Rolfe (aka Curnow) v Blanshard & Others [1993] NSWCC 3; (1993) 9 NSWCCR 20 (4 February 1993)

[1993] NSWCC 3; (1993) 9 NSWCCR 20 (4088-89)

Compensation Court of New South Wales: Burke J

ROLFE (aka CURNOW) v. BLANSHARD & OTHERS

4 February 1993

PERSONS ENTITLED TO COMPENSATION - WHO IS "WORKER" - CONTRACT OF SERVICE - EXISTENCE OF CONTRACTUAL RELATIONSHIP - NURSE PLACED BY AGENCY IN PRIVATE HOME FOR NURSING ASSISTANCE - DEEMED WORKER - ADMISSIONS

PERSONS ENTITLED TO COMPENSATION - WHO IS "WORKER" - PERSONS DEEMED TO BE WORKERS - CONTRACTORS - EXISTENCE OF CONTRACTUAL RELATIONSHIP - NURSE PLACED BY AGENCY IN PRIVATE HOME FOR NURSING ASSISTANCE - RELATIONSHIP TO PLACEMENT AGENCY - RELATIONSHIP TO CLIENT - CONTRACT EXCEEDING STATUTORY AMOUNT - WORK WHOLLY PERFORMED BY CONTRACTOR - ABSENCE INDEPENDENT BUSINESS - WORKERS COMPENSATION ACT 1987, SCHEDULE 1, CLAUSE 2(1)

J.W. Catsanos, for the applicant

G.P. Neilson, for the first respondent

A.M. Quirk, for the second respondent

W.J. Roche, R. Harrington and B. Moore, for the third respondent

Cur adv vult

BURKE J: The worker claims weekly payments in respect of incapacity alleged from 8 November 1987. Such is alleged to result from employment injury received on 4 May 1985. The applicant also alleges loss of efficient use of the left leg resulting from the injury.

This matter was heard before his Honour the late Judge Gibson on 4 February 1992 and 18 June 1992 and he heard addresses and reserved judgment on 30 June 1992. The judgment remained undelivered when the Judge died shortly after. In that circumstance the matter was listed before me on 15 September 1992. There was then available the transcript of the evidence, the exhibits and the transcript of the several addresses as well as a short written submission from the second respondent. When the matter was mentioned before me the parties expressed their contentment that I decide the matter on the material adduced before Gibson J. It was indicated that no issue of credibility arose such that I should be required to see and hear the applicant who was the only witness to give oral evidence. While there were some subsidiary issues of fact they were unavailable on the transcript but the principal issues were substantially questions of law. After a brief recapitulation of the principal issues by the parties I, too, reserved judgment - hoping for better fortune than my colleague.

With the coming of vacation I have now had the opportunity to give consideration to the material introduced. I regret the long delay.

At the outset I acknowledge that a reading of the transcript, particularly some of the comments of his Honour, would suggest that his Honour had formed some preliminary views on a number of the issues litigated. For instance I have a clear feeling that his Honour was rather unimpressed with the correctness of the submitted dependency of the applicant's child; similarly it seems abundantly clear that his Honour was of the view that the worker's case lived or died on whether she was a worker in the primary sense without recourse to any of the extending provisions of the Act. Indeed, on this latter matter of whether the extending provisions applied or not, he expressly said that he did not wish to hear Mr Catsanos, counsel for the applicant. That might usually signify that he was already convinced on the matter. However, in the context of the prior submissions of the respondents which dealt with the issue of worker in the primary sense and forbore any analysis of the application of provisions such as section 20 and Schedule 1, clause 2, it rather seems he was suggesting to the applicant's counsel that he too should refrain from such analysis as irrelevant.

Different minds have different impressions. Having read the evidence I expected the addresses to be overwhelmingly concerned with the question of the application or otherwise of the deemed worker provisions of the Act and was mildly astonished by the discursive treatment accorded these matters. True, in the peculiar circumstances of this matter, such is understandable - after all the worker was actually paid compensation by the first respondent for over eighteen months and there was in evidence the employer's report of injury to her insurer admitting that the applicant was her worker in the primary sense. Nonetheless, the detail of the relationship between the applicant and the first respondent had been fully canvassed and it was abundantly clear that it would be submitted that the rebuttable admission of employment had been negated. All this rather troubles me. Courts should not go about deciding issues that the parties have never proffered in any real way. However, I believe the issue tendered to the Court in this regard is whether or not the applicant is a worker within the ambit of the Act. That is the issue that should be decided. All respondents had adequate opportunity to address that issue in regard to any aspect that they chose. It was only the applicant who was, perhaps, induced to forsake developing the point in address. The very fact that the applicant offered to address the issue suggests it remained alive and had not been formally abandoned. The written submission of Ms Quick on behalf of the second respondent makes it clear that "deemed" worker was a live issue.

