(a) The appellant was asked to arrive early so they "could discuss the job and what work [the respondent] wanted [the appellant] to do."[281]

(b) He would be "doing the work to Active Pools and Spas Pty's direction and specifications, and that is exactly what happened. [The appellant] really had no say in what work [he] was going to do and how it was to be performed."[282]

(c) He arrived at the work site at around 8.30 am.[283]

(d) The spray commenced at around 9.30 am and was not completed until "between 3.30 pm to 5.00 pm".[284]

1. The Member found at [53] that the appellant himself had to work:

(a) as directed;

(b) at the particular site, and

(c) at the particular time for the concrete pour.

1. This is consistent with the finding by the Member that the appellant expected payment for the performance of his work, at [16] of the reasons. He would not be paid if he did not perform the work asked of him.
2. However, the Member's finding at [46] is not consistent with his finding at [53].
3. On the facts, the Member should have found that it was a term of the contract that the appellant was personally obliged to perform work as, when, in the manner and for the time directed by the respondent. His failure to so find constituted an error of fact.

1. I discuss this above at [70]-[73]. The Member does not explain how or why the absence of any separate provision for leave, the confirmation of the job a week beforehand and the request for the appellant to arrive early to discuss the job is "consistent with a contractor and principal relationship and weighs against the [appellant] being a worker employed under a contract of service" as found at [47]. This finding is an error of fact.
2. The Member also failed to relate these matters to the contract.
3. The appellant contended that the facts supported a finding of a contract of casual employment. The Member has not considered these matters in that context, which is a further error to consider an important part of the appellant's case.

1. As discussed above at [75]-[82], the authorities have not consistently regarded the failure to deduct income tax as determinative, or even necessarily indicative, of the existence of a principal and contractor relationship.[285]
2. At [36], [37] and [38] the Member finds that the appellant's use of the term "cash in hand" means there was no deduction of income tax. This may be a commonsense approach, but while the evidence is that the appellant was paid in cash on the day, there is no evidence about its tax treatment one way or another. The respondent refers to its Xero accounting system, but produced no records and provides no explanation for this failure.
3. There being no actual evidence about how this transaction was treated, the finding at [48] and [49] was in my view not open to the Member and was made in error.
4. If it was the case that no taxation was deducted, there is no information before the Member as to whether such a deduction for a one-off payment was required in the circumstances. There is also no evidence whether the failure to deduct any applicable tax was by agreement or at the instigation of one party or the other.
5. The Member further erred by not relating this issue to the contractual relationship between the parties.

1. I agree this is a neutral factor and applies whether the appellant was a worker or an independent contractor.

The right to the exclusive services of the person engaged

1. This is a matter which relates to the contractual relationship between the parties.
2. The Member accepts at [54] that for the duration of the contract, there was an expectation the respondent had an exclusive right to the appellant's services. This is because the evidence is that the appellant had to perform the work personally and there was no question of his being able to delegate the work to any other person: see [310], [320]-[322], [325] and [328] above.
3. The fact the appellant "had an ABN and was working as a sole trader, predominantly for another company" does not assist in determining the terms of the contract between the appellant and the respondent or the nature of that relationship. The finding of the Member at [60] that "[t]his is the contextual basis for the relationship between the [appellant] and the respondent ... and the basis upon which the indicia need to be evaluated" discloses that the Member has erred by finding that because the appellant does conduct some business of his own for another party, that relationship must be of the same kind as the one between the appellant and the respondent. Such a conclusion is wrong, because the question before the Member concerned the terms and hence the nature of the particular contract between the parties, not the nature of another relationship for work which the appellant has with another party.
4. For these reasons, the finding of the Member at [55] is also an error of fact.

1. For the above reasons, the conclusions reached by the Member at [57] of his reasons were errors of fact which materially resulted in his reaching his decision.

1. The lay evidence of the parties which bears on the question to be determined on appeal is summarised above at paragraphs [19]-[24]. As neither witness was cross-examined, there is no issue of credit or demeanour and the Member at first instance has no advantage in relation to assessing that evidence. At the appeal hearing on 15 December 2025, both parties agreed that I was in the same position as the Member to assess and determine the facts.[286]
2. I find that I can accept the evidence of each witness unless it is contradicted by other evidence or is in my view made unlikely or less likely than the alternative by other evidence before the Commission. Where the evidence is in conflict on a matter, I have to determine which evidence I prefer. In undertaking these evaluative tasks, I apply the approach articulated at [190]-[193] above regarding the civil standard of proof. In relation to my findings of fact below, I am satisfied that the evidence available was sufficient to establish that these facts exist.
3. In relation to three of the matters in dispute, set out at [24] above, the Member made no findings on these matters and, in my view, should have done so. This is because:

(a) With one exception, they are important issues in contest between the parties which directly bear upon the question it fell to the Commission to decide: whether the appellant was a worker within the meaning of s 4 of the 1998 Act. Accordingly, it was necessary for the Member to decide these matters, to the extent permitted by the available evidence.

(b) There was sufficient evidence before the Commission to enable it to decide these matters of fact.

(c) The evidence establishes the findings I have reached on these facts, to the required degree of satisfaction.

