1. At the preliminary conference on 13 November 2024, the respondent sought leave to rely on a matter not previously notified as in dispute, namely whether the applicant was ever employed by the respondent. It was indicated at that time the issue would be determined in the event the matter proceeded to arbitration. As that occurred, it is necessary to deal with the application for leave.
2. Section 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) restricts the matters the Commission can determine to notified as disputed prior to an application unless it is in the interests of justice to do so.
3. I am satisfied it is in the interests of justice for the Commission to grant the respondent's request to deal with the previously unnotified matter regarding whether the applicant was employed by the respondent as claimed. The issue was raised by the respondent by the time the matter was first before the Commission for preliminary conference. The applicant then had the opportunity to obtain evidence to address that issue prior to the arbitration hearing. It is a threshold issue and to deny the respondent's request would have the potential effect of creating substantial injustice if the matter was not considered with reference to the available evidence. There is no prejudice to the applicant where he has had the opportunity to, and provided, evidence in support of his claimed employment by the respondent.

1. The following issues remain in dispute and require determination by the Commission, specifically whether:

(a) the applicant was a "worker" according to s 4 of the 1998 Act and, if so;

(b) the applicant was injured in the course of employment according to ss 4 and 15 of the Workers Compensation Act 1987 (the 1987 Act), including whether such employment was the main contributing factor to any injury, and

(c) the applicant's claim was made within the period provided by ss 254 and 261 of the 1998 Act.

1. The respondent accepts the matter should be referred to a Medical Assessor for assessment of whole person impairment if the unresolved issues are determined in the applicant's favour.

1. The following documents were in evidence before the Commission, without objection, and considered in making this determination:

(a) ARD and attached documents;

(b) Reply with attachments from the respondent (Reply);

(c) Application to Lodge Additional Documents (ALAD) lodged by the respondent on 13 January 2025 (ALAD1);

(d) ALAD lodged by the applicant on 20 January 2025 (ALAD2);

(e) ALAD filed by the applicant on 20 March 2025 (ALAD3);

(f) supplementary report of Dr John Giles dated 13 February 2024;

(g) supplementary report of Dr John Giles dated 29 November 2024;

(h) statement of the applicant dated 20 January 2025;

(i) documents provided by the applicant that are said to be from the Maritime Union of Australia;

(j) statement of Tom Voce dated 29 December 2024;

(k) statement of James Cookson dated 1 January 2025;

(l) statement of Lionel Lane dated 5 January 2025;

(m) statement of Ronald Bragg dated 20 January 2025, and

(n) statement of Dwayne Portelli, lodged under cover of respondent solicitor letter dated 31 January 2025.

1. There was no application to call oral evidence or cross-examine any witness at the hearing.

1. Section 4 of the 1998 Act defines a "worker" as:

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

1. There is no contention about the existence of any training contract between the parties and so that aspect of the definition at s 4 is not relevant in these proceedings. I must therefore consider whether the applicant entered or worked under a contract of service with the respondent.
2. The applicant bears the onus, on the balance of probabilities, to establish that he was a worker, according to s 4 of the 1998 Act, employed by the respondent. This onus relates to the threshold issue in the proceedings. That is, the evidence relied upon by the applicant must be sufficient to establish he was employed by the respondent otherwise the entire claim fails.

1. Statement evidence has been provided by the applicant in support of his claim. His 12 June 2018 statement refers to him having worked "at the Sydney waterfront as a waterside worker for a period of around 15 years",[1] initially on a "casual basis" and then in "a permanent position"[2] with various stevedoring companies and that he later "found employment with Patrick Stevedores Pty Ltd in around 1973".[3] He also states that "Patrick Stevedores Pty Ltd was [his] last outdoor employment in the state of New South Wales" before moving to Western Australia during 1978, where he "began working on the Fremantle waterfront for Patrick Stevedores for a period of approximately 4 years".[4]
2. The applicant stated he also worked on the "Brisbane waterfront" for "Patrick's Stevedores for around 12 months" followed by "Brisbane Amalgamated Terminals Limited (BATL), who later became P & O Ports for approximately 10 years".[5] He goes on to recount his various other subsequent employment in the 12 June 2018 statement.
3. In a later statement made on 2 October 2024, the applicant said that:[6]

