 when he said words to the effect of "I have taken out a workers compensation policy for you. If anything happens to you, you will be covered".[40]
Mr Lak's evidence is that this is 100% untrue as the applicant only wanted to work as a subcontractor under his own company Hydraulic Plumbing Services.
I do not accept that the respondent taking out a workers compensation policy on 4 February 2021 provides evidence that the applicant was a worker at that time.
The applicant submits that regard ought to be had to the email dated 30 June 2021 from Mr Lak that incudes "[w]e have not been working since Leif's injury".[41] I do not accept this provides evidence that the applicant was an employee, although as the applicant submits it does suggest the respondent's business appeared to be wholly reliant on the applicant at the time of his injury.
I agree with the applicant's submission that the employment contract in 2022 has limited relevance to the issues to be determined as it post-dates the injury.
I am satisfied the applicant was not a worker employed by the respondent in early 2021.
Turning to a consideration of whether the applicant was a worker on 5 April 2021, there is no evidence the applicant's relationship with the respondent changed so that he had become a worker by that time.
The applicant's evidence is that he was invoicing Mr Lak in the interim whilst he was setting him up on wages and this stopped after a couple of months (although that timeframe is unclear).
There is no evidence the applicant ceased invoicing for work performed for the respondent prior to 5 April 2021. In the Commonwealth Bank statements produced to 30 April 2021, the last payment shown as received by H.P.S. Aust Pty Ltd for "Leif HPS Inv 1147" is on 19 March 2021[42] however the applicant's business and financial records appear to be incomplete, for example the personal account nominated in the four invoices into which payments were to be made do not appear to be in evidence.
I accept the respondent's submission that the deregistration of H.P.S. (Aust) Pty Ltd on 25 March 2021[43] may do no more than show the applicant changed the way in which he operated the Hydraulic Plumbing Services business.
The applicant's 2023 statement evidence is that he did not have a contract signed with the respondent at the time of the accident as it had not been drafted yet.
In the following four days after the 2021 Easter long weekend the applicant's statement evidence is that he and Mr Lak were supposed to be working in the office together handling all the websites and other paperwork for the business. The applicant says he was also supposed to start on wages during that period.
The respondent's registration of the applicant as it's licenced plumber and nominated supervisor on 4 February 2021 and the applicant's deregistration of H.P.S. (Aust) Pty Ltd on 25 March 2021 might support the applicant's evidence that he was to start as an employee after Easter, however no evidence is given by either the applicant or Mr Lak in this regard and the evdience is that he was not a worker on 5 April 2021.
The respondent refers to records made by the Sydney Eye Hospital, which include on 14 April 2021 that a work accident occurred on Easter Monday and on 28 May 2021 that the accident was not work related and is not covered by WorkCover. I note the record made by Blacktown Hospital was that the applicant presented with a workplace injury on 5 April 2021. I do not place great weight on clinical records for the reasons referred to by the applicant in submissions and the reasoning in Mason v Demasi.[44]
In Malivanek[45] Roche DP referred to the indicia set out in Stevens v Brodribb and the following observation of McColl JA in Langford; the distinction between an employee and an independent contractor is said to be "rooted fundamentally in the difference between a person who serves his employer in his, the employer's business, and a person who carries on a trade or business of his own."[46]
The available evidence supports a finding that the applicant was an independent contractor at the time of the accident on 5 April 2021. He was performing the work of an entrepreneur who owned and operated his own business in this period, and in performing that work he was working in and for his business as a representative of that business and not the respondent's business.
As I find the applicant was an independent contractor on 5 April 2021 the injury that day did not occur in the course of employment.
Based on the totality of the available evidence, and a consideration of contractual terms, the subsequent conduct of the parties and the application of the multifactorial test, I am satisfied on the balance of probabilities the applicant was not a worker in accordance with s 4 of the 1998 Act on 5 April 2021.

[67]

The evidence does not support a finding that the applicant was a deemed worker in 2021, although as the applicant submits it is uncontroversial that the applicant had contractual relations with the respondent.
It is uncontentious the value of the work performed by the applicant exceeded $10, however the invoices addressed to the respondent in early 2021 were issued in the name of his business Hydraulic Plumbing Services.
The evidence establishes the work performed by the applicant for the respondent in early 2021 was work that was incidental to the plumbing trade regularly carried out by him under the name of Hydraulic Plumbing Services or H.P.S. Aust Pty Ltd. Mr Rogers' evidence supports this.
The evidence regarding whether the applicant employed any worker is discussed above.
The applicant's statement evidence is that he never had any employees, although Mr Gallen sometimes worked for the respondent as a casual.
Mr Lak's evidence is that he asked the applicant to send Mr Gallen home on 5 April 2021 as it was never agreed he would be paid. The applicant admitted, Mr Lak says, that he wanted Mr Gallen there to dig the required hole and he said there would be no charge for Mr Gallen being there, although Mr Gallen addressed an invoice to Mr Lak for work carried out that day.
Mr Lak's evidence is that after he started hiring the applicant as a subcontractor in 2021 the applicant hired employees under Hydraulic Plumbing Services to help him perform the work.
In his email of 15 November 2023 referring to the job from January to March 2021, Mr Lak says the applicant hired and paid his own staff through HPS.
I accept the evidence of Mr Lak that suggests the applicant employed workers in this period.
On the basis of the available evidence I find on the balance of probabilities the applicant was not a deemed worker under cl 2 of Schedule1 of the 1998 Act on 5 April 2021.
The applicant submits in the alternative the applicant was a worker temporarily lent or let on hire to the respondent in accordance with cl 1 Schedule 1 of the 1998 Act. I do not accept that submission in the absence of any evidence to that effect.

Therikildsen v Deemann Pty Ltd [2026] NSWPIC 138;

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Therikildsen v Deemann Pty Ltd [2026] NSWPIC 138; (3 March 2026)