MOON RECRUITMENT PTY LTD -v- HORNE [2026] WASCA 80

[2026] WASCA 80 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOON RECRUITMENT PTY LTD -v- HORNE [2026] WASCA 80 CORAM : THOMSON P MITCHELL JA SEAWARD JA HEARD : 6 MAY 2026 DELIVERED : 17 JUNE 2026 FILE NO/S : CACV 30 of 2025 BETWEEN : MOON RECRUITMENT PTY LTD Appellant AND ADAM HORNE First Respondent EXECOM SOFTWARE PTY LTD T/AS EXECOM PERSONNEL Second Respondent FILE NO/S : CACV 31 of 2025 BETWEEN : MOON RECRUITMENT PTY LTD Appellant AND ADAM HORNE First Respondent -- 1 of 28 -- [2026] WASCA 80 Page 2 EXECOM SOFTWARE PTY LTD T/AS EXECOM PERSONNEL Second Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : SWEENEY DCJ File Number : APP 65 of 2022 Catchwords: Contract - Identity of contracting parties - Objective theory of contract - One labour hire company acting as an agent for another labour hire company Workers' compensation - Employer - Labour hire companies - Identity of employer as between two labour hire companies - Claim for reimbursement of payment of compensation Legislation: Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 18(1), s 71, s 254 Workers Compensation and Injury Management Act 2023 (WA), s 393 Result: Leave to appeal refused Appeal dismissed Category: B -- 2 of 28 -- [2026] WASCA 80 Page 3 Representation: CACV 30 of 2025 Counsel: Appellant : G R Hancy First Respondent : R D McCabe Second Respondent : N F Morrissey & L Bayly Solicitors: Appellant : Hall & Wilcox (Perth) First Respondent : Foyle Legal Second Respondent : HWL Ebsworth Lawyers (Perth) CACV 31 of 2025 Counsel: Appellant : G R Hancy First Respondent : R D McCabe Second Respondent : N F Morrissey & L Bayly Solicitors: Appellant : Hall & Wilcox (Perth) First Respondent : Foyle Legal Second Respondent : HWL Ebsworth Lawyers (Perth) Case(s) referred to in decision(s): Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295; (2024) 335 IR 400 Mills v Walsh [2022] NSWCA 255 Morgan v Roman Catholic Archbishop of Perth [2026] WASCA 62 Nudrill Pty Ltd v La Rosa [2010] WASCA 158 Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Resilient Investment Group Pty Ltd v Barnet [2023] NSWCA 118; (2023) 111 NSWLR 446 Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603 Wilden Pty Ltd v Greenco Pty Ltd (Unreported, WASC, Library No 950322, 22 June 1995) -- 3 of 28 -- [2026] WASCA 80 Page 4 Zamora v OCS Services Pty Ltd [2025] WASCA 117 -- 4 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 5 JUDGMENT OF THE COURT: 1 The critical issue in this consolidated appeal is whether, by 2 September 2019, the first respondent (Horne) had entered a contract of employment with the appellant (Moon Recruitment) or with the second respondent (Execom). The date of 2 September 2019 is significant as it is when Horne was injured at work. Both Moon Recruitment and Execom are labour hire firms. There is no dispute that Horne had entered a contract of employment with one or the other of them. 2 The resolution of this issue determines whether Moon Recruitment or Execom was liable to make payments of workers' compensation to Horne pursuant to s 18(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (1981 Act). Litigation history and identity of parties Arbitration 3 After Horne was injured at work on 2 September 2019, Execom made payments of workers' compensation to Horne. Execom subsequently applied to an arbitrator for an order, pursuant to s 71 of the 1981 Act, that 'Moon Recruitment' reimburse it for those payments. Horne also made a separate application to the arbitrator for an order that payments of workers' compensation and statutory expenses should be made by whichever party was found liable in Execom's application. The respondents to Horne's application were 'Kerrie Moon t/as Moon Recruitment' and Execom. 4 On Execom's application, the arbitrator ordered that 'Moon Recruitment' reimburse Execom all compensation paid by Execom to Horne under the 1981 Act. On Horne's application, the arbitrator ordered that the first respondent to that application, namely 'Kerrie Moon t/as Moon Recruitment', should make weekly payments of compensation, and payments of statutory expenses, to Horne. The arbitrator did so on the basis that 'Moon Recruitment' rather than Execom was Horne's employer at the time of the injury on 2 September 2019. The appeals to the District Court 5 The unsuccessful parties then sought leave to appeal against those orders to the District Court of Western Australia. -- 5 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 6 6 Procedurally, Sweeney DCJ (as her Honour then was) made orders upon the basis that the correct entity had erroneously been overlooked and had not been properly joined. Accordingly, in each matter, Sweeney DCJ made orders amending the reference to 'Kerrie Moon t/as Moon Recruitment' and 'Moon Recruitment' in each of the applications before the arbitrator, and the orders made by the arbitrator, to refer to the entity which is now the appellant, ie Moon Recruitment Pty Ltd.1 7 Substantively, Sweeney DCJ refused leave to appeal in each appeal, as she did not consider that there was any error of law demonstrated.2 Her Honour agreed with the arbitrator's conclusion as to the identity of Horne's employer on 2 September 2019. The appeal to this court 8 Moon Recruitment has now sought leave to appeal to this court in respect of each of Execom's application and Horne's application. These appeals have been consolidated. 9 By its grounds of appeal, Moon Recruitment in effect contends that Sweeney DCJ erred in failing to hold that Execom, rather than Moon Recruitment, was Horne's employer at the time of his injury on 2 September 2019. Moon Recruitment's grounds of appeal contend that Sweeney DCJ made various methodological errors in reaching the contrary conclusion. 