"...from 1964 until permanency in 1967, I estimate that 50% of my time would have been with Patrick Stevedores as they were one of the largest companies at the time"

1. In his supplementary statement of 22 January 2025, the applicant said that during "the 1970s, permanent work was virtually non-existent, and people worked under a casual system",[7] and that he had a friend, "William (Billy) Richard Kennedy" (Kennedy), who worked for "Patrick Operations under the casual system". According to the applicant's evidence, Kennedy "wanted to return to his old employment because it was more financially stable and permanent".[8] The applicant contends he then "began working under William Richard Kennedy's name", although he does not state when that occurred. The arrangement apparently went on for some time despite being "frowned upon by the Union".[9]
2. At some point, the applicant confessed to a "Union worker [that he] trusted" about the identity deception, which he says was later disclosed to "the manager of Patricks".[10] The company apparently then "officially employed [him] with Patrick Operations, and this is how [he] became a permanent worker" and:[11]

"The document provided by the Maritime Union of Australia states that 'Records changed to be read as of 1.7 1978 - name to be - Paul White.' William's address was also crossed out and my address was written in, being 56 Wentworth Avenue, Mascot 2020. I eventually moved to another residence, which was updated in registration card to 11 McIver Place, Maroubra."

1. The applicant provided documents in the proceedings, which were received into evidence, that are said to be records he obtained from the Maritime Union of Australia. That material consists of copies of what seem to be eight type written filing card style documents that refer to "William Richard Kennedy" or "W. Kennedy" and record various addresses, including those cited by the applicant. There are handwritten amendments on several cards. A "Members' Ledger" headed Waterside Workers Federation refers to "Kennedy. W." as joining on 21 April 1965. There is also a "Company" reference to "Patricks" on the card referred to by the applicant that states "records changed on 1.7.78 name to be PAUL WHITE".[12]

1. The applicant provided, and relies upon, a statement purportedly made on 20 January 2025 by a Ronald Kevin Bragg of Kingsgrove.[13] Mr Bragg refers to "employment with Patrick Operations" and outlines his then working conditions. Although he did not work directly with the applicant, he "would see Paul when we were lining up" at the "beginning of our shifts", recalls drinking with him at "the Big House" and that "he seemed like a nice person".

1. A statement dated 5 January 2025 in the name of Lionel John Lane of Kensington is in evidence.[14] Mr Lane states he worked at "Patrick Operations" from 1964 to November 1991 and described his working conditions. He "knew Paul as [they] both lived and grew up in Mascot". They "would travel to work together in the mornings" and they "gave [their] numbers to the timekeepers every morning at work". Mr Lane states that while at work the applicant "would come to my post and speak...often". The applicant would also "walk past the first aid post and greet [Mr Lane] with a wave".

1. In a statement dated 1 January 2025,[15] James Robert Cookson refers to commencing work with "Patrick Operations Pty Ltd around 1964" and he was "a delegate in the waterfront of the Union". He recalled working conditions in the statement and that he "knew Paul White outside of work as he grew up in Mascot" as did Mr Cookson and that:

"Paul and I worked together at Patrick Operations. There is no doubt in my mind that we came across each other multiple times, possibly to discuss the need of acquiring some sort of safety equipment while we were working.

l also recall seeing Paul every morning at Patricks when we would provide our numbers to the timekeeper."

1. Mr Cookson also recalls that he would see the applicant "at union meetings, which would sometime take place either on the ship itself or during...work breaks".

1. The applicant also obtained a statement from Tom Voce dated 29 December 2024. Mr Voce recounts that he met the applicant while working at Hogan's stevedores, but does not specify when that occurred, and that the applicant "then moved to Patrick Operations Pty Ltd sometime during the 1970s".[16] His knowledge of that is said to be on the basis they both "lived in Mascot". Mr Voce said that he knew the applicant "eventually moved to Port Kembla and then Seals" because they "kept in touch outside of work".[17]

Respondent evidence - Statement of Dwayne Portelli

1. The respondent relies on a statement of Dwayne Portelli, the National Workers Compensation Manager for Patrick Terminals, provided under cover of letter from the respondent's solicitor dated 31 January 2025.
2. Mr Portelli states that "Patrick Terminals does not hold any records from the business entity that traded as Patrick in the 1970s" and that the:

"Patrick business that owns and trades with the Patrick name today is significantly different to the business from the 1970s having gone through many changes over the 50 year timeframe...

