VENEER AND TIMBER PRODUCTS PTY LTD v YARNOLD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY ACJ, ROLFE and BAINTON AJJA 18 July 1995, 4 August 1995 [1995] NSWCA 486 WORKERS' COMPENSATION employment — notional worker — rural work timber felling — whether legal error in finding of employment — sufficiency of "control test" whether sufficient but not necessary. Connelly v Wells (1993) 55 IR 73 (CA) applied. PRACTICE AND PROCEDURE - appeal limited to point of law - need to avoid artificial or unduly pernickety approach need to consider reasons in entirety. EMPLOYMENT - employee/employer relationship - indicia of - "control test" whether necessary - whether sufficient. WORKERS' COMPENSATION - employment - whether contract of service - rural work - whether contractor deemed to be "worker" - applicable test judge of Compensation Court (Thompson CCJ) applies "controls test" whether legal error shown in appeal limited to point of law - whether necessary to consider entirety of relationship - whether "controls test" constituted an unduly narrow legal criterion occasioning legal error susceptible to correction ki: (1) The question of the control by a putative employer of a worker and the extent and features of such control remain important indicia of the relationship of employment. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Connelly v Wells (1993) 55 IR 73 (NSWCA); Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 (NSWCA) applied; (2) Whether control may be a sufficient but not a necessary test for employment reserved to a case where it is necessary to decide the point; (3) Upon a fair reading of the reasons of the primary judge, he had given consideration to the entirety of the relationship as disclosed in the evidence and no error of law was shown. Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 (CA); Mahoney v Industrial Registrar of New South Wales and Anor (1986) 8 NSWLR 1 (CA) applied. PRACTICE AND PROCEDURE - appeal - error of law - application of inaccurate legal test - need to avoid excessively pernickety or artificial approaches - need to consider suggested error in context of entire reasons. EMPLOYMENT - "worker" - whether employee or independent contractor - workers' compensation proceedings - appeal - rural worker injured when felling timber - whether employed by contractor entitling worker to recovery from principal - held: Employment established - legal error not shown. Articulate Restorations v Crawford (1994) S7 IR 371 (NSWCA) applied. Compensation Court Act, 1984, s32. Workers' Compensation Act, 1926 s6(5)(a). Workers Compensation Act 1987, Schedule 1 CL3(1) and CL3(2). ORDERS Appeal dismissed with costs. Kirby ACJ In Lee Ting Sang v Chung Chi-Keung and Anor [1990] 2 AC 374 (PC) at 385, Lord Griffiths, delivering the judgment of the Privy Council, said: "".. whether or not a person is employed under a contract of service or, to state the question in modern language, under a contract of employment... will depend upon the evaluation of many facts and there will be many borderline cases in 2 UNREPORTED JUDGMENTS which similarly instructed minds may come to different conclusions. It is in such situations that an appeal court must not interfere and it is in this sense that the decision is said to be one of fact". His Lordship went on to acknowledge that, in proper cases, the appellate court "must not abdicate its responsibility". It was that responsibility to which the appellant appealed in this case. Courts have recently had to consider a number of "borderline" cases involving disputed characterisations of relationships between alleged employers and workers. See eg Pitcher v Langford, Court of Appeal (NSW), unreported, 19 February 1991; [1991] NSWJB 36; Connelly v Wells (1993) 55 IR 73 (NSWCA) and Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 (NSWCA). The appellant's task in the present case was made more difficult because it was confined to challenging the award of the primary judge (Thompson CCJ) on a question of law only. A TIMBER WORKER IS KILLED WHILST WORKING Mrs Mary Yarnold (the first respondent) is the widow of the late Mr Peter Yarnold (the deceased). The deceased died on 19 September 1988 whilst working as a timber cutter in what is called a compartment of the Tamban State Forest. The deceased had been engaged by Mr Robert Anderson (formerly the third respondent) to carry out the timber-cutting work. At the time, Mr Robert Anderson was aged seventy-eight years. He had been working in the timber industry all his life. It was proved, at the hearing of the appeal, that since the subject award was entered, Mr Robert Anderson died. His solicitors indicated that his widow had no wish to take part in the proceedings. All parties agreed that the appeal could proceed notwithstanding the absence of Mr Anderson's legal personal representative. At all relevant times, contracts to supply timber from the Forest existed between Mr Robert Anderson and two timber companies, namely Veneer and Timber Products Pty Ltd (the appellant), and Newee Creek Sawmill Pty Ltd (Newee). The latter company was the second respondent in the proceedings in the Compensation Court. On the day he was killed, the deceased was cutting a tree suitable for production of veneer which was to be supplied to the appellant. None