10 Sweeney DCJ, sitting as an appellate judge in the District Court, did not hear any evidence or herself make any findings as to the primary facts. As explained below, the parties to a contract are identified according to the objective theory of contract. This court is in as good a position to determine the identity of the contracting parties as Sweeney DCJ. It is common ground that this court is to apply the correctness standard in determining that question, without any deference to the views adopted by her Honour. It is therefore unnecessary to consider whether Sweeney DCJ made any of the alleged methodological errors, or to set out and deal with the grounds of appeal alleging those errors. 1 BAB 1, 10. 2 Moon Recruitment Pty Ltd v Execom Software Pty Ltd t/as Execom Personnel [2025] WADC 18 [368] - [372]; Kerrie Moon t/as Moon Recruitment v Execom Software Pty Ltd t/as Execom Personnel [2025] WADC 20 [1] - [2]. -- 6 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 7 11 Rather, the critical issue is whether Moon Recruitment or Execom was the party to the employment contract with Horne. We turn to consider that issue. The agreement to provide payroll services 12 In 2015, Moon Recruitment entered an agreement with Execom for Execom to provide payroll services to Moon Recruitment. Moon Recruitment agreed to pay Execom for the provision of such services.3 The genesis of this arrangement was a desire for Moon Recruitment to obtain payroll services which it did not have the financial capacity to perform itself, in return for a fee.4 13 Execom would send paperwork to the worker selected by Moon Recruitment for an employment engagement, including a contract, Execom bank details, a superannuation form and an ATO form. Execom would have no relationship with the host employer, and would not stipulate where, how or for whom the worker worked. Execom would pay the workers their wages, and then seek reimbursement for these from Moon Recruitment, plus a management fee for maintaining workers' compensation insurance.5 Execom had nothing to do with where, how or for whom the workers worked and had no relationship with the clients.6 14 The material terms of this agreement (2015 Agreement) were as follows: THIS AGREEMENT is made on the date in the Schedule BETWEEN: EXECOM PERSONNEL of [address] ('EXECOM PERSONNEL') of the one part, and MOON RECRUITMENT of [address] whose particulars are set out in the Schedule (the 'CLIENT') of the other part. WHEREBY IT IS AGREED as follows: 1. MOON RECRUITMENT shall, for the period set out in the Schedule starting from the Commencement date, make available to EXECOM PERSONNEL the named Contractor for the services there set out. 3 GAB 127 - 129 (contract between Execom and Moon Recruitment). The 2015 Agreement seemed to relate to a particular client (Austal): see 'Special Requirements' section in the Schedule. However, Moon Recruitment and Execom seem to have regarded it as having continuing effect. Eg see BAB 129 - 133 (arbitrator's reasons [50] - [60]). 4 BAB 121, 129 - 130 (arbitrator's reasons [6], [50(f)] - [50(g)]). 5 BAB 129 - 130 (arbitrator's reasons [50]). 6 BAB 103 (arbitrator's reasons [50(j)] - [50(n)], [56(d)]). -- 7 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 8 2. MOON RECRUITMENT hereby agrees to pay EXECOM PERSONNEL for payroll services of the Contractor at the rate set out in the Schedule. … MOON RECRUITMENT further agrees to pay for all reasonable client approved out of pocket expenses incurrent in the performance of the services … 3. EXECOM PERSONNEL charges Goods and Services Tax of 10% on the component of any invoice that relates to post 1 July 2000. This relates primarily to service type contracts where a component of the contract may be delivered / supplied by EXECOM PERSONNEL after 1 July 2000. 4. MOON RECRUITMENT hereby acknowledges: a. That the Contractor is an independent Contractor and is not a Direct Employee, servant or agent of EXECOM PERSONNEL, and that EXECOM PERSONNEL exercises no control or direction over the Contractor; and b. That MOON RECRUITMENT has engaged the services of the Contractor upon MOON RECRUITMENT's and the customer's own examination and interview of the Contractor; and c. That EXECOM PERSONNEL shall not be liable in any manner whatsoever for any loss or damage of any nature that may be suffered by MOON RECRUITMENT, its employees, customers, clients or another person as a result of the Contractor's services rendered hereunder. 5. … 6. MOON RECRUITMENT warrants that the Contractor possesses all qualifications and skills appropriate for the provision of services. This includes, but is not limited to, necessary qualifications or training or compliance with the requirements of any statute, Authority, and relevant professional or trade organisations. 7. MOON RECRUITMENT agrees that the contractor: • Observe and comply with the policies, customs and practices established by the Customer/Project from time to time. • Obey all lawful directions of the Customer/Project as advised from time to time. -- 8 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 9 • Perform any work for the Customer with reasonable care, skill and diligence; 8 … 9. EXECOM PERSONNEL shall arrange and maintain workers compensation insurance… EXECOM PERSONNEL will arrange workers compensation insurance and cost to the client. 10. MOON RECRUITMENT shall arrange and maintain Public Liability and Professional Indemnity Insurance. Such Insurance shall cover liability of contractors whilst engaged solely by EXECOM PERSONNEL. 