With regard to where Mr White worked - it is our understanding that there was no Patrick entity operating at Port Botany in the 1970s. When Port Botany was developed the first operator was ANL in around 1980."

1. The work location is relevant. Although the applicant referred in his statement evidence to having worked on the "Sydney waterside", he did not specify any location. The other statement evidence relied upon by the applicant is also silent on this issue. Mr Portelli goes on to state:

"There is a lot of history from 1970 to where we are now, but if we fast forward to August 2016, what used to be the Patrick business at that time, did have both a General Stevedoring and Container Terminals business which was split in an asset sale. The Container Terminals business retained the Patrick name through sale arrangements and the General Stevedoring business, under separate ownership, was rebranded to Linx Cargo Care. At that time Linx Cargo Care assumed all employee responsibility for the General Stevedoring Business. If Mr White was engaged at a general stevedoring facility then the claim may appropriately belong with Linx Cargo Care.

Further, during the 1970s we understand bodies of industry labour administered employment, although groups of employees may generally have been allocated to one company consistently. Depending on the timeframe being examined these industry bodies may be variously known as S.E.A.L, ASIA and AEWL.

I confirm the Patrick business in its current iteration does not have a filing system that contains documentation going back to the 1970s. Further, given the numerous business entities that have existed under the Patrick name prior to the current day Patrick Terminals, attempting to track down such records would be extremely difficult, if not impossible given the different businesses and indeed industry body arrangements in the timeframe."

1. Mr Portelli referred to the first container terminal being commissioned at Port Botany as being after the dates the applicant's contended period of employment between 1973 and 1978. He does however also note that in the event the applicant worked at the Darling Harbour port, then the identity of the "employing entity" cannot be confirmed.

1. In his statement evidence the applicant has variously referred to being employed by "Patrick Stevedores Pty Limited" and "Patrick Operations". The other statement evidence of Messrs Bragg, Lane, Voce and Cookson cites prior employment with "Patrick Operations Pty Ltd". There is no corroborating fact-based documentary or other evidence from any of those deponents, such as pay slips, tax records or certificates of service, to support their claims of employment or that identify an employer. It is noted that none of those persons, including the applicant, claims to have been employed by the respondent, Patrick Stevedores Holdings Pty Ltd.
2. While at face value, the statement evidence of Messrs Lane, Cookson and Voce, supports the applicant's claim to have been employed by Patrick (which is a term used hereinafter in a generic sense for ease of reference), there is no evidence to substantiate those statements. The statement provided by Mr Bragg does not specifically assert the applicant's employment with Patrick, although it might be inferred, and again there is no independent corroboration of his evidence. It is noted that the statement evidence given by Messrs Bragg, Lane, Voce and Cookson does not make any reference to the applicant assuming the Kennedy identity for the purpose of deceiving his contended employer, Patrick. This is especially curious in relation to Mr Cookson if, as the applicant seems to imply in his last statement, that they both knew Kennedy, although an alternate reading is that they may have been friends independently of each other.
3. As has been identified by the respondent, which is accepted as correct, the provenance of the union records, said to have been obtained by the applicant from the Maritime Union of Australia, is not known. There is no independent evidence to explain that material, where it came from, what it records, how it was obtained, when and why it was produced, when and in what circumstances it was amended (and by whom).
4. The applicant relies on that evidence to support his claim that he was employed by Patrick, but in a name other than his own. According to the applicant, those records are said to confirm his employment with Patrick. Even if they were accepted to be authoritative records of a trade union from the relevant period, they would, at best, be confirmation of union membership for Kennedy. Although an inference of employment might be drawn from those documents had they been authoritatively confirmed as genuine, given union dues are generally paid by a person who is employed, they do not confirm employment with Patrick (whatever that entity may have been) for the applicant.
5. In any case the applicant's own evidence is that he made the purported employer aware of the deception in or about 1978. Accordingly, there should be employer records for both the applicant and Kennedy; the respondent has neither. Indeed, the respondent has also submitted that it holds no record of employing any of Messrs Bragg, Lane and Cookson either.[18] In such circumstances, it may well be, as has been suggested by Mr Portelli, that the claim should have been made against a different company.
6. In general, the evidence provided by the applicant in his statements is vague and does not address matters that might be considered fundamental to his claim. While he describes working outdoors, on the "Sydney waterfront", he makes no reference to the actual place or places where that work is said to have occurred. That is, the precise location in Sydney. In a 9 February 2023 reply to a request for particulars,[19] the applicant's solicitor identified the "Sydney waterfront" relevant to "Patrick Stevedores Pty Limited" as being an address at Port Botany. It is therefore reasonable to accept the applicant worked at that location. However, as highlighted by Mr Portelli, there were no waterside operations at Port Botany at all until after the period claimed by the applicant, and that business was conducted by another company, ANL.
7. Mr Voce refers to "knowing" the applicant worked at Port Kembla and "Seals", whereas the applicant made no reference to work at those locations in any of his statements; a further demonstration of the vague nature of his evidence. Given the applicant's statement evidence purports to contain a detailed history of his working life, the evidence of Mr Voce would appear to contradict that version. The applicant refers to only working at the "Sydney waterfront" (although wherever that might have been is unclear) prior to moving to Western Australia. It is not for the Commission to attempt to reconcile the discrepancy, but it is relevant and noted.
8. The statement evidence relied upon by the applicant does not allow a full and proper assessment to be made of where he worked precisely, for how long and in what circumstances. These are fundamental matters that have not been addressed despite the onus upon the applicant to do so in order to establish his case to the requisite standard.
9. Although it was disclosed in his final statement, the applicant made no reference to the false identity issue in his first two statements and raised that issue apparently only after the respondent was unable to confirm his employment around the time the ARD was made. The ultimate concession by the applicant that he engaged in a course of deception for what was presumably a lengthy period, is not assisted by his failure to outline that activity in his initial evidence. Despite having made the three statements that are in evidence in the proceedings, it remains unclear from that generally obscure evidence, for how long the applicant assumed the contended false identity during his claimed period of employment. As best can be ascertained, it would seem to have been well in excess of a decade if, as he claims, he commenced with Patrick on a casual basis in the mid-1960s and confessed to the ruse in 1978.
10. The applicant's evidence refers to Patrick, or companies that are some variations of it, but has not established any of those entities were the respondent nor that he was employed by them. There is a dearth of supporting documentary evidence for the relevant period. Even making allowance for the passage of a considerable period, it is reasonable to expect that a person who was employed by a business for more than a decade would possess at least some record of that employment, yet nothing of substance has been presented to the Commission in these proceedings. It is also noteworthy that none of Messrs Bragg, Lane, Voce or Cookson provided documentary evidence in support of their assertions of employment and the related matters in their statements. These are relevant considerations where the respondent has no record of employment for the applicant, in either of the names he claims to have used, or for other persons who provided statement evidence in his support.
11. The onus is upon the applicant to establish, based on evidence, that he was employed by the respondent. I do not consider this critical threshold issue was adequately addressed in his submissions, despite being on notice of it and providing the statement and related documentary evidence (said to be from the Maritime Workers Union) in response. The applicant has not identified the entity that is said to have been his employer. He has also failed to provide evidence that he was employed by whatever that entity might have been. No definite employment link to the respondent has been made. Allowance must be made for the passage of time, but evidence of substance that proves those key issues is essential. A collection of statements without supporting evidence is not sufficient.
12. The evidence before the Commission in these proceedings does not establish to my reasonable satisfaction that the applicant was employed by the respondent or an entity for which it has liability. I cannot accept the applicant was a worker for the purposes of s 4 of the 1998 in the circumstances. Given that is a threshold requirement, the claim must fail.

1. I am not reasonably satisfied on the evidence before the Commission that the applicant was a worker employed by the respondent. The applicant's claim cannot succeed and there is an award for the respondent.

[10] Applicant's statement of 22 January 2025, p 2 at [14] and [15].

[11] Applicant's statement of 22 January 2025, p 2 at [16].

[18] Respondent's written submissions, p 3 at [30].