of his work on that day was connected with Newee. An award was made in its favour in the Compensation Court. That award was not challenged by any party to the appeal. Newee therefore took no part in the appeal. It is not necessary to detail the circumstances in which Thompson CCJ found that the deceased was killed. It is enough to say that it was common ground that it was work involving the felling of trees. As I shall show, such work is by Schedule 1, CL3(1)(b) part of specified varieties of "rural work" attracting special provisions for notional employment to attach obligations to notional employees under the Workers Compensation Act 1987 (the Act). Mr Robert Anderson was not insured for the purposes of the Act. Following the death of the deceased, his widow brought a claim on her own behalf, and on behalf of two children of her marriage to the deceased who were wholly dependent upon him for support. There was no dispute concerning marriage or dependency. The dispute was whether the widow and the children could recover compensation and, if so, against whom. The principal contest at the trial was between WorkCover Authority of New South Wales (formerly the State Compensation Board) representing ie uninsured liability scheme established by the Act, and the appellant. The Authority was URJ VENEER AND TIMBER PRODUCTS PTY LTD v YARNOLD (Kirby ACJ) 3 liable to pay compensation to the widow and children in place of Mr Robert Anderson if he were liable because he was uninsured. The Authority would then have entitlements (theoretical only in this case) to recover any such payments from Mr Anderson. In the event that no relationship of employment could be established, giving rise to entitlements under the Act, the widow and children would fail. See eg Forbes v Harris [1967] WCR 311. THE RELEVANT PROVISIONS OF THE ACT The appellant was insured under the Act. The widow was not particularly concerned as to whether she recovered from the appellant or from the Authority in place of Mr Robert Anderson. Obviously, it was in the interests of Mr Robert Anderson in his lifetime to endeavour to shift liability to the appellant to avoid a contingent obligation, at some future time, to reimburse the Authority. The deceased had no direct relationship with the appellant. The way in which the endeavour was made to bring his dependants' claim against the appellant involves a consideration of Schedule 1, c 13 of the Act. This is ie successor to the former s6(5)(a) of the Workers' Compensation Act 1926. The relevant provisions of the clause titled "Rural Work" are: "3(1) This clause applies to the following work: (a) the work of supplying timber, if the timber is obtained, or is to be obtained, from trees felled, or to be felled, by a contract (whether the trees are the property of the principal or the contractor or any other person); (b) the work of felling or ringbarking trees... (2) If - (a) any person (in this clause referred to as 'the principal') in the course of or for the purposes of the person's trade or business enters into a contract, agreement or arrangement with any other person (in this clause referred to as 'the contractor') under which the contractor agrees to carry out work to which this clause applies; and (b) the contractor - (i) does not either sublet any part of the work to be carried out, or employ a worker; or (ii) (although either subletting part of the work or employing a worker) actually performs some part of the work himself or herself the contractor AND ANY WORKER SO EMPLOYED BY THE CONTRACTOR shall, for the purposes of this Act, be deemed to be workers employed by the principal, and a worker so employed by the contractor shall, for the purposes of this Act, other than this clause, be deemed nor to be a worker employed by the contractor". (emphasis added). It was common ground that, at the relevant time, Mr Robert Anderson himself actually performed some part of the work to supply timber to the appellant. It was also agreed that CL3(2)(b)(1) had no application to the facts of the case, either because Mr Robert Anderson engaged his son, Mr Terry Anderson, to perform part of the work, or (as found) because he employed a worker, namely the deceased. In this way, the claim of the widow under the Act rested upon CL3(2)(b)(2) in Schedule | to the Act. The question was whether the deceased was a "worker so employed by the contractor". If he was, he was deemed by the sub-paragraph to be a worker employed by the principal (ie the appellant), entitling the widow to recover compensation from it. 4 UNREPORTED JUDGMENTS Counsel for the appellant accepted that the foregoing statutory provisions were provided, as their predecessors had been, to afford special protection to workers in rural work. Specifically they were enacted to protect those workers engaged in the felling of timber. By reason of the nature of the timber industry, the organisation of its employment and the securing and maintenance of insurance within it, Parliament has seen fit to provide special protections to workers so engaged. By shifting the obligations to principals, such as the appellant and Newee, Parliament has instituted a scheme to ensure, in the ordinary case, that the workers of contractors engaged in the often dangerous work of timber felling will ordinarily have an effective insurance cover for entitlements under the Act. To the extent that such cover is provided, the Authority is spared liability that might otherwise exist. To the extent that notional employment extends the concept of a contract of service ordinarily understood, workers in this class of rural work were provided with effective protection which might otherwise be missing if they were forced to depend upon their "immediate employer'. Experience had taught that such "employers" were often, as in Mr Robert Anderson's case, uninsured. It would always be open to a principal, such as the appellant, to check the insurance position of contractors engaged to provide timber so as to ensure that they were separately covered for risk under the Act in respect of any workers engaged by them. Ordinarily, a principal such as the appellant would be in a better position to do this than rural workers such as the deceased. There was no real dispute concerning the objects of the statutory provisions. The dispute concerned their application to the facts of this case. REASONS OF THE PRIMARY JUDGE Thompson CCJ recounted the evidence of Mr Terry Anderson, which he accepted. He had been working for his father, Mr Robert Anderson, for twenty years. The deceased had worked for Mr Robert Anderson once during 1987. He recommenced his association with Mr Robert Anderson in about June or July 1988 working in the "compartment" assigned to Mr Robert Anderson which was being worked by him and by Mr Terry Anderson. The latter worked with the deceased until the day of his death. According to the judge: "The witness said on the day the deceased died he went into the bush to fell a log which would make up the remainder of the load for [the appellant]. This timber was called veneer logs, and was better quality than the timber sent to Newee.. the witness said the deceased was cutting a veneer log from a first class tree... the witness discovered the deceased's body in the bush". Thompson CCJ recorded that counsel had "suggested" that the only issue in the case was "who is to pay compensation to the widow and children". In that respect, it would appear that the Authority presented a narrower issue at the trial than it initially sought to do in this Court. After quoting CL3(2) in Schedule | of the Act, his Honour went on in the passage that has been criticised by the appellant: "Tf he is a direct employee of Mr Anderson, the third respondent, and if Mr Anderson performed part of the work himself as set out in the Act, then that employee can be held to be a deemed employee of either [the appellant] or Newee or both of them. The evidence in this case has been set out quite clearly and in my opinion the deceased on 19th September 1988 was a direct employee of Mr RA Anderson, the third respondent. Using the control tests I am satisfied, on the evidence, that Mr RA Anderson had control over the deceased on 19 December 1988... I do not wish to enumerate all the controls exercised by the third respondent over the URJ VENEER AND TIMBER PRODUCTS PTY LTD v YARNOLD (Kirby ACJ) 5 deceased as set out in the transcript and earlier in this judgment. I am satisfied that Mr RA Anderson, the third respondent, was supplying timber to the first and second respondents. I am satisfied on the evidence that the deceased was the direct employee of RA Anderson... ". His Honour then entered the award against the appellant, and dismissed the claims against Mr Anderson, the Authority and Newee. It is against that award that the appellant has appealed to this Court. THE APPEAL IS LIMITED TO A QUESTION OF LAW The appeal is brought pursuant to the Compensation Court Act 1984, s32. The proceedings in the Compensation Court in this case were commenced by the filing of the application for determination on 21 June 1989. The law governing the scope of appeals to this Court from the Compensation Court was altered by the Compensation Court (Amendment) Act 1989. Before that amendment, appeals from the Compensation Court were limited, relevantly, to errors in point of law. After the amendment, in most cases challenges are now available against factual findings, as well as for legal error. However, the availability of the larger facility of appellate review depends upon the commencement of the proceedings in the Compensation Court. Sec Schedule 4, CL5(1) to the Compensation Court Act 1984. Cf Commercial Union Workers' Compensation NSW Ltd v Smith, Court of Appeal (NSW), unreported, 19 May 1994 [1994] NSWJB 44. Having regard to the commencement of these proceedings, it was agreed by all parties that this appeal was confined to correcting errors of law. This fact significantly limits the role of this Court in the appeal. The limitation was explained by this Court in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA). Glass JA, with the concurrence of Samuels JA, stated: "Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound, as this would not amount to an error of law... A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself; ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact, but not with respect to primary findings of fact, such as whether the applicant suffered injury on a particular date. Further, an ultimate finding of fact, even in the absence of a misdirection, may reveal an error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made. Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Cas Light Co v Valuer-Generall (1940) 40 SR (NSW) 126 at 138". I took a different view in Azzopardi. I remain unconvinced that perverse findings of fact, quite contrary to the evidence, and such as no reasonable judicial decision-maker could properly make, disclose no error of law. Cf Edwards v Bairstow and Anor (1986) AC 14 (HL), 36; Mahony v Industrial Registrar of New South Wales and Anor (1986) 18 NSWLR 1 (CA), 3. One day it may be appropriate to reconsider, in another context, the holding in Azzopardi. However, it should not be reconsidered in the context of workers' compensation law, because on the basis of the correctness of the Court's decision, the Act was expressly changed by Parliament to permit factual challenges to be made. The 6 UNREPORTED JUDGMENTS appellant did not seek to challenge Azzopardi in this case. Instead, the complaint of the appellant was advanced in the alternative: (1) That the primary judge had simply misdirected himself in law as to the applicable test in determining whether an employment relationship was established between the deceased and Mr Robert Anderson; or (2) That the learned judge had, within the exception acknowledged in Azzopardi, reached ultimate findings of fact which revealed an error of law upon the basis that the primary facts found were necessarily within or outside a statutory description but a contrary decision had been made. Put shortly, the appellant's complaint was therefore this. The learned judge had confined himself to the "control tests". By adopting only the test of "control" of Mr Robert Anderson over the deceased, he had wrongly focussed his attention too narrowly upon one element only of the indications of an employment relationship. Instead, he should have looked at the entire relationship between the parties. He should have sought to find its "essence". By concentrating solely on "control" he had misdirected himself in law. This had led him to reach a conclusion which was contrary to that to which the primary facts would otherwise have required by a correct application of the statute. ARGUMENT OF THE PARTIES In support of its argument, the appellant relied upon the well known passages in the judgments of the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. In that case, at 24, Mason J reflected upon the development of the law from a time when "control" was regarded virtually as the sole or governing criteria, to the present time when it was not, also, seen as sufficient: "\.. the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it as merely one of a number of indicia which must be considered in the determination of that question... Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee". Mason J returned to the question at 28f: "The traditional formulation, though attended with some complications in its application to a diverse range of factual circumstances... nevertheless has had a long history of judicial acceptance. True it is that criticisms have been made of it. It is said that a test which places emphasis on control is more suited to the social conditions of earlier times in which a person engaging another to perform work could, and did, exercise closer and more direct supervision than is possible today. As it is said that in modern post-industrial society, technological developments have meant that a person so engaged often exercises a degree of skill and expertise inconsistent with the retention of effective control by the person who engages him. All this may be readily acknowledged, but the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it 'so far as there is scope for it' even if it be 'only in incidental or collateral matters' Zuijs v Worth Bros Pty Ltd (1953) 93 CLR at 571. FURTHERMORE CONTROL IS NOT NOW REGARDED AS THE ONLY RELEVANT FACTOR. RATHER IT IS THE TOTALITY OF THE RELATIONSHIP BETWEEN THE PARTIES WHICH MUST BE CONSIDERED. (emphasis added). URJ VENEER AND TIMBER PRODUCTS PTY LTD v YARNOLD (Kirby ACJ) 7 The appellant stressed the last words in the cited passage. It urged that this demonstrated a formulation of the requirement for the employment relationship which broadened the focus for judicial attention in a way which Thompson CCJ had ignored. In their joint judgment in Stevens, Wilson and Dawson JJ (at 36) said: "Tn many, if not most, cases it is still appropriate to apply the control test in the first instance because it remains the surest guide of whether a person is contracting independently or serving as an employee. That is not now a sufficient or even an appropriate test in its traditional form in all cases because in modern conditions a person may exercise personal skills so as to prevent control over the manner of doing his work and yet nevertheless be a servant. This has led to the observation that it is the right to control rather than the actual exercise which is the important thing... but in the circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which the work is performed for another. This was made clear in Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539 at 552, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service of what in essence is an independent contract". From these passages in Stevens, and calling in aid the earlier remarks in Queensland Stations, the appellant submitted that the passages in the reasons of Thompson CCJ, cited above, showed an unduly narrow application of a now superseded legal test. In an appeal limited to a point of law, this Court should correct the error of law. It should set aside the award derived from the application of the unduly narrow legal test. It should send the matter back to the Compensation Court for reconsideration of the facts, applying the "modem", "wider" test. Although Thompson CCJ has retired since the determination of the case, the Compensation Court remains. See Wentworth v Rogers [No 3] (1986) 6 NSWLR 642 (CA), 649. It could reconsider the facts and apply to them the wider criteria now acknowledged both by the High Court in Stevens and by this Court in a series of cases including Connelly and Articulate Restorations. So went the basic arguments for the appellant. The Authority took the principal running to defend the award. It argued that nothing in Stevens, or in later authority in this Court, had denied the critical importance of control as a test for the existence of an employment relationship. On the contrary, control remains at the heart of the master/servant, employer/employee relationship. By reason of changes in work, and in society, the fact or even the right to control might not now be proved or even provable, yet the relationship might still exist. But if it were proved, it would demonstrate the relationship. In short "control" was sufficient, but not necessary, to establish the employment relationship. Having been found to exist in the relationship between Mr Robert Anderson and the deceased, it was sufficient to establish the direct employment which his Honour had found and given effect by the award. In support of this proposition, the Authority referred to some remarks of mine in Articulate Restorations. at 379f: "Tn a sense the existence of indicia of the ultimate right of control and its exercise is more telling than the existence of indicia of independence. This is because a high measure of independence of skilled workers is now commonplace in the workforce. Thus the existence of flexible hours, a large discretion in the performance of work, a lack of effective real control and supervision may not, in a particular case, be determinative. In today's employment market, these features 8 UNREPORTED JUDGMENTS of the relationship between the putative employer and worker may be neutral as to the nature of the relationship which was established between them. But where there are clear indications of the RIGHT of control, and especially where there are indications that the right of ultimate control HAS ACTUALLY BEEN ASSERTED, a Court may more readily draw the inference that a contract of service (employment) has been established. Where it is, a contract for services (independent contractor) will have been excluded". (emphasis added). I see force in the argument for the Authority. I remain of the view which I expressed in Articulate Restorations. However, in the circumstances of this case, I do not believe that it is necessary to determine the point. THE JUDGE DID CONSIDER THE ENTIRE RELATIONSHIP As with most cases of this kind, a great deal of attention at the trial was devoted to the examination of the facts surrounding the relationship between the deceased and Mr Anderson. Some of those facts tended to support a conclusion that the relationship was not one of employment. Thus it was proved: (1) That the deceased was paid by cubic metre of wood, and not according to time, as is usual in employment. However, it was also shown that this was in accordance with the practice of the industry; and (2) That at the time of this death, the deceased was using his own new chain saw. However, it was also shown that on previous occasions he had used Mr Robert Anderson's chain saw. As against this evidence, a great deal of evidence was led which supported a relationship of employment: (1) The deceased was directed by Mr Robert Anderson as to where he should go to cut the timber to which he was assigned by him; (2) It was accepted that the deceased's services would be terminated by Mr Robert Anderson if he misbehaved or engaged in felling practices which were unsafe; (3) Mr Robert Anderson would telephone the deceased when he wanted him to work, and agreed that he would supply the equipment ordinarily to be used by the deceased for such work; (4) Mr Robert Anderson supplied transport to the forest when the deceased did not have transport of his own; (5) On the day before his death, the deceased asked Mr Robert Anderson's permission to arrive late at the site on the following day, and the latter agreed to this request; (6) Mr Robert Anderson paid a licence fee in respect of the "compartment" of timber. Pursuant to this licence, only he, and persons authorised by him, could take timber out of the "compartment"; (7) When he was working on the day of his death, the deceased was cutting a particular tree which had been marked for him as veneer timber, either by Mr Robert Anderson or his son; (8) There were also various admissions by Mr Robert Anderson, and statements by the son, that the deceased was an employee, although account would have to be taken, in this regard, of Mr Robert Anderson's interest to deflect liability to the appellant. There was therefore evidence which would have justified the conclusion to which Thompson CCJ came. In the present appeal this Court is not involved in an evaluation of the facts. Its sole function is to decide, upon the complaints of the appellant, whether the reasons of Thompson CCJ displayed relevant legal error. URJ VENEER AND TIMBER PRODUCTS PTY LTD v YARNOLD (Rolfe AJA) 9 When those reasons are read in their entirety, I do not believe that they do. The reference by his Honour to the "control tests" must be understood in the context in which the reference appears. This is an opinion in which Thompson CCJ had adumbrated the various indicia of the relationship between the deceased and Mr Robert Anderson. Thus, his reasons refer to the previous employment and its duration; the mode of payment; the allocation of work by Mr Robert Anderson; the use of equipment; the extent of directions given; the right to terminate; the occasional supply of transport; the request for permission for late arrival; the assignment of the particular tree; and other matters. If any other indicium of importance was not listed, Thompson CCJ's reasons refer to the transcript, and by inference incorporate it. Although this Court must be alert to correct any error of law revealed in judicial reasons, and to require determinations affecting the rights of parties to be decided by application of the correct legal principles, it has repeatedly stated that it will not search judicial reasons on the chance that a phrase, expressed with less felicity than it might, necessarily betrays a legal mistake demanding correction. In a specialised court, such as the Compensation Court, a high measure of legal accuracy is to be expected. But it would be a misuse of this Court's responsibility to superintend the awards of the Compensation Court, and to guard against legal error, to take a phrase out of context, and to find legal error where a fair reading of the entirety of the judge's reasons contradicts that conclusion. Even assuming that the "control test" is not now the sole criterion to be applied in the determination of the existence of a contract of service, and that the attention of the decision-maker must be addressed to the "totality of the relationship", and the characterisation of "its essence", there is more than ample evidence in the reasons of Thompson CCJ to demonstrate that this is the approach which his Honour took. In so far as the evidence at the trial described the detail of the relationship between the worker and Mr Robert Anderson, Thompson CCJ reviewed that evidence. I therefore take his Honour's reference to the "control test" to be a shorthand expression for "the tests of the existence of employment". To construe the phrase otherwise would, in the context, be unduly artificial and pernickety. CONCLUSION AND ORDERS Therefore, accepting for the purpose of the appeal, that to judge the existence of an employment relationship by reference to control alone may amount to legal error, I do not believe that that error is shown in the reasons given by Thompson CCJ to support the award in this case. Within the four corners of the appellant's case, it has failed to show the error of which it complains. I would propose that the appeal be dismissed with costs. Rolfe AJA I have had the advantage of reading in draft form the judgment of Kirby ACJ. I agree with the orders proposed by his Honour and, generally, with his reasons. It is unnecessary, for the resolution of this appeal, to consider the correctness of Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. In those circumstances I would prefer to reserve any further consideration of Azzopardi until the decision of an appeal requires it. Whilst it is appropriate to look at all the features of the relationship to determine its true legal characterisation the "control test" remains, in my opinion, of significant importance, and if control be established it will require powerful countervailing matters making up the relationship to prevent a finding of employer/employee being made. In addition to the authorities to which Kirby 10 UNREPORTED JUDGMENTS ACJ has referred I note Boral Roof Tiles Ltd v O'Brien: GIO Australia Ltd and Anor (Court of Appeal - 2 December 1994 - as yet unreported) per Sheller JA at 18: "One of the indicia which was traditionally regarded as important was the 5 degree of control that the person who engaged another to perform work could exercise over the person so engaged. This is often but not always decisive." Bainton AJJA I have had the advantage of reading in its draft form the judgment of Kirby ACJ. 10 I agree with that judgment. Appeal dismissed with costs. Counsel for the Appellant: CC Gee QC/KJ O'Grady 15 Counsel for the First Respondent (Widow): J Curtis Counsel for the Second Respondent (Anderson): No appearance (deceased) Counsel for the Third Respondent: D Deakin QC/D Ebstein (WorkCover 20 Authority) Solicitors for the Appellant: Walsh James Solicitors for the First Respondent (Widow): Wyburn and Associates 25 ~~ Solicitors for the Second Respondent (Anderson): No appearance Solicitors for the Third Respondent: Solicitors for WorkCover Authority (WorkCover Authority)