BACKGROUND

The applicant is aged 42 years, born 2 May 1950, She was married. Is, at least, separated if not divorced. She has a daughter, aged about 11 years, whom she claims as dependant. The worker attended school to 1967 and then did nursing training becoming a registered nurse around 1971. She thereafter worked as a nurse. For about four months in 1973 she had a relationship with the Gordon Trained Nurses Club. This entity arranged work. It had contacts with hospitals, doctors etc. whereby it was aware of the need for nurses by segments of the community. This work was made available by it to nurses who were "on the books". The nurse who was provided with these opportunities to work paid the Gordon Trained Nurses Club a fee of $10 per month for the service. The applicant worked in this fashion for about four months. She then had a six-month stint with Royal Prince Alfred Hospital before returning to this arrangement with the Gordon Trained Nurses Club around April or May 1974. She thereafter worked in these multifarious situations until 1978 when she ceased work. She was then married. She bore her daughter, Alice, and reared her for a few years. It was late 1980 or early 1981 when she chose to return to the workforce. This was initially on a part-time basis doing short-term jobs. With the subsequent breakdown of the applicant's marriage she became available for full-time work and advised Mrs Edbrooke accordingly. The offers of work thereafter were of longer duration running up to several weeks continuously.

ARRANGEMENT WITH GORDON TRAINED NURSES CLUB

It was at this time that the applicant renewed her acquaintance with the second respondent. In the interim there had been a change of management. The Gordon Trained Nurses Club was now operated by Mr and Mrs Edbrooke. The arrangements were quite similar to those which had pertained earlier with the substantial change being in regard to payment. Whereas previously the nurse was paid directly by the client and paid this $10 per month to the Gordon Trained Nurses Club, she now billed the client requiring the payment to the Gordon Trained Nurses Club on behalf of the nurse. The cheques were paid to the Gordon Trained Nurses Club who deducted 10 per cent and accounted to the nurse for the balance. The Gordon Trained Nurses Club provided the book of appropriate forms for this process which were completed by the nurse and given to the client. Receipts were returned by the Gordon Trained Nurses Club through the nurse. The form of invoice with marginal receipt headed in the name of Gordon Trained Nurses Club with that organisations address and telephone number is Exhibit A.

Jobs were still arranged by phone. They could be relief jobs in public or private hospitals or special nursing for individual patients. One of the Edbrookes would advise the nurse where and when the job was, the start and finish times and, presumably something about the general nature of the particular engagement. In general the nurse was free to indicate the types of work preferred and whether it was full-time or part-time work that she sought. The Gordon Trained Nurses Club issued a list of rates which the nurse would charge (see Exhibit B). The Gordon Trained Nurses Club paid no holiday pay nor annual leave to the nurses whom it placed; it made no tax deductions from the amounts received and paid to the nurse. It did require that the nurse wear an appropriate uniform. If the nurse wished a holiday be it a day or a month or whatever, she was required to advise the Gordon Trained Nurses Club and to arrange relief through that organisation. The same arrangement applied in respect of casual absences as through sickness or some other emergency cause.

The nurse was free to refuse a particular job or jobs. The applicant deposed that she never had declined an offer and indeed that she considered it would have been to her disadvantage to do so. Nonetheless, on the totality of the evidence, it is clear that she could decline. Whether the Gordon Trained Nurses Club thereafter chose to offer further work or not was another matter but there was clearly no sanction envisaged by the parties to the arrangement and certainly no means by which the Gordon Trained Nurses Club could have compelled a nurse to accept a particular offer. Similarly, once a job was undertaken by the nurse, the Gordon Trained Nurses Club could not, itself, terminate the engagement. Commercially, there was no reason why it would wish to if the client was happy with the service provided. If the client was dissatisfied with the service of the nurse the arrangement would seemingly be brought to an end by advice to the Gordon Trained Nurses Club, directly or through the nurse.

THE ARRANGEMENT WITH MRS D.M. BLANSHARD

Mrs Blanshard was an elderly woman who was estimated to be in the vicinity of 86 to 88 years of age. In 1983 she had need of nursing services. Patently she contacted the Gordon Trained Nurses Club either personally or through an intermediary soliciting their assistance in procuring such service. There was probably some correspondence as to rates, times, duration and the like. Certainly, under date of 26 March 1985, the Gordon Trained Nurses Club wrote to Mrs Blanshard advising her of a change in the rates. In any event this job was offered to the applicant by the Gordon Trained Nurses Club and was accepted by her. The applicant provided the nursing services to Mrs Blanshard between 8.30 pm and 7.30 am five days in one week and six days in the alternate week. These included administering medication and general nursing care in accordance with the physician's directions; attending to personal hygiene including toileting, sponging and bathing as required; provision of some meals, light I gather, and the intermittent cup of tea and such refreshment and generally meeting the personal needs of the patient.

The applicant, with a degree of assistance from the other two respondents, endeavoured to establish that Mrs Blanshard exercised direction and control over her in the legal sense such as would indicate a contract of service between them. This is seemingly on the basis that the applicant endeavoured as far as possible to meet the convenience of her patient. If the patient wanted her nails cut before or after her bath the applicant was perfectly prepared to oblige. The order in which the necessary administrations were performed were of little consequence and if one such sequence pleased the patient then why not. The applicant was not there to regiment Mrs Blanshard. I don't doubt that the applicant would have been prepared to assist Mrs Blanshard in ways that had little, if anything, to do with nursing care. Mrs Blanshard may have been equally fussy with her hairdresser and given detailed instruction as to how she would like her hair done and may well have wanted a cup of tea half way through the ministrations but such would not, in my view, suggest direction and control in the master and servant sense.

INJURY

The relationship continued so with Mrs Blanshard until the early morning hours of Friday 4 May 1985. The applicant was performing a shoulder lift to move the patient further up the bed in doing so she had an onset of back pain radiating into the left buttock area. She had the weekend off in any event. She consulted Dr Koenig on the following Monday having rung both Mrs Blanshard and Mrs Edbrooke to advise that she was unable to work. Doubtless appropriate relief was arranged by the Gordon Trained Nurses Club.

The applicant remained off work until 13 May 1985. She obviously completed the claim form (Exhibit 2) much later - on 24 October 1985 - and the following day Mrs Blanshard completed the employer's report of injury (Exhibit 1). Mrs Blanshard's Workers Compensation insurer, National Employers Mutual Indemnity Association Ltd., subsequently accepted liability and made the requisite payments in respect of incapacity and expenses of treatment.

After resuming work the applicant was restricted in what she could physically do. This she suggests she explained to Mrs Blanshard. She reduced the alternate weeks from six days to five days. She deposes, and is not challenged, that as she worked on her symptoms increased. She was attending for medical investigation and treatment.

In January 1986 the applicant arranged with both Mrs Blanshard and Mrs Edbrooke that she have a couple of weeks off. Later she received a phone call from Mrs Blanshard that she would not be required any more after 10 February 1986. A similar call from Mrs Edbrooke followed. The applicant has not worked since that date. National Employers Mutual Indemnity Association Ltd reinstituted weekly payments of compensation and continued to pay such up to 6 November 1987. The termination of payments followed shortly after medical examination by Dr Watts on behalf of the insurer. Dr Watts report of 22 October 1987 (Exhibit 4) found the worker unrestrictedly fit. That suggests the basis of termination.

THE LEGAL CHARACTER OF THE APPLICANT'S ARRANGEMENTS

VIS-A-VIS THE FIRST RESPONDENT

Qua Mrs Blanshard, did the arrangement constitute a contract? There is no evidence of any negotiation between the worker and first respondent at the inception of the arrangement which would suggest an intent to form a contractual relationship. Such negotiations as there were in bringing the arrangement into existence appear to have been between Mrs Blanshard and the Gordon Trained Nurses Club. Unless the latter was acting as agent for the worker that, qua the worker, would appear to be res inter alios acta. The evidence suggests that the worker came to the first respondent as the result of an agreement between the latter and the second respondent. The worker was more the subject matter of such an arrangement than a party to it.

The applicant merely points to the way in which she and Mrs Blanshard operated thereafter and submits that the Court would infer that the parties intended to contract and, furthermore, that such intended contract was a contract of service. This is suggested to arise from the direction and control allegedly asserted by Mrs Blanshard over the manner in which Ms Rolfe performed her duties. Frankly it does not appear to me, on the evidence, that Mrs Blanshard sought to direct the manner in which the applicant would perform her services. Surely she may have expressed a desire for the various functions to be performed at particular times or in a particular order but it does not appear to me that even the applicant felt herself constrained by any legal relationship to observe such indications.

It seems to me that the relationship was quite analogous to that of a client and a home aide provided through the Homecare Service. The legal relationships are between the home aide and Homecare and between the client and Homecare. In operation it is the client and home aide who are in frequent contact but without a particular contractual relationship. The client may want the lounge vacuumed before the bathroom is cleaned or whatever but such interaction between the client and home aide do not suggest any master and servant relationship.

It is noticeable that nothing like a consideration for the services provided moved from the first respondent to the applicant other than most indirectly. When the applicant at the end of the week or such other relevant period presented a "bill" for the work it was a bill which derived from the Gordon Trained Nurses Club and it was to the latter that the relevant amount was paid. Other considerations such as tax deductions, annual leave, sick pay and the like apart, the want of any direct payment for services to the applicant is a contra-indication of a contract of service.

Overall I am of the view that there was no contract of any sort between the worker and first respondent. I apprehend that there was a legal arrangement between the first and second respondents and, potentially, between the applicant and second respondent but fail to appreciate any between the worker and first respondent. What relationship there was does not appear to me to be contractual in character and certainly not suggestive of any contract of service. Not only would I feel that the worker is not a worker of the first respondent in the primary sense, but also that the absence of any relevant contract renders it impossible that the worker could fall within any of the statutory extensions so as to render the first respondent liable under the Act.

The admissions in the documentation of the claim initially made against Mrs Blanshard are emphasised by the applicant and the other respondents. There are clear admission by the first respondent and its insurer that the applicant is a worker in the primary sense and was employed as such by the first respondent. The parties involved thereafter, for a lengthy period, acted consonantly with such being the case. However it has not been suggested that the first respondent is estopped by that admission and such action from now traversing the issue of worker. In my view no such estoppel arises. While such admissions are powerful evidence, they are not conclusive of the issue. Despite such admissions it is my view that a consideration of the arrangements between the applicant and first respondent disclose no contract of any sort and show the admission otherwise to be erroneous.

VIS-A-VIS THE SECOND RESPONDENT

The general arrangement between the worker and the second respondent also does not appear contractual to me. As in the Odco cases (mentioned hereunder) the Gordon Trained Nurses Club probably represents itself as an agency to procure work on behalf of its contractor nurses. The initial arrangements do not appear to involve any mutually enforceable promises such as to form a binding legal relationship. That I believe changes once there is a particular offer of work.

The business of the Gordon Trained Nurses Club was that of a placement agency. It is an example of what has been termed a "body-hire" system in the building industry. It had clients who required nursing services. It had nurses on its books who required placement to render such services. It functioned to fulfil the needs of both categories by bringing them together. It did so for reward. Just by whom it was rewarded is a trifle ambivalent. Directly it received gross income from the client, deducted its percentage and paid the balance to the nurse. Notionally, judging from the applicant's Income Tax Returns, it was a receipt of money due to the nurse and the nurse notionally paid the charge of the Gordon Trained Nurses Club.

The general arrangement between the worker and the Gordon Trained Nurses Club that the latter would try to find a job or jobs for the former and the former will try to do such satisfactorily when that occurs and the details concerning rates charged, wearing of uniform, arranging relief, using the forms of invoice prepared by the Gordon Trained Nurses Club and the like appear to me to constitute no more than an agreement to contract and not a contract per se.

However, once the Gordon Trained Nurses Club offers a particular job to the worker and the worker accepts that offer then I believe there is a contract between them and the terms thereof are spelt out by the general agreement discussed above. Then there are mutual promises and consequent financial gain to both parties. Is such a contract a contract of service? I would think not. However, it appears to me that such a contract falls within the statutory extensions of the Act so as to deem the applicant a worker of the second respondent.

The second and third respondents have referred me to the decision in RIMMER v. DAHL'S NURSING AGENCY, Compensation Court, No. 1111/87, Egan J, 18 June 1990, unreported. The arrangements between the several parties in that matter were much as in this. There are variations in the facts, particularly as to method of payment, but they seem to me to be of peripheral importance. The same types of arguments were advanced to and rejected by the trial Judge in that matter. His Honour certainly rejected the submission that the worker in that matter was an employee of either the nursing agency or the user of the nurse's services. He found, much as I have found above, that, in a general sense, there was no contractual relationship between any of the relevant parties. The point of divergence is when the nursing agency makes an offer of particular work to the nurse. When that occurs I am of the view, contrary to his Honour, that a contractual relationship does arise between the nurse and the agency. His Honour referred to no authority other than indirectly to the ratio of cases such as STEVENS v. BRODRIBB SAWMILLING CO PTY LTD [1986] HCA 1; (1986) 160 CLR 16 in resolving the issue of worker in the primary sense. It is doubtful whether his Honour could have had access to the decision of the High Court in the Odco case which is referred to hereunder on the issue of deemed worker.

Situations very similar to these types of arrangement were considered by the High Court in ACCIDENT COMPENSATION COMMISSION v. ODCO PTY LTD [1990] HCA 43; (1990) 64 ALJR 606 and by me in SHAFIR v. BEACON BUILDING SERVICES PTY LTD & ODCO PTY LTD, Compensation Court, No. 3991/90, 27 April 1992, unreported.

The High Court was concerned with the application of section 8(1) of the Accident Compensation Act 1985 (Vic) which provided:

"Notwithstanding anything in this Act or any other law, where any person (in this section referred to as 'the principal') in the course of and for the purposes of a trade or business carried on by the person enters into a contract with any natural person or natural persons (in this section referred to as 'the contractor') -

(a) under or by which the contractor agrees to perform any work not being work incidental to a trade or business regularly carried on by the contractor in the name of the contractor or under a firm or business name; and

(b) in the performance of which the contractor does not either sublet the contract or employ workers or although employing workers actually performs some part of the work personally -

then for the purposes of this Act the contractor shall be deemed to be working under a contract of service with an employer and the principal shall be deemed to be that employer and the amount payable by the principal to the contractor in respect of the performance of work under the first mentioned contract shall be deemed to be remuneration."

Odco operated a similar type business to the second respondent in this matter. In that matter builders required tradesmen; Odco had such on their books, they agreed to procure work for the tradesmen and supply tradesmen to the builders. They invoiced the builder at a margin over what was paid to the tradesman. The tradesmen were not constrained to accept work offered, Odco could exercise no direction and control if they did accept the job. The builder determined what, where and how the tradesmen did the required work. The real differential factors are probably that the arrangement with the individual tradesman was in writing and it acknowledged that Odco was not an employer, therefore there were no PAYE deductions, the tradesman had to make his own arrangement regarding accident insurance (which was facilitated by Odco), join a union etc.

The High Court judgment (at 608-610) discussed the arrangement:

"Trouble Shooters Available submits that section 8 applies only to contracts under or by which a tradesman agrees to perform work for the other party to the contract ...

We should not have thought the words of section 8(1)(a) lend themselves to the interpretation that the work which the tradesman agrees to perform is work to be done for the principal rather than someone else or that the principal is to be the beneficiary of the work. True it is that there is a stronger reason for deeming the contract to be one of service in such a case, but we do not consider that this is a sufficient ground for confining the ordinary meaning of the statutory language when, according to that meaning, the words have a sensible operation.

Moreover, on the view which we take of the contractual arrangements with Trouble Shooters Available, the tradesman agrees to perform work for Trouble Shooters Available, even though the builder is the ultimate beneficiary of that work.

...

Once a tradesman accepts an offer of work and attends at a client's site, he remains at the site working for as long as that client requires or for as long as the tradesman wishes. Trouble Shooters Available does not exercise and is not able to exercise any control whatsoever over what the tradesman does at the site or how he does it. The only contact Trouble Shooters Available has with the tradesman is in obtaining information of what work he has done. The tradesman contacts Trouble Shooters Available by telephone, usually every Tuesday, to advise the details of hours and sites worked for which clients during the previous seven days. From this information, invoices are raised by Trouble Shooters Available to the relevant client.

The conclusion to be drawn from this material is that the tradesman enters into a contract with Trouble Shooters Available by accepting the offer of work made by telephone. The fact that the tradesman is evidently free to withdraw from the date at any time because he objects to work or to work further on the ground of safety or for some other reason is by no means inconsistent with entry into a contract with Trouble Shooters Available on acceptance of the offer of work communicated by telephone. It may well be that the tradesman has a right to withdraw his services. The nature and scope of that right were not explored in argument and it would therefore be unwise to speculate upon the topic now, except to say that there was no suggestion that it rendered the contract between Trouble Shooters Available and the tradesman illusory.

When the tradesman accepts the offer of work, a contract comes into existence on the terms set out in the document headed 'Agreement to Contract' which the tradesman has previously signed. That document contains the terms which are to govern the contractual relationship which arises between him and Trouble Shooters Available once he accepts on offer of work communicated to him by Trouble Shooters Available...

...

... So far as the builder is concerned, it enters into a contract with Trouble Shooters Available whereby it agrees to pay Trouble Shooters Available an amount which will enable Trouble Shooters Available to pay remuneration to the tradesman. In the circumstances outlined by the affidavit, on the oral acceptance by the tradesman of the communicated offer by Trouble Shooters Available of work, an agreement arises between Trouble Shooters Available and the tradesman constituted by that offer and acceptance and the terms set out in the document entitled 'Agreement to Contract'. That agreement is one whereby the tradesman agrees with Trouble Shooters Available to perform work for the benefit of Trouble Shooters Available in the sense that the work is done for the purposes of Trouble Shooters Available's business and enables Trouble Shooters Available to derive remuneration from the relevant builder which will enable Trouble Shooters Available to pay the tradesman for his services."

A similar analysis of the facts of this matters leads to similar conclusions.

The provisions of section 8 of the Victorian Act seems to be an amalgamation of the provisions of section 20 and Schedule 1, clause 2 of the NSW Act.

Section 20(1) provides:

"If any person (in this section referred to as 'the principal') in the course of or for the purposes of the person's trade or business, contracts with any other person (in this section referred to as 'the contractor') for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if that worker had been immediately employed by the principal."

Subject to the emphasised term it seems to me that all the preconditions of the section are complied with in this matter. However the section seems to provide benefits for workers employed by the contractor and not for the contractor himself. In the absence of argument, and there has been none in this matter, I would take the superficial view that in this case, Ms Rolfe, being the contractor, does not come within the ambit of the provision.

Section 5 brings the provisions of Schedule 1, clause 2(1) into operation. That clause provides:

"Where a contract -

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

(b) to perform any work as an outworker,

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

Upon acceptance by the worker of the offer by Gordon Trained Nurses Club of work with Mrs Blanshard it is my view that a contract between them came into existence. From the point of view of either party that contract had a value exceeding the statutory $10. The worker neither sublet the contract nor employed workers. The worker conducted no independent business. The conditions of the provision are thereby satisfied and the operation of the provision deems Ms Rolfe to be a worker employed by the Gordon Trained Nurses Club and entitled accordingly under the Act.

The High Court in the ODCO case disposed of the argument that may have been put that it is necessary for the work under the contract to be in connection with a project actually undertaken by the other party. In any event were it so it still seems to me that Ms Rolfe would fulfil such a requirement. The work undertaken by the Gordon Trained Nurses Club is to provide nursing assistance to Mrs Blanshard. That work is wholly performed by the applicant.

The other arguable matter is whether or not the applicant carries on an independent business on her own account. In my view any such submission is untenable. The applicant had worked exclusively under the auspices of the second respondent for some years. She exhibited none of the indicia of operating a business such as advertising, business entries in the phone book, business stationery or the like. The only possible source of an inference otherwise is that she used the Income Tax Return form appropriate to a tax-payer operating a business, describing her business or occupation as "Registered Medical Nurse" and claimed deductions for such things as operating her car, maintenance of uniforms, telephone use and the "commission" paid to the Gordon Trained Nurses Club. Without more I would not feel that such was sufficient to lead to a conclusion that she was regularly carrying on a business in her own name. The applicant, in fact, was a contractor and the form used was quite appropriate to the particular arrangement without imputing a particular business being carried on by the applicant.

IS THE APPLICANT A WORKER WITHIN THE ACT?

For those reasons I am of the view that the applicant is neither a worker nor deemed worker of the first respondent and that she is a deemed worker of the second respondent pursuant to the provisions of Schedule 1, clause 2.

[His Honour then dealt with matters which are not the subject of this report - Ed]

Solicitors for the applicant: Andrew Fegent & Co

Solicitors for the first respondent: Curwood & Partners

Solicitors for the second respondent: Connery & Partners

Solicitors for the third respondent: P.J. Garde