Cagney v D&J Building Contractors Pty Ltd

In this matter, the Court of Appeal considered whether the confirmation of WorkCover’s decision, that the applicant was a worker as defined by s 11(1) Workers’ Compensation and Rehabilitation Act 2003 by the Regulator gave rise to an estoppel on the issue of whether the applicant was an employee at common law. At first instance, relying upon SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81, the trial judge had held that the Regulator’s decision did not have the necessary “judicial” quality to give rise to an estoppel on the issue. In granting leave to appeal but dismissing the appeal, the Court held that there was no error in the trial judge’s finding that the respondent was not estopped from denying the applicant was a worker.

Mullins P and Flanagan and Boddice JJA

27 June 2025

The applicant’s action for damages for personal injuries against the respondent (whom he claimed was his employer) arising out of an accident was dismissed at first instance with the trial judge determining that he was not a “worker” as defined in s11(1) Workers’ Compensation and Rehabilitation Act 2003, [1], [2], but rather a subcontractor. The applicant had previously been accepted as a “worker” by both WorkCover and the Regulator. He contended, accordingly, the respondent was estopped from contending he was not a worker. He sought leave to appeal on the basis that the trial judge had erred in finding that he was not a worker, and in finding that the respondent was not estopped from denying the applicant was a worker as defined under s 11(1) of the Act by reason of prior determination of that issue. [3].

Was the applicant engaged as a worker?

The applicant was a carpenter with extensive experience. He was predominantly self-employed and he contracted his services to others. [7]. The respondent, a licensed building contractor, engaged him on a cash basis to carry out some roofing work which was anticipated to take one day. There was no written contract between the parties. [8]–[12]. The trial judge observed that neither was there any mention of completing a tax file declaration or superannuation in discussions between the parties. [10], [14]. With regard to the lack of formality and the fact that the applicant was to be remunerated in cash, the primary judge deducted that:

“Not only would there be no taxation withheld from the payment to the [applicant], the arrangement was deliberately one to avoid that. Indeed, in the [applicant]’s own words, it was a ‘cashie’ which meant that he was to ‘get paid cash instead of hourly rate or wages’. One readily infers that the [applicant] expected that he would earn remuneration on which he would never pay tax.” [14].

In the Court’s view, that inference was not necessarily conclusive since the question of whether a worker is an employee for the purpose of assessment for PAYG withholding under Tax Administration Act 1953 (Cth) turns upon an objective appraisal of the parties’ relationship, rather than focussing upon whether they intended to comply with the mandatory provisions of Tax Administration Act 1953 (Cth) concerning salary or wages paid to an employee. [39].

In any event, the Court considered the fact that neither the applicant nor the respondent proposed any alteration to the usual mode that the applicant undertook his carpentry work as an independent contractor (notwithstanding the applicant’s request to be paid in cash) as indicative that the parties did not intend for the applicant to be other than a subcontractor for the duration of his time at the worksite. That was further supported by the cursory exchanges the parties had prior to the commencement of work: “the applicant was continuing to operate as a subcontractor….  conducting his own business and not involved in the respondent’s business as an employee”. [40].

Was there a prior determination of the issue of whether the applicant was a worker that gave rise to an estoppel?

Before the trial judge, relying upon Kuligowski v Metrobus (2004) 220 CLR 363, the applicant argued that the Regulator’s decision had the necessary “judicial” quality to give rise to an estoppel on the issue. There, in examining a decision of a review officer under Western Australian compensation legislation, the High Court had held that where three factors are present, an issue estoppel can be created which prevents the re-agitation of a question of fact or law that has already been determined. The factors are the fact that the same question has been decided; that the decision that decided the same question was final; and that the parties that were heard in relation to the question that was decided are the same as the parties to the proceedings in which the estoppel is sought to be raised. 

After closely examining the provisions of Workers’ Compensation and Rehabilitation Act 1981 (WA) the trial judge held that the relevant review process and decision under the Western Australian legislation was simply not comparable to that under Workers’ Compensation and Rehabilitation Act 2003. In his assessment, the Western Australia process was considerably more formal than that of review under Workers’ Compensation and Rehabilitation Act 2003. In addition, the trial judge concluded that review decisions under Workers’ Compensation and Rehabilitation Act 2003 did not have the same finality as those in the Western Australian jurisdiction, a view which he stated was confirmed by SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81. [18].

The applicant contended that the trial judge’s reliance upon SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81 was misconceived, since the application of Kuligowski v Metrobus (2004) 220 CLR 363 to the Regulator’s decision (confirming WorkCover’s decision to accept his application for compensation on the basis he was a worker) gave rise to an estoppel in relation to that issue in the applicant’s common law proceeding against the respondent. [19].

The Court did not agree with the thrust of that argument. It held:

(1)That the legislative schemes under Workers’ Compensation and Rehabilitation Act 2003 and Workers’ Compensation and Rehabilitation Act 1981 (WA) were not “relevantly of similar effect”. [19].

(2)That despite the lack of any appeal to the Regulator in SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81, that decision had application to the current dispute in the subject appeal, since in that case, the court adopted a construction of Workers’ Compensation and Rehabilitation Act 2003 which treated WorkCover’s decision on the acceptance of the application for compensation as relevant only to the compensation scheme and not to any claim for damages that was pursued by the employee. Taking the same approach in the current matter would mean there was no avenue for the applicant to rely on Kuligowski to assert an issue estoppel against the respondent in respect of the issue of whether the applicant was a worker for the purpose of his proceeding for common law damages. [26].

(3)That even in the event an issue estoppel arose from the Regulator’s decision, it would have been confined to the finding that the applicant was a worker for the purpose of entitlement to compensation under the scheme pursuant to Workers’ Compensation and Rehabilitation Act 2003 and for satisfaction of the condition precedent in s 237(1)(a)(i) for bringing the common law damages claim. It would have had no application in relation to WorkCover in respect of the issue of whether the applicant was a “worker” under s 11(1) for the purpose of defending the proceeding for common law damages in relation to the injury sustained by the applicant. The trial judge’s finding that the respondent was not estopped from denying the applicant was a worker was not affected by error. [27].

Disposition

Whilst leave to appeal was granted the appeal was dismissed.

A Jarro