1. I am fortified in this approach by the fact that the respondent chose not to apply to cross-examine the appellant on this evidence. Further, it is apparent from the Member's reasons and also the submissions for the respondent that the evidence of the appellant was accepted by the Member.
2. The failure of the Member to make the findings below constitute errors of fact within the meaning of s 352(5) of the 1998 Act.
3. In relation to the disputed matters, I make the following findings:

(a) Whether the appellant was engaged by Mr Long, an employee of the respondent, or was brought to the work site "by another trade".

The appellant provides a clear and coherent first-hand account of who offered him the work and the circumstances in which the contract was formed. The Respondent did not seek leave to cross-examine him. There is nothing inconsistent or implausible about his account. The details provided (the name of the person who offered the work and engaged the appellant, his history with the appellant and why the appellant was offered the work, the claim Mr Long was an employee of the respondent) are each able to be verified or challenged by the respondent.

The evidence of the respondent is not clear on how it says the contract was formed and who it was represented by in that process of engaging the appellant. The "other trade" said to have brought the appellant to perform the work is not identified and no first-hand account of the formation of the contract is provided by or on behalf of the respondent.

In the absence of any reason to doubt the account of the appellant, I prefer and accept the first-hand account of the appellant that he was engaged on behalf of the respondent by its employee Mr Long.

(b) Whether the appellant worked four hours or eight and a half hours.

The evidence of the respondent was that the appellant worked for four hours.[287]

The appellant's evidence was that he was on site from 8.30 am until completion of the work between 3.30 and 5.00 pm. This would be up to 8.5 hours' work.[288]

There is no objective evidence on this matter. The accounting records of the respondent, which Mr Cutugno says records the appellant working for four hours 10.30-2.30 pm,[289] were not before the Commission.

Having regard to the matters discussed above at [56]-[57] of these reasons, the evidence of the appellant is closer to what the Member found at [38] of his reasons was a "unit price ... more consistent with the rate payable to an employed labourer" than is the evidence of the respondent.

While Mr Cutugno's evidence was that the appellant worked for 4 hours, he also gave evidence describing the engagement of the appellant as "This was a one day shift."[290] It was submitted before the Member that the use of this terminology was "significant"[291] and one given to a "worker" and not to a contractor.[292]

I find that in the circumstances, it is more likely that the amount paid to the appellant was for a longer rather than a shorter work period. I accept the evidence of the appellant on this matter.

(c) Whether the appellant claimed to the respondent he had his own workers' compensation or injury insurance.

This claim by the respondent is denied by the appellant.[293]

While using the terms "us" and "we" (presumably to refer to the respondent entity), Mr Cutugno does not give evidence that this was said to him or in his hearing but that it was said to "2 staff members [who] can back this up".[294] The staff members are not named or otherwise identified and do not give evidence.

In circumstances where the appellant gives direct evidence and there is no direct evidence to contradict it, I prefer and accept the evidence of the appellant.

1. In relation to the remaining two disputed matters, I find:

(a) Whether the appellant was paid $600.00 or $650.00 for the work he performed is not an issue that requires determination and has no bearing on either case, because the parties agreed the amount of PIAWE was $1,211.84 per week.

(b) In relation to whether the payment in cash was at the instigation of the appellant or respondent:

The appellant states that he accepted the offer made to him of a day's "job for a cash payment as a skilled labourer"[295] and that Mr Long had told him he would be paid in cash for the work.[296] On the appellant's evidence, the cash offer was made by the respondent by its employee Mr Long.

The respondent does not bring evidence from Mr Long, or any other person, to contradict this. Mr Cutugno states the appellant asked for payment in cash on the day,[297] then stated the appellant had "demanded cash on the day".[298] No details of these requests by the appellant are provided, nor is it indicated who the appellant made these requests of. If the requests were made to Mr Cutugno it is to be supposed that he would say this clearly. He does not. The implication is that, as with the insurance issue, it is claimed that the appellant said this to someone but that person is not identified and does not give a first-hand account of the matter.

Given the choice between the clear and direct evidence of the appellant and the unclear and imprecise evidence of Mr Cutugno, I prefer the evidence of the appellant.

1. Resolution of these issues confirms in my mind the reliability of the evidence of the appellant and that it should be accepted. The evidence of Mr Cutugno does not assist the Commission.
2. Having regard to the evidence which was before the Member at first instance and summarised at [20], [22] and [23] above, I find the following facts:

(a) Since September 2022, the appellant held an Australian Business Number (ABN). From about February 2023 he commenced working for himself "as a sole trader" under the business name JT Pools and Landscapes.[299]

(b) Since this time, "the majority if not all the work" he performed in his sole trading business was contract work for Coffs Coast Design Pools, owned by Darren Wilson.[300]

(c) The work, cutting and shaping pools, is similar to the work he performed as an employee at Williams Designer Pools for ten years.[301]

(d) The appellant advertised his services "to other employers via the Coffs Coast designer pools website".[302] (emphasis added)

(e) Coffs Coast Design Pools is the business the appellant was working with "... as a subcontractor."[303] I omit the qualification in the evidence "primarily" as there is no evidence that the appellant performed any other kind of work with or for Coffs Coast Designer Pools.

Findings the Member should have made but did not, disclosing errors of fact which were material

In reaching these views on the evidence, I have adopted the onus on the civil standard, addressed above, and the approach adopted by Gordon J in Personnel Contracting at [178], also addressed above.

(f) Other than the one day's work for the respondent on 18 January 2024, there is no evidence the appellant performed work in his sole trading business for any other person or entity, apart from Coffs Coast Designer Pools and Darren Wilson.

(g) The work performed by the appellant on 18 January 2024 did not come from Coffs Coast Designer Pools and Mr Wilson or "via the Coffs Coast designer pools website".

(h) The appellant came by the work via Mr Long, a person the appellant had worked with during his employment with Williams Designer Pools. Mr Long knew the appellant had experience cutting and shaping pools.[304]

(i) Mr Long was an employee of the respondent[305] and acted as the agent for the respondent in offering the work contract to the appellant.

(j) The offer made to the appellant by Mr Long was a "job for a cash payment as skilled labourer".[306]

(k) The appellant performed the work as directed by Mr Cutugno. Through Mr Cutugno, the respondent under the contract had the right to exercise close and continuing supervision of the appellant's work and how, when and in what way it was performed. The appellant had no autonomy in this respect. As the contract was oral, it is permissible to have regard to the parties' conduct in performance of the contract in order to determine its terms. It was a term of this contract that the respondent had the right to control the performance of the work of the appellant.

(l) In order to be paid for the work, the appellant was required by the contract to attend the particular site and to personally perform the work for as long as the respondent specified. These requirements were either terms of the contract or effects of the term of the contract providing the respondent with the right to control the work of the appellant.

(m) Under the contract, the respondent had the right to the exclusive services of the appellant for the duration of the contract. During the term of the contract, the appellant provided his services exclusively to the respondent. I find the right to the exclusive services of the appellant was a term of the contract.

(n) While the appellant brought some tools to the work site, he used the equipment provided by the respondent and set out in the appellant's statement of 20 February 2025 at [57].

(o) The engagement was for the day only and there was no firm commitment of ongoing work, which is indicative of the existence of a contract of casual employment: see Personnel Contracting at [84].

(p) Further to [340] above, the finding made at [61] of the reasons that "the [appellant] is working in a business of his own and has been since February 2023, rather than solely serving the respondent in its business" was an error of fact made by conflating two matters in his reasons [59]-[60]: (i) whether the appellant conducted a sole trading business and (ii) whether the work for the respondent was in furtherance of that business or was separate from it. Before the Member at first instance, the appellant had correctly submitted that there was no conflict between the appellant conducting his own business and entering a separate, one-off casual employment contract with the respondent for a day.[307] The Member did not deal with the issue of whether the contract was one of casual employment and at [61] has approached the issue of whether the contract between the parties was one of employment by reference to whether it was one for permanent or ongoing employment. This discloses further error.

(q) The terms of the contract disclose that the appellant was, on and for 18 January 2024, contracted to work in the business of the respondent.

1. I note that in the ALAD filed by the respondent on 13 May 2025 there were hand-written invoices issued by the appellant from 10 February 2023 until 15 June 2023 for the supply of labour and other matters to Coffs Designer Pools.[308] There is no amount for the Goods and Services Tax itemised on those documents.
2. Before the Member were also bank records of the appellant from 6 March 2023 to 5 June 2023, which refer to nine Fast Transfer payments to the appellant from Darren J Wilson, on 9, 15, 17 and 23 March, 6, 13, 19 and 28 April and 4 May 2023. All but the 9 March transaction are said to be to "Pay Invoice". Subsequent payments made on 11, 16 and 23 May and 1 June 2023 are for "wages" or "Jordan wages". These all predate the injury sustained by the appellant on 18 January 2024 and any financial support afforded him by Mr Wilson and his business. It may be suggestive that the appellant was or became an employee of Coffs Designer Pools, but that issue is not before the Commission.
3. Further to [340] and [351] (p) above, the Member, in his statement of reasons noted "[the appellant] gives evidence that he had an ABN and was working as a sole trader, predominantly for another company."[309] With his other work history, the Member found "[t]his is the contextual basis for the relationship between the respondent ... and the basis upon which the indicia need to be evaluated."[310]
4. This was foundational for the Member's conclusion that:

"... the [appellant] is holding himself out, operating a business as a sole trader, as an experienced pool cutter and shaper. ... the [appellant] is working in a business of his own, and has been since February 2023, rather than solely serving the respondent in its business. It is in this context that I find the [appellant] has not discharged his onus in establishing he was a worker."[311]

1. The question for resolution here is not whether the appellant was in any general sense operating his own business, but whether he was doing so in relation to the particular contract with the respondent which is the subject of the claim for statutory benefits under the workers compensation acts.
2. There is no doubt that the appellant performed contract work for Coffs Designer Pools. The evidence is that the appellant, styled as JT Landscapes and Pools, performed work for Coffs Designer Pools and for no one else. As a result, this does not assist in answering the question about the nature and content of the contract entered by the appellant with the respondent.
3. The evidence discloses:

(a) "most if not all" the work of the appellant, styled as JT Landscapes and Pools, came from the business of Mr Wilson, being Coffs Designer Pools;

(b) the work did not come to the appellant via the Coffs Coast Designer Pool website, nor by word of mouth from other clients of his business, or from any advertising on his part;

(c) in the present case, the work came from a different source: from the respondent, brokered by the appellant's former work colleague Mr Long, the employee of the respondent;

(d) the appellant was not asked to and did not provide any invoice regarding the work;

(e) in contrast, the appellant did issue invoices for his work for Coffs Designer Pools;

(f) a further contrast is that here he was paid in cash, and

(g) in his work for Coffs Designer Pools he was paid by bank transfer.

1. There are sufficient points of difference between the work performed by the appellant for Coffs Designer Pools and Mr Wilson and the work he was engaged to perform by and for the respondent for me to find that the two were separate.
2. This confirms my view that, pursuant to the terms of the contract which are disclosed by the evidence and set out at [351] (j)-(m), (o) and (q) above, on and for 18 January 2024 the appellant was contracted to work in the business of the respondent.
3. The correct legal principles to determine whether a contract is one of service or a contact for services, set out in Personnel Contracting and Jamsek, are summarised above. The application of these principles to the correct facts of the matter would, in my view, have led the Commission to determine that the appellant was employed by the respondent under a contract of casual employment for a single day. Accordingly, I find that the appellant did discharge his onus and that the evidence establishes that when performing work for the respondent on 18 January 2024 he was a 'worker' within the meaning of s 4 of the 1998 Act. Because of this conclusion, I do not need to deal with the appellant's Dranichnikov submission.
4. The failure by the Member to find that the contract between the parties was a contract of casual employment constitutes errors of fact and law, or a mixed question of fact and law, which should be corrected.
5. The respondent's written submissions at [9.29]-[9.34] and summarised at [138] above, although made in the context of Ground A, were, in their terms, generally applicable in this appeal. They were that the reasons of the Member were "direct, sufficiently address ... findings on material questions of fact, the applicable law and the reasoning process followed". This submission cannot be wholly accepted, given the findings I have reached in this appeal and the reasons for them.
6. I find that the identified errors of fact and law were material in that, had they not been made, there would have been a different decision by the Member.
7. I uphold Ground C.

1. The issue was not argued by the appellant at first instance. It was drawn to the parties' attention at a directions hearing held on 19 November 2025 and the parties have addressed the Commission on appeal, both in writing and in oral submissions heard before me on 15 December 2025.
2. The appellant contended that the deemed worker provisions found in cl 2(1)(a) of Sch 1 to the 1998 Act have no application to the present matter.
3. The parties agreed during the hearing on 15 December 2025 that, as the issue was not raised at first instance, it cannot now be raised in the appeal proceeding as parties are bound by the way in which they have conducted their case.
4. Accordingly, I do not need to deal with this matter.

1. For the reasons given above, I find that when performing work for the respondent on 18 January 2024 the appellant was a worker within the meaning of s 4 of the 1998 Act.
2. The Member at [5] of his reasons noted that "it was agreed, that if the [appellant] succeeded on the issue of worker, he would be entitled to an award for weekly compensation and medical expenses as claimed in the application with the claim for lump sum compensation to be ultimately referred to a Medical Assessor." At the appeal hearing the parties indicated that if the appellant succeeded in this application, orders reflecting this would need to be made to give effect to the outcome, including the terms of any referral to a Medical Assessor.[312] While it has been the practice in the Commission that if an appeal is upheld, it is preferable, if possible, that the Presidential member finally determine the matter[313] the decision whether or not to remit the matter to a non-Presidential member of the Commission is "a matter within the reasonable discretion of the Presidential member, having regard to the overriding objectives of the legislation in providing a fair, cost-effective and timely means of resolving workers compensation claims. The legislative [provision] can be construed as a legislative recognition that in certain cases, it will be more efficient and cost-effective for [a Member] to redetermine issues and make appropriate calculations."[314] I find that it is appropriate in the present case that the relevant aspects of the Certificate of Determination be revoked and the matters noted by the Member at [5] of his reasons be dealt with in a new Certificate of Determination made by the Member.

1. The appellant has discharged his onus and was a worker within the meaning of s 4 of the 1998 Act, employed by the respondent under a casual contract of service, at the time of his injuries on 18 January 2024.
2. Pursuant to s 352(6A) of the 1998 Act, finding [1] and order [3] of the Member's Certificate of Determination dated 3 June 2025 are revoked.
3. Pursuant to s 352(7) of the 1998 Act, the matter is remitted to the Member for determination in accordance with this decision.

[1] Statement of Mr Tsakiris, 20 February 2025, Application to Resolve a Dispute (ARD), p 1, [13].

[2] Statement of Mr Andrew Cutugno, 1 April 2025, Application to Lodge Additional Documents (ALAD) 1 April 2025, p 1; ALAD 13 May 2025, p 4.

[6] ARD, p 7; see also the schedule of past out of pocket expenses as at 21 February 2025, at ARD, p 437.

[8] Transcript of proceedings before the Member 19 May 2025 (T1), T1 1.41-2.09.

[9] Statement of Mr Tsakiris, 20 February 2025, [8].

[10] Statement of Mr Tsakiris, 20 February 2025, [9].

[11] Statement of Mr Tsakiris, 20 February 2025, [10]-[11].

[12] Statement of Mr Tsakiris, 20 February 2025, [13].

[13] Statement of Mr Tsakiris, 20 February 2025, [14].

[14] Statement of Mr Tsakiris, 20 February 2025, [22].

[15] Statement of Mr Tsakiris, 20 February 2025, [13], [18].

[16] Statement of Mr Tsakiris, 20 February 2025, [15].

[17] Statement of Mr Tsakiris, 20 February 2025, [18].

[18] Statement of Mr Tsakiris, 20 February 2025, [18].

[19] Statement of Mr Tsakiris, 20 February 2025, [19].

[20] Statement of Mr Tsakiris, 20 February 2025, [19].

[21] Statement of Mr Tsakiris, 20 February 2025, [21].

[22] Statement of Mr Tsakiris, 20 February 2025, [56].

[23] Statement of Mr Tsakiris, 20 February 2025, [24].

[24] Statement of Mr Tsakiris, 20 February 2025, [23].

[25] Statement of Mr Tsakiris, 20 February 2025, [57].

[26] Statement of Mr Tsakiris, 20 February 2025, [25].

[27] Statement of Mr Tsakiris, 20 February 2025, [27].

[28] Statement of Mr Tsakiris, 20 February 2025, [30].

[29] Statement of Mr Cutugno, 1 April 2025, pp 1, 5.

[30] Statement of Mr Cutugno, 1 April 2025, pp 4-5.

[31] Statement of Mr Cutugno, 1 April 2025, p 1.

[32] Statement of Mr Cutugno, 1 April 2025, p 1.

[33] Statement of Mr Cutugno, 1 April 2025, p 5.

[34] Statement of Mr Cutugno, 1 April 2025, p 5.

[35] Statement of Mr Cutugno, 1 April 2025, p 5.

[36] Statement of Mr Cutugno, 1 April 2025, p 5.

[37] Statement of Mr Cutugno, 1 April 2025, pp 1, 3.

[38] Statement of Mr Cutugno, 1 April 2025, p 4.

[39] Statement of Mr Cutugno, 1 April 2025, p 5.

[40] Statement of Mr Cutugno, 1 April 2025, p 5.

[41] Statement of Mr Cutugno, 1 April 2025, p 5.

[42] Statement of Mr Cutugno, 1 April 2025, pp 4, 5.

[43] Statement of Mr Cutugno, 1 April 2025, p 5.

[44] Statement of Mr Cutugno, 1 April 2025, p 5.

[45] Statement of Mr Cutugno, 1 April 2025, pp 4, 5.

[46] Statement of Mr Cutugno, 1 April 2025, p 4.

[47] Statement of Mr Cutugno, 1 April 2025, pp 4, 5.

[48] Statement of Mr Cutugno, 1 April 2025, p 3.

[49] Supplementary statement of Mr Tsakiris, 13 May 2025, [2], [3].

[50] Supplementary statement of Mr Tsakiris, 13 May 2025, [2].

[51] Supplementary statement of Mr Tsakiris, 13 May 2025, [2].

[52] Supplementary statement of Mr Tsakiris, 13 May 2025, [2].

[53] Supplementary statement of Mr Tsakiris, 13 May 2025, [4].

[54] Supplementary statement of Mr Tsakiris, 13 May 2025, [5].

[55] Supplementary statement of Mr Tsakiris, 13 May 2025, [6].

[56] Supplementary statement of Mr Tsakiris, 13 May 2025, [6].

[57] Supplementary statement of Mr Tsakiris, 13 May 2025, [7]. This is consistent with his first statement of 20 February 2025, [18].

[58] Statement of Mr Tsakiris, 20 February 2025, [32]-[41].

[59] Statement of Mr Tsakiris, 20 February 2025, [42], [46].

[60] Statement of Mr Tsakiris, 20 February 2025, [42], [48].

[61] Statement of Mr Tsakiris, 20 February 2025, [50]-[51].

[62] Statement of Mr Tsakiris, 20 February 2025, [41].

[63] Statement of Mr Tsakiris, 20 February 2025, [44].

[64] Statement of Mr Tsakiris, 20 February 2025, [45]-[47].

[65] Statement of Mr Tsakiris, 20 February 2025, [65].

[66] Tsakiris v Active Pools and Spas Pty Ltd [2025] NSWPIC 243 (reasons).

[68] Statement of Mr Cutugno, 1 April 2025, p 4.

[70] Statement of Mr Cutugno, 1 April 2025, p 5.

[75] [1986] HCA 1; 160 CLR 16 (Stevens).

[78] [2011] FCA 366; 214 FCR 82, [208].

[79] [2022] HCA 1; 275 CLR 165 (Personnel Contracting).

[80] [2022] HCA 2; 275 CLR 254 (Jamsek).

[83] The invoices referred to by the Member are found in the respondent's ALAD filed 13 May 2025, at pp 6-19 inclusive.

[86] Statement of Mr Tsakiris, 20 February 2025, [57].

[88] Statement of Mr Cutugno, 1 April 2025, p 5.

[89] Statement of Mr Tsakiris, 20 February 2025, [21].

[90] Statement of Mr Tsakiris, 20 February 2025, ARD, [56].

[91] Statement of Mr Tsakiris, 20 February 2025, ARD, [25].

[92] Statement of Mr Tsakiris, 20 February 2025, ARD, [27].

[98] [1959] HCA 8; 101 CLR 298 (Jones v Dunkel).

[99] Ian Neill SC, David Chin SC (as his Honour then was) and Christopher Parkin, Third Edition, LawBook Co. 2023, p 33, [1.066].

[100] [2005] NSWCA 96; 147 IR 240.

[101] Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 (Hollis).

[103] Statement of Mr Cutugno, 1 April 2025, p 5.

[105] [2025] NSWCA 157 (Culhana).

[106] Appellant's submissions, 1 July 2025, [17].

[107] Appellant's submissions, 1 July 2025, [18].

[108] Appellant's submissions, 1 July 2025, [4]-[6].

[109] Appellant's submissions, 1 July 2025, [3].

[110] Appellant's submissions, 1 July 2025, [7].

[111] Appellant's submissions, 1 July 2025, [9].

[112] Appellant's submissions, 1 July 2025, [4].

[113] Statement of Mr Tsakiris, 20 February 2025, [13].

[114] Appellant's submissions, 1 July 2025, [4].

[115] Statement of Mr Cutugno, 1 April 2025, p 1.

[116] Appellant's submissions, 1 July 2025, [4].

[117] Appellant's submissions, 1 July 2025, [7].

[118] Appellant's submissions, 1 July 2025, [10].

[119] Appellant's submissions, 1 July 2025, [11].

[120] Appellant's submissions, 1 July 2025, [11].

[121] Appellant's submissions, 1 July 2025, [12].

[122] Appellant's submissions, 1 July 2025, [13].

[123] Appellant's submissions, 1 July 2025, [14].

[124] Appellant's submissions, 1 July 2025, [15].

[125] Appellant's submissions, 1 July 2025, [16].

[126] Appellant's submissions, 1 July 2025, [17], [27]-[30].

[127] Appellant's submissions, 1 July 2025, [17], [21]-[24], [25], [30].

[128] Appellant's submissions, 1 July 2025, [18]-[19].

[129] Appellant's submissions, 1 July 2025, [20].

[130] Appellant's submissions, 1 July 2025, [21]-[24].

[131] Appellant's submissions, 1 July 2025, [26].

[132] Appellant's submissions, 1 July 2025, [31].

[133] Appellant's submissions, 1 July 2025, [32].

[134] [2003] HCA 26; 77 ALJR 1088; 197 ALR 389 (Dranichnikov).

[135] Respondent's submissions, 6 August 2025, [9.4], [9.11], [9.42(a)]; [9.49]; respondent's supplementary submissions, 2 October 2025, [19], [21]-[22].

[136] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; respondent's submissions, 6 August 2025, [9.5], [9.9], [9.23].

[137] Respondent's submissions, 6 August 2025, [9.5], [9.9], [9.36]-[9.41].

[138] Respondent's submissions, 6 August 2025, [9.12], [9.13], [9.23], [9.26], [9.29], [9.39]; s 43 of the Personal Injury Commission Act 2020.

[139] Respondent's submissions, 6 August 2025, [9.12].

[140] Respondent's submissions, 6 August 2025, [9.8], [9.19], [9.23]-[9.29], [9.65], [9.66].

[141] Respondent's submissions, 6 August 2025, [9.19].

[142] Respondent's submissions, 6 August 2025, [9.21].

[143] Respondent's submissions, 6 August 2025, [9.14].

[144] Respondent's submissions, 6 August 2025, [9.15].

[145] [2011] NSWCA 330 (Winter).

[146] Respondent's submissions, 6 August 2025, [9.15]-[9.18].

[147] [2025] NSWPICPD 31, [77].

[148] [2024] NSWCA 32; 114 NSWLR 1, [139] per Kirk JA.

[149] [2013] FCAFC 184; 236 FCR 593, [46]-[47].

[150] Respondent's submissions, 6 August 2025, [9.30]-[9.34].

[151] Respondent's submissions, 6 August 2025, [9.10], [9.11], [9.36]-[9.41].

[152] Respondent's submissions, 6 August 2025, [9.50]-[9.55].

[153] Respondent's submissions, 6 August 2025, [9.53].

[154] [2019] NSWCA 263.

[155] Paterson v State of New South Wales (NSW Police Force) [2025] NSWPICPD 6, [69].

[156] Respondent's submissions, 6 August 2025, [9.56]-[9.57].

[157] Respondent's submissions, 6 August 2025, [9.52].

[158] Respondent's submissions, 6 August 2025, [9.60].

[159] Respondent's submissions, 6 August 2025, [9.61]-[9.62].

[160] Respondent's submissions, 6 August 2025, [9.63]-[9.64], citing Secretary, Attorney General's Department v O'Dwyer [2022] FCA 1183, [28]-[33].

[161] Respondent's submissions, 6 August 2025, [9.66].

[162] Respondent's submissions, 6 August 2025, [9.67].

[163] Respondent's submissions, 6 August 2025, [9.75], [10.1].

[164] Respondent's submissions, 6 August 2025, [10.2].

[165] Appellant's submissions in reply, 26 September 2025, [2].

[166] Appellant's submissions in reply, 26 September 2025, [4].

[167] Appellant's submissions in reply, 26 September 2025, [7].

[168] Appellant's submissions in reply, 26 September 2025, [8]-[10].

[169] Appellant's submissions in reply, 26 September 2025, [11]-[13].

[170] Appellant's submissions in reply, 26 September 2025, [14].

[171] Appellant's submissions in reply, 26 September 2025, [17]-[24].

[172] Appellant's submissions in reply, 26 September 2025, [25]-[28].

[173] Appellant's submissions in reply, 26 September 2025, [27]-[28].

[174] [2011] NSWWCCPD 25 (Raulston).

[175] Respondent's supplementary submissions, 2 October 2025, [5].

[176] Respondent's supplementary submissions, 2 October 2025, [6].

[177] Respondent's supplementary submissions, 2 October 2025, [7].

[178] Citing Nominal Defendant v Rooskov [2012] NSWCA 43 (Rooskov).

[179] Citing Jagatramka v Wollongong Coal Limited [2021] NSWCA 61 (Jagatramka), [49]; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 (Kuhl), [64].

[180] Respondent's supplementary submissions, 2 October 2025, [11]-[12].

[181] Respondent's supplementary submissions, 2 October 2025, [10].

[182] Respondent's supplementary submissions, 2 October 2025, [13].

[183] Respondent's supplementary submissions, 2 October 2025, [14].

[184] Appellant's further submissions, 28 November 2025, [9].

[185] Appellant's further submissions, 28 November 2025, [6].

[187] Respondent's further written submissions, 5 December 2025, [2].

[188] Respondent's further written submissions, 5 December 2025, [3]; reasons, [16].

[189] Respondent's further written submissions, 5 December 2025, [4]; reasons, [19].

[190] Respondent's further written submissions, 5 December 2025, [6].

[191] Respondent's further written submissions, 5 December 2025, [7].

[192] [2023] NSWPICPD 11 (UPVC), from [98] onwards, particularly [128].

[193] Respondent's further written submissions, 5 December 2025, [8]-[9].

[194] [2023] NSWPICPD 13 (Askew), [85]-[87].

[195] Respondent's further written submissions, 5 December 2025, [10].

[196] [2024] NSWPICPD 21 (Nilon), [112]-[115].

[197] Respondent's further written submissions, 5 December 2025, [11].

[198] [2025] NSWPICPD 63 (Qoreishi), [36]-[40].

[199] Respondent's further written submissions, 5 December 2025, [12].

[200] Respondent's further written submissions, 5 December 2025, [14].

[201] Respondent's further written submissions, 5 December 2025, [14].

[202] [2023] FCAFC 49.

[203] [2008] NSWCA 223.

[204] [2006] NSWCA 282.

[205] [2010] NSWCA 287; 57 MVR 9.

[206] [2002] HCA 22; 209 CLR 478.

[207] [2008] NSWCA 197; 4 DDCR 561.

[208] [2000] HCA 40; (2000) 203 CLR 172.

[209] [2002] NSWWCCPD 6.

[210] [2002] NSWCA 247.

[211] [1999] NSWCA 311.

[212] [2013] NSWCA 255; 12 DDCR 95 (Heggie).

[214] [2025] NSWCA 229, [74]-[77].

[215] (2024) 114 NSWLR 1; [2024] NSWCA 32 (Fisher v Nonconformist) at [50], Kirk JA (Meagher JA and Simpson AJA agreeing).

[216] [2025] NSWPICPD 83.

[217] Reasons, [14], [58], [61], [62].

[218] [2025] FCAFC 47.

[219] See Payne v Parker [1976] 1 NSWLR 191, 201 per Glass JA.

[220] Jagatramka, [49]; Kuhl, [64]. See J D Heydon AC, Cross on Evidence, 12th edn, 2019, LexisNexis, Sydney, [1215].

[221] [2015] NSWCA 56.

[222] [2012] NSWCA 43; 60 MVR 350.

[223] Appellant's submissions, 1 July 2025, [7].

[224] Appellant's submissions, 1 July 2025, [10].

[225] Appellant's submissions, 1 July 2025, [11].

[226] Appellant's submissions, 1 July 2025, [13].

[227] Appellant's submissions, 1 July 2025, [14].

[228] Respondent's submissions, 6 August 2025, [9.14].

[229] Statement of Mr Tsakiris, 20 February 2025, [14].

[230] Statement of Mr Cutugno, 1 April 2025, p 1.

[231] Statement of Mr Cutugno, 1 April 2025, p 5.

[232] Respondent's submissions, 6 August 2025, [9.15].

[233] Respondent's submissions, 6 August 2025, [9.15]-[9.18].

[234] Respondent's submissions, 6 August 2025, [9.14].

[235] Statement of Mr Tsakiris, 20 February 2025, [22].

[237] Respondent's submissions, 6 August 2025, [9.14].

[238] T1 2.30-3.05; 10.30-33; 13.07-16; 14; 16.01-18.

[240] Appellant's submissions, 1 July 2025, [16], [30]-[32].

[241] Respondent's submissions, 6 August 2025, [9.45]-[9.46].

[242] Perhaps at paragraph [45] of the reasons, but only as confirming other evidence.

[243] Reasons, [22], [26], [28]-[58].

[244] [1904] HCA 44; 2 CLR 198, 209 per Griffith CJ.

[245] [1986] 1 WLR 323.

[246] [2020] FCAFC 122; 279 FCR 631.

[247] ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; 153 IR 228 (ACT Visiting Medical Officers), [17]; Marshall v Whittaker's Building Supply Co [1963] HCA 26; 109 CLR 210 (Marshall), 216, per Windeyer J.

[248] Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; 279 FCR 114, per Perram J, [2], not disturbed on appeal.

[249] Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439, 450.

[250] Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; 279 FCR 114, per Perram J, [4], not disturbed on appeal.

[251] [2020] FCAFC 119; (2020) 279 FCR 114 at [4]-[5].

[252] Lee Ting Sang v Chung Chi-Keung (P.C) [1990] 2 AC 374, 383.

[253] Lee Ting Sang v Chung Chi-Keung (P.C) [1990] 2 AC 374, 388.

[254] Marshall, 216, per Windeyer J.

[255] [1980] HCA 16; 144 CLR 1 (Hope).

[256] [1990] HCA 11; 169 CLR 279, 296-297.

[257] [2015] NSWWCCPD 56, [71].

[258] [2025] NSWPICPD 6, [102].

[260] Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34, (Aluminium Louvres), [37].

[261] New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69 (Winter), from [81].

[262] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; DDCR 421, [91].

[264] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, [48].

[265] Hornsby Shire Council v Salman [2024] NSWCA 155, [91] per Adamson JA (White JA agreeing).

[267] Transcript of appeal hearing, 15 December 2025 (T2), T2 6.25-34.

[269] Here the respondent cites Secretary, Attorney General's Department v O'Dwyer [2022] FCA 1183; 318 IR 216 (O'Dwyer), [28]-[33], but the quotation appears to be from the decision of Wood DP in Nilon, [115].

[271] Respondent's submissions, 6 August 2025, [9.61]-[9.64], footnote 41.

[272] See WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456 (WorkPac), [56]-[57], p 477 [56]; Personnel Contracting, p 186, [43], per Kiefel CJ, Keane, and Edelman JJ.

[273] Personnel Contracting, p 239, [190], per Gordon J.

[274] Gordon J also speaks of this requirement at p 232, [178].

[275] Reasons, [22], [26], [28]-[58].

[276] Statement of Mr Tsakiris, 20 February 2025, [21].

[277] Statement of Mr Tsakiris, 20 February 2025, [56].

[278] Statement of Mr Tsakiris, 20 February 2025, [25].

[279] Statement of Mr Tsakiris, 20 February 2025, [27].

[281] Statement of Mr Tsakiris, 20 February 2025, [18].

[282] Statement of Mr Tsakiris, 20 February 2025, [56].

[283] Statement of Mr Tsakiris, 20 February 2025, [24].

[284] Supplementary statement of Mr Tsakiris, 13 May 2025, [5].

[285] See Australian Air Express Pty Ltd v Langford [2005] NSWCA 96; [49]; Hollis; Personnel Contracting per Gordon J.

[287] Statement of Mr Cutugno, 1 April 2025, pp 4, 5.

[288] Supplementary statement of Mr Tsakiris, 13 May 2025, [5].

[289] Statement of Mr Cutugno, 1 April 2025, pp 4, 5.

[290] Statement of Mr Cutugno, 1 April 2025, p 5.

[293] Supplementary statement of Mr Tsakiris, 13 May 2025, [2]-[3].

[294] Statement of Mr Cutugno, 1 April 2025, p 5.

[295] Statement of Mr Tsakiris, 20 February 2025, [18].

[296] Supplementary statement of Mr Tsakiris, 13 May 2025, [7].

[297] Statement of Mr Cutugno, 1 April 2025, pp 4-5.

[298] Statement of Mr Cutugno, 1 April 2025, p 5.

[299] Statement of Mr Tsakiris, 20 February 2025, [9].

[300] Statement of Mr Tsakiris, 20 February 2025, [10].

[301] Statement of Mr Tsakiris, 20 February 2025, [11].

[302] Statement of Mr Cutugno, 1 April 2025, p 5.

[303] Statement of Mr Cutugno, 1 April 2025, pp 1, 3.

[304] Statement of Mr Tsakiris, 20 February 2025, [14].

[305] Statement of Mr Tsakiris, 20 February 2025, [13].

[306] Statement of Mr Tsakiris, 20 February 2025, [18].

[308] ALAD filed by respondent, 13 May 2025, pp 6-19.

[313] Cowley v Urunga Bowling Club [2011] NSWWCCPD 69 (Cowley) at [189]

[314] Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1, at [28]