11. MOON RECRUITMENT acknowledges its responsibility and agrees to pay Payroll Tax … … SCHEDULE CLIENT: MOON RECRUITMENT CONTRACTOR: Contractor name or nominee acceptable to the client. SERVICES: Position … COMMENCEMENT DATE: EXPIRY DATE: PAYMENT: An hourly rate of $ Client rate + GST for all hours The employment of Horne 15 In July 2019, Moon Recruitment proposed to a business called Echo Marine Group (Echo Marine) to provide labour hire services to it. This was accepted by Echo Marine on 15 July 2019.7 Execom was not a party to this agreement. Job advertisement 16 Pursuant to this arrangement, on 21 August 2019, Moon Recruitment posted an advertisement on a job website seeking fabricators with light gauge steel or aluminium experience for a 7 GAB 130 - 135 (Moon Recruitment Labour Hire Proposal for Echo Marine Group). -- 9 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 10 three-month contract (with the possibility of extension) for various boat building projects which Echo Marine was undertaking. The advertisement stated that there would be a Monday to Thursday roster for 10 hours per day, that the position would pay a 'competitive hourly industry rate' and that there would be penalty rates after 40 hours.8 17 Set out in full, the substantive part of the advertisement was as follows:9 Reference: 2970689 Short Description: We require Fabricators with light gauge steel or aluminium experience Bullet Points: Boat building projects 3 month contract based in Henderson Full Job Description: Our client who is building a large ferry and patrol boats require Fabricators and 2nd Class Fabricators to join their Fabrication Department, located at their Henderson facility. This is a 3 month contract with potential for extension, immediate start. You will [require]: • Trade qualification or relevant experience within the Fabrication industry sector • Ship building experience (Desirable not essential) • Driven, hardworking & enthusiastic attitude • Your own reliable transport & drivers licence (Public transport is limited in this area) • Flexibility to work overtime (if required) • Current Australian working rights • You must be able to pass a Drug/Alcohol screen 8 GAB 160. 9 GAB 160. -- 10 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 11 This opportunity will reward you with: • Monday to Thursday roster 10 hours per day • Competitive industry hourly rate • Penalty rates after 40 hours If you believe you have the relevant skills and experience, please apply via the link below 18 Horne responded to the advertisement, about a week before he started work on 2 September 2019. Kerrie Moon (the principal of Moon Recruitment) conducted a telephone interview with Horne. She checked Horne's references, and arranged for drug and alcohol testing. She sent his curriculum vitae to Echo Marine, and discussed whether he was suitable for the role. She arranged for Horne to have an interview with Echo Marine and to do a welding test on site. She supplied Horne with high visibility long sleeve shirts branded by Moon Recruitment. Horne supplied his own welding helmet, earmuffs, hammer, files, vice grip and other small tools. Echo Marine supplied Horne with safety gear, gloves, a grinder, welder and all consumables.10 19 At this stage, Horne was unaware of anything to do with Execom, and did not recall ever speaking to anyone from Execom.11 Emails of 30 August 2019 20 At 8.22 am on Friday 30 August 2019, Kerrie Moon emailed Deborah Woodman, who was the general manager of Execom. This was in the following terms, under the subject line 'Adam Horne - Fabricator Welder - Echo Marine Group':12 Hi Deborah Austal Ships would like to engage Adam Horne, please see details below: Client - Echo Marine Group Candidate - Adam Horne Mobile number - [XXXX] Email - [XXXX] 10 BAB 132 - 138 (arbitrator's reasons [56] - [69]). 11 BAB 137 (arbitrator's reasons [68(g)] - [68(h)]). 12 District Court appeal book 73 - 74. -- 11 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 12 Position - Fabricator Welder Reporting to - Brian Weaver - Supervisor Start date - Monday 2nd September 2019 Start time first day - 7.00am Standard working hours - Monday to Thursday - 6.00am - 4.30pm with a 30 minute lunch break Employment - Casual Term - 3 months Notice period - 1 week Hourly rate - Base $32.00 + 9.5% super + 25% loading + = $43.80 Normal hours - Monday to Saturday ordinary hrs 40 hours per week, however any hours after 38 ordinary hours are @ 1.5 and Sunday - double time, public holidays - double time and a half Location: Echo Marine Group - 49 Clarence Beach Road, Henderson Please park in the unallocated car park across from the Echo Marine Group complex, then walk down to the gatehouse to sign in, go to reception and ask for Brian Weaver his mobile number is [XXX]. Please wear suitable site PPE (i.e. trousers, closed in shoes / steel capped boots). You'll be provided with a hard hat, safety glasses and a clock card at Reception. Please note that you will need to wear these items whilst walking to & from the Gatehouse to the office at all times. If you've any questions please don't hesitate to contact me. Echo Marine Group are looking forward to seeing you. Can you please add a clause which is subject to DAS, as we are waiting for the GCMS he had been taking [Codeine]. Adam is expecting your call. Thanks Kerrie (original emphasis) 21 The email ends with the statement that 'Adam is expecting your call'. This would suggest that Kerrie Moon had spoken to Horne about -- 12 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 13 being employed at Echo Marine. However, neither Kerrie Moon nor Horne gave evidence of this occurring. 22 In his witness statement, Horne simply said that 'Kerrie Moon contacted me and told me that Echo Marine wanted me to start subject to a blood test for drugs'.13 Under cross-examination before the arbitrator, he said that Kerrie Moon did not tell him anything about Execom, and he only knew of it through the payslips. He said that he 'had no idea it was another company'.14 He said that he thought that it 'was part of Moon Recruitment'.15 23 Kerrie Moon did not mention any conversation in her witness statement about telling Horne that he had been successful.16 She said under cross-examination that she did not remember calling Horne and telling him anything about Execom.17 24 On Friday 30 August 2019, at 9.15 am, Ms Woodman sent an email to Horne with the title 'Contract for Moon Recruitment for Echo Marine Group'. 25 Before sending the email referred to below, Ms Woodman said in her witness statement that she spoke to Horne and advised him that Moon Recruitment had engaged Execom to pay him.18 The arbitrator referred to this in his reasons summarising the evidence contained in Ms Woodman's witness statement.19 However, in his reasons, the arbitrator did not refer to the fact that in oral evidence, under cross-examination, Ms Woodman said that she did not speak to Mr Horne, but rather that when she tried to call him he did not answer and she left a message on his answering service.20 26 Again, Horne could not recall speaking to anyone from Execom, and said he did not know anything about the relationship between Moon Recruitment and Execom.21 27 The email sent by Ms Woodman at 9.15 am began by congratulating Horne on starting at 'Echo Marine Group for Moon 13 BAB 136 (arbitrator's reasons [68]); see also District Court appeal book 119 (statement of Adam Horne (13 August 2021) [6]). 14 GAB 73.44 - 73.50; See also GAB 86.51 - 87.5. 15 GAB 88.51. 16 District Court appeal book 82 - 84 (statement of Kerrie Moon (1 December 2021)). 17 GAB 114.34 - 114.45. 18 District Court appeal book 115 - 116 (statement of Deborah Woodman (12 October 2021) [38]). 19 BAB 130 (arbitrator's reasons [50(p)], [50(q)]). 20 GAB 19.1 - 19.4, 20.40 - 20.42, 26.23 - 26.25. 21 BAB 137 - 138 (arbitrator's reasons [68(g)], [68(h)], [69(c)]). -- 13 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 14 Recruitment' on Monday, 2 September 2019 at 7.00 am. The email said that it attached a 'contract, letter, Personal details, Tax and Super form'. It requested that Horne should 'fill out all the forms and return them to me together with your contract before Monday the 9th September, 2019'.22 In other words, the request was to return the contract and forms after the start date on 2 September 2019. 28 The full email was as follows: Congratulations on your start at Echo Marine Group for Moon Recruitment (subject to a clear DAS) at 49 Clarence Beach Road, Henderson on Monday 2nd September 2019 at 7.00am. Please find attached contract, letter, Personal details, Tax and Super form. Please fill out all the forms and return them to me together with your contract before Monday the 9th September, 2019. Hope you have a good first day and give me a call if you have any queries. Regards, Deborah Deborah Woodman General Manager Execom Personnel ... Excellence in Recruitment (emphasis in italics added) Attachments to Execom's email to Horne 29 The letter attached to the email was on Execom letterhead, and was signed by Deborah Woodman as 'Senior Recruitment Consultant'. It commenced: 'Congratulations on your contract with Execom Personnel subject to a clear DAS'.23 Presumably, DAS meant 'Drug and Alcohol Screening'. It concluded by saying, 'We hope you enjoy working with Execom Personnel at Austal Ships commencing on Monday 2nd September, 2019 at 7.00am'. The reference to Austal Ships appears to be an error, as Horne was to work for Echo Marine. The letter also referred to various attachments being the 'Execom 22 GAB 137. 23 GAB 139. -- 14 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 15 Contract, Personal Details Form, Tax Declaration Form and Superannuation Form'. As well, the letter provided certain financial details such as paydays. 30 The full terms of the letter were as follows:24 Congratulations on your contract with Execom Personnel subject to a clear DAS. Please find attached the following documentation • Execom Contract • Personal Details Form • Tax Declaration Form • Superannuation Form Please sign the Execom Contract and complete all other documentation and return them to Execom Personnel before Monday 9th September 2019. Payment cannot be processed until the signed contract and forms are received by this office. • Your weekly pay period finishes on Sunday the 8th September 2019. • Payday is Thursday. Your 1st pay will be directly credited to your account on Thursday 12th September then weekly thereafter. IMPORTANT PAYROLL INFORMATON • Please ensure that you provide us with your Tax Declaration Form and Contract prior to Monday 9th September, otherwise processing of your pay will be delayed • Execom pay Superannuation into your nominated super fund on a monthly basis. The ATO requirement is quarterly. Should you have any pay-related queries please contact Kirsty Jones at [email protected] and any contract related queries should be directed to myself. 24 GAB 139. -- 15 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 16 We hope you enjoy working with Execom Personnel at Austal Ships commencing on Monday 2nd September, 2019 at 7.00am. Yours sincerely Deborah Woodman [signed] Senior Recruitment Consultant (original emphasis) 31 The contract attached to the email (the Execom Contract) was also on Execom letterhead. It materially contained the following provisions:25 THIS AGREEMENT is made on the date in the Schedule BETWEEN: EXECOM PERSONNEL of [address] ('EXECOM PERSONNEL') of the one part, and the CONTRACTOR whose particulars are set out in the Schedule (the 'CONTRACTOR') of the other part. WHEREBY IT IS AGREED as follows:- 1. The CONTRACTOR hereby undertakes to supply such services for clients of EXECOM PERSONNEL as are set out in the Schedule, to commence and terminate on the dates set out in the Schedule. Unless otherwise stated, such services are to be continuous. 2. The CONTRACTOR agrees with EXECOM PERSONNEL as follows: … (c) That the CONTRACTOR is at all times an independent CONTRACTOR and is not an agent or employee of EXECOM PERSONNEL or of EXECOM PERSONNEL's Client for any purpose [whatsoever], and that the CONTRACTOR will not seek to recover from EXECOM PERSONNEL or EXECOM PERSONNEL's Client any sickness pay, holiday pay, long service leave or any entitlement other than the agreed contract payment. (d) The Contractor warrants that the Contractor possesses all qualifications and skills appropriate for the provision of services. This includes, but is not limited 25 GAB 140 - 142. -- 16 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 17 to, necessary qualifications or training or compliance with the requirements of any statute, Authority, and relevant professional or trade organisations. (e) The contractor agrees to. • Observe and comply with the policies, customs and practices established by the Client/Project from time to time. • Obey all lawful directions of the Client/Project as advised from time to time • Perform any work for the Client with reasonable care, skill and diligence: 3. EXECOM PERSONNEL agrees with the CONTRACTOR to pay the CONTRACTOR at the rate set out in the Schedule within seven (7) days of receipt of the CONTRACTOR's invoice and the relevant time sheets. 4. All expenses and bonuses will be paid to the CONTRACTOR within 7 days of EXECOM PERSONNEL receiving payment from the client. 5. The parties mutually agree as follows: … (g) This Agreement constitutes the entire contract between the parties for the supply of the specified services and supersedes all previous arrangements, correspondence, tenders, representations, proposals and understandings whether oral or in writing. … (j) Moon Recruitment shall arrange and maintain Public Liability and Professional Indemnity insurance. Such Insurance shall cover liability of contractors whilst engaged solely by Execom Personnel. The Contractor will immediately notify Moon Recruitment or Execom Personnel of an event that is likely to give rise to a claim under the Public Liability and Professional Indemnity insurance. (k) Execom Personnel shall arrange and maintain workers compensation insurance for its liabilities as per the provision of the Western Australian workers compensation and injury management Act 1981 including Common Law Liability. The Contractor will -- 17 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 18 immediately notify Execom Personnel of an event that is likely to give rise to a claim under our workers compensation policy. SCHEDULE CONTRACTOR: Adam Horne or nominee acceptable to the client SERVICES: Fabricator Welder ADDRESS FOR PROVISION OF SERVICES: Echo Marine Group which is located at 49 Clarence Beach Road, Henderson COMMENCEMENT DATE: Monday 2nd September, 2019 at 7.00am subject to a clear DAS. 32 The contract form also provided for working hours and payment at specified rates 'as per the Austal Employee Collective Agreement'. The references to Austal appear to have been a carry-over from a different agreement used as a template, as Austal was not involved in any relevant arrangement with any party. 33 There was also a document entitled 'Execom Personnel Payroll Policy' attached to the email sent by Ms Woodman on 30 August 2019. It was in the following terms:26 Hello Welcome to Execom Personnel. Please read the overview of our Payroll Policy to ensure that Execom Personnel continue to provide your Payroll service in a timely and efficient manner. Payments • Payments are made on Tuesday afternoon. Depending upon your Banking Corporation, most payments are received by Tuesday, Wednesday or Thursday. As such, please allow 2 banking business days for your pay to be processed. Public Holidays • If a Public [Holiday] falls on a Monday, please be aware that pays will be processed on the Wednesday. 26 District Court appeal book 128. -- 18 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 19 General Information • Any payroll related queries need to be e-mailed at [email protected] • From time to time you will be emailed important information with regards to payroll. Please ensure you take note of this information as it would greatly assist us in our payroll functions. • If there are changes to your address, contact details, bank details, superannuation details then please notify us immediately by written confirmation. We thank you in advance for your assistance in ensuring correct procedures are followed in order for payments to be processed promptly and accurately. If you have any queries, please do not hesitate to contact Payroll on (08) 9481 1256. Thanks and regards Subsequent events 34 Mr Horne attended Echo Marine on 2 September 2019 without signing or returning the contract or other documents. It does not seem that there was any other conversation with him either, apart from the one hinted at in the email from Kerrie Moon to Deborah Woodman at 8.22 am on Friday, 30 August 2019. 35 On 2 September 2019, Horne was injured at work and did not return. He subsequently returned the signed contract to Execom. He submitted his worker's compensation claim form (which Ms Moon had given him) to Echo Marine, who forwarded the claim to Moon Recruitment who forwarded it to Execom. Execom paid Mr Horne for his work, which Moon Recruitment was invoiced for, and Moon Recruitment then invoiced Echo Marine.27 36 Horne actually signed the Execom Contract on 1 October 2019.28 This was some time after he was injured on 2 September 2019, which was his first day of work. The injury on that day left him unable to return to work.29 27 BAB 134 (arbitrator's reasons [64] - [66]). 28 GAB 75. 29 BAB 137 (arbitrator's reasons [68(l)]). -- 19 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 20 Certain observations on Execom Contract 37 The contractual obligation of Execom in cl 1 of the Execom Contract, which required the Contractor (Horne) to provide services to a client of Execom, does not specify who is Execom's client. Moreover, Execom's obligation to provide services is couched in wide terms. It does not differentiate between a situation where Execom's client is hiring labour from Execom; and where Execom's client is obtaining payroll services from Execom. 38 In these circumstances, the contract between Horne and Execom requires an understanding of the identity of Execom's client and what services that client requires. As the Execom Contract does not define who the client is for the purposes of the contract, identification of the client requires extrinsic evidence. 39 It would seem reasonably clear that, objectively speaking, the extrinsic evidence would lead Horne to identify Moon Recruitment as Execom's client for the purposes of the contract. This inference can be drawn from the email sent to Horne at 9.15 am on 30 August 2019 which was headed 'Contract for Moon Recruitment for Echo Marine Group' and stated that Horne would start 'at Echo Marine Group for Moon Recruitment'.30 Although not known to Horne, this is also consistent with the terms of 2015 Agreement between Moon Recruitment and Execom. 40 Two other matters should be mentioned. First, it is potentially odd that cl 5(j) of the Execom Contract should state an obligation binding upon Moon Recruitment to arrange and maintain public liability and professional indemnity insurance, when Moon Recruitment was not an identified party to the Execom Contract. However, a possible explanation for this will be considered below. 41 Secondly, as described above, the Schedule to the Execom Contract contains an error in the 'Payment' item, where it states that 'Payment will be as per the Austal Employee Collective Agreement'. Austal was not a party to any aspect of the arrangement, and the reference to it appears to be an unintended inclusion from a previous precedent. An unintended reference to Austal also appears in the last line of the letter from Execom to Horne dated 30 August 2019. 30 GAB 137. -- 20 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 21 Legal principles - Identification of contracting parties 42 It is well established that determining the identity of contracting parties is a question of fact.31 The parties to a contract are identified according to the objective theory of contract.32 43 Agrigrain Pty Ltd v Rindfleish was a case where the issue was simply which of two possible entities was the party to an employment contract.33 Kirk JA (Ward P & Stern JA agreeing) held that, in that context (at [34]): The contractual question here is what a reasonable person in the position of the parties would understand as to the terms and effect of the contract: eg Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40]; Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 277 CLR 115 at [15], [47] and [115]. That principle extends to identifying the parties to the contract: see, in the employment context, Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [61] - [62]. Where there are two potential employers, in a case such as this one, the 'parties' here can be taken to include both of them such that the question is what a reasonable person in the position of all potentially relevant parties would understand as to which entity was party to the employment contract as employer. For a written contract, assessment of what a reasonable person would understand 'requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction': Toll at [40]. For contracts not exclusively in writing, post- contractual material may also be relevant in determining what were the terms of the contract: eg Lawrence v Ciantar [2020] NSWCA 89 at [114], and authority there cited; Personnel Contracting at [177] and [190]. 44 That is, as Kirk JA observed at [40]: The ultimate question in cases such as this is the contractual one of what a reasonable person in the position of all the potentially relevant parties would understand as to which entity was party to the employment contract as employer, taking account of the permissible evidence. 45 Kirk JA notes, at [33], that other related but distinct arguments might arise in such matters, including where: 31 Nudrill Pty Ltd v La Rosa [2010] WASCA 158 [21] approving Wilden Pty Ltd v Greenco Pty Ltd (Unreported, WASC, Library No 950322, 22 June 1995). 32 Mills v Walsh [2022] NSWCA 255 [73]; Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 [54] - [58]; Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603 [262] - [266] (Campbell JA). 33 Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295; (2024) 335 IR 400 [32]. -- 21 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 22 there may be an allegation that the party named as employer was contracting as agent for an undisclosed principal: eg Resilient Investment Group Pty Ltd v Barnet [2023] NSWCA 118; (2023) 111 NSWLR 446 at [166] - [185]. That issue overlaps with the occasional need to identify whether a party who has signed a contract bound themselves in one capacity and/or in another: as to which see Sinclair v Balanian [2024] NSWCA 144; (2024) 114 NSWLR 248. 46 In Resilient Investment Group Pty Ltd v Barnet, the trial judge was held not to have erred in looking at the totality of the relationship in identifying an employer and determining that the nominal employer acted as agent for an undisclosed principal.34 Obviously, in undertaking that analysis the court did not confine itself to matters known to the employee. Issue in the present case 47 The primary issue is to identify who was Horne's employer under a contract of employment when he was injured on 2 September 2019. The answer to that question will determine who was Horne's 'employer' within the meaning of this term in s 5(1) of the 1981 Act, and hence who is liable to pay compensation to Horne by reason of s 18(1) of the 1981 Act. 48 The critical issue arises on the facts set out above. Applying an objective theory of contract, the correct inference to draw from those facts, about the identity of the relevant contracting parties in the arrangements between Moon Recruitment, Execom and Horne depends upon the inference which a reasonable person in the position of the parties would have drawn. That also is a question of fact. Identification of Horne's employer 49 As at 2 September 2019, the following objectively known matters had occurred, and were commonly known to each of the relevant parties as indicated: (a) Moon Recruitment had posted the advertisement seeking fabricators with light gauge steel or aluminium experience - commonly known to Moon Recruitment and Horne; 34 Resilient Investment Group Pty Ltd v Barnet [2023] NSWCA 118; (2023) 111 NSWLR 446. -- 22 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 23 (b) Kerrie Moon had interviewed Horne, and arranged an on-site welding test with Echo Marine - commonly known to Moon Recruitment and Horne; (c) Horne had submitted his curriculum vitae to Kerrie Moon - commonly known to Moon Recruitment and Horne; (d) Moon Recruitment had provided branded shirts to Horne - commonly known to Moon Recruitment and Horne; (e) Kerrie Moon had arranged drug and alcohol testing for Horne - commonly known to Moon Recruitment and Horne; (f) Moon Recruitment and Execom had entered the 2015 Agreement, pursuant to which Moon Recruitment had engaged Execom a number of times to provide services (setting up payroll, superannuation and tax deductions), but without Execom having anything to do with where, how or for whom the worker worked and without any relationship with the host employer - commonly known to Moon Recruitment and Execom; (g) Moon had requested Ms Woodman of Execom, by email, to engage Horne for work at Echo Marine - commonly known to Moon Recruitment and Execom; (h) Ms Woodman of Execom had emailed Horne with the letter of engagement, the Execom Contract and various regulatory forms. This email was headed 'Contract for Moon Recruitment for Echo Marine Group' and stated that Horne would start 'at Echo Marine Group for Moon Recruitment'. This was the first time Horne had been informed of the precise rate of his pay - commonly known to Execom and Horne; (i) Kerrie Moon had apparently advised Horne that he was successful in passing his drug and alcohol test and that Echo Marine wished to engage his services - commonly known to Moon Recruitment, Horne and Execom; (j) Horne was advised to attend at the premises of Echo Marine on 2 September 2019, to commence his work - commonly known to Moon Recruitment, Execom and Horne; and -- 23 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 24 (k) Horne had not signed the Execom Contract on 2 September 2019 - commonly known to Moon Recruitment, Execom and Horne. 50 These matters have been arranged so that the matters in pars (a) - (e) were those commonly known to Moon Recruitment and Horne; the matters in pars (f) - (g) were commonly known to Moon Recruitment and Execom; and the matter in (h) was commonly known to Execom and Horne. The matters in pars (i) - (k), namely the request for Horne to attend work at 7.00 am on 2 September 2019 at Echo Marine's premises without there being a signed contract, were known to all three parties. 51 Applying an objective theory of contract formation, we consider that up to the point when Horne was contacted by Ms Woodman on 30 August 2019, there is no doubt that he was to be employed by Moon Recruitment to work on projects for Echo Marine. Horne knew nothing of Execom up until that point. 52 What, then, objectively speaking, was the effect of Horne receiving the email from Ms Woodman on 30 August 2019, without particular explanation from either Kerrie Moon or Ms Woodman? 53 Two matters appear to us to be salient: (a) there is nothing to suggest, as far as the oral or documentary evidence goes, that Moon Recruitment was performing a role simply as a recruiter of labour services for Execom to hire for its own purposes. Nothing was said of Execom's role to Horne by Kerrie Moon at any stage; and (b) it would have been evident to Horne that Moon Recruitment was to have a continuing role, because the email dated 30 August 2019, sent from Execom to Horne, made plain that the contract between Execom and Horne is 'for' Moon Recruitment. 54 Objectively speaking, therefore, a reasonable person in Horne's position would conclude that, whatever contractual arrangement he was entering with Execom, it was to enable Moon Recruitment to provide Horne's services to Echo Marine. This would mean that Execom's client, referred to in cl 1 of the Execom Contract, would have to be identified as Moon Recruitment. Therefore, the services which Horne would provide pursuant to the Execom Contract would be for the -- 24 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 25 purposes of Moon Recruitment, even though Execom would be paying him for those services. 55 Two legal mechanisms could bring about this result. On the one hand, Execom could be contracting with Horne as the agent of Moon Recruitment, so that Horne would provide his services to Execom's principal, Moon Recruitment, and Moon Recruitment could hire those services to Echo Marine on a labour hire arrangement. On the other hand, Execom could be contracting in its own capacity directly with Horne, to provide services to Moon Recruitment, so that Moon Recruitment could sub-hire those services on a labour hire arrangement to Echo Marine. 56 On either view, objectively speaking, Horne would be obliged (by the Execom Contract) to provide his services to Moon Recruitment, so that Moon Recruitment could provide those services to Echo Marine pursuant to a labour hire arrangement. 57 The choice between these legal mechanisms must be made consistently with the written terms of the Execom Contract. In that regard, cl 5(j), which purports to impose an obligation upon Moon Recruitment to arrange and maintain public liability and professional indemnity insurance, is significant. Objectively, that obligation would make no sense if Moon Recruitment were not a party to the contractual arrangement with Horne. On the other hand, it would make perfect sense if Moon Recruitment was to be regarded as the principal of Execom, and therefore a party to the Execom Contract by reason of Execom acting as Moon Recruitment's agent. 58 An agency relationship is also consistent with the 2015 Agreement (although the existence of this was not known to Horne). This makes plain that Execom is simply providing 'payroll services' for a contractor engaged by Moon Recruitment, and that the contractor is 'not a Direct Employee, servant or agent of [Execom], and that [Execom] exercises no control or direction over the Contractor'.35 59 In our view, a reasonable person in the position of all the parties would understand that Execom acted as agent for Moon Recruitment. An agency arrangement is more consistent with the references, in the covering email to Horne attaching the Execom Contract, to his engagement for Moon Recruitment and with cl 5(j) of the Execom Contract, considered in light of Horne's previous dealings with Moon 35 GAB 127 (2015 Agreement cl 2, cl 4(a)). -- 25 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 26 Recruitment. It is also more consistent with cl 4(a) of the 2015 Agreement. Although Horne was not aware of the 2015 Agreement, it remains relevant as a person can act as agent for another without disclosing that fact to the third person with whom the agent is dealing. The proper conclusion is that Moon Recruitment entered a contract of employment with Horne, through the agency of Execom. 60 It is true that Horne did not sign the Execom Contract until well after 2 September 2019, but evidently it was part of the circumstances which led to Horne attending at work on 2 September 2019. It should be inferred that Horne accepted the terms of the contract with Execom (as agent for Moon Recruitment) by attending at work on 2 September 2019. Identity of Horne's employer on 2 September 2019 for purposes of s 18 61 Adopting the agency explanation, Moon Recruitment employed Horne and provided his services, by way of a labour hire arrangement, to Echo Marine. This qualifies Moon Recruitment as an 'employer' within the primary definition of this term in s 5(1) of the 1981 Act, which includes the following situation: where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person. (emphasis added) 62 It follows that Moon Recruitment was an 'employer' for the purposes of s 18(1) of the 1981 Act. Moon Recruitment was therefore responsible for the payment of compensation to Horne under that provision. Execom, which was merely the agent through which Moon Recruitment engaged Horne, was not his employer and was not liable to pay workers' compensation to him in its own capacity. Consequently, Execom could obtain an order for reimbursement of the amounts which it had paid in compensation pursuant to s 71(2) of the 1981 Act. Leave to appeal 63 In our view, applying the analysis set out above, the arbitrator and Sweeney DCJ were correct to conclude that Moon Recruitment was Horne's employer and liable to pay workers' compensation under s 18(1) of the 1981 Act. -- 26 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 27 64 It follows that the arbitrator and Sweeney DCJ each arrived at the correct result. As well, each of the arbitrator and Sweeney DCJ engaged in careful and reasoned analysis. While the analysis set out above may depart at points from the analysis adopted by the arbitrator and Sweeney DCJ, it reaches the same conclusion. 65 The 1981 Act was replaced with the Workers Compensation and Injury Management Act 2023 (WA) (2023 Act) with effect from October 2023. However, the events in the present case occurred prior to 2023. All parties have accepted that the substantive provisions of the 1981 Act apply. The relevant leave provisions relating to appeals contained in the 1981 and 2023 Acts are materially identical.36 There is no need to determine which of the 1981 or 2023 Acts apply in so far as the appellant seeks leave to appeal, although this court has previously found that the better view is that the 2023 Act applies. Whichever Act applies, it remains the position that the appellant requires leave to appeal and the appeal must relate to a question of law.37 66 However, even if an appellant establishes that an appeal relates to a question of law, it does not follow that leave should automatically be granted. The recent observations made by this court in Zamora v OCS Services Pty Ltd are apposite:38 The case for leave to appeal must be grounded in supposed substantial injustice to the appellant himself. In such circumstances a litigant who has failed before both the arbitrator and the District Court will ordinarily have difficulties in establishing that the interests of justice warrant leave to appeal to this court to reventilate arguments which failed in the primary appeal to the District Court. Leave to appeal to do no more than reagitate arguments rejected in the District Court ought not to be forthcoming as a matter of course. Even if, as in this case, substantive rights are involved, it is material that a litigant has already availed himself or herself of one appeal right. This court will require a reasonably clear case of alleged legal error if it is to be satisfied that the decision is attended with sufficient doubt to justify leave. That is all the more so where, as in this case, the primary judge has identified the applicable legal principles in orthodox terms to which no exception is taken, meaning that any error could only be one of application of those legal principles to the facts of the case. 67 Vaughan JA (with the agreement of the other members of the court) reiterated these sentiments even more recently, in Morgan v 36 1981 Act s 254; 2023 Act s 393. 37 Zamora v OCS Services Pty Ltd [2025] WASCA 117 [38] - [39]. 38 Zamora v OCS Services Pty Ltd [50] (see also [48] - [49]). -- 27 of 28 -- [2026] WASCA 80 JUDGMENT OF THE COURT Page 28 Roman Catholic Archbishop of Perth.39 In that case, the primary judge in the District Court had given 'careful and comprehensive' reasons for judgment, and this was one of several matters militating against granting leave to appeal to allow the same arguments to be repeated before the Court of Appeal. There is no doubt that the reasons of Sweeney DCJ in this case also qualify as 'careful and comprehensive'. 68 Having regard to the observations of Vaughan JA quoted above, the correctness of Sweeney DCJ's conclusion - that Moon Recruitment was the employer liable to make workers' compensation payments to Horne - is not attended by sufficient doubt to justify the grant of leave to appeal to this court. 69 For these reasons, we would refuse leave to appeal and dismiss the appeal. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LH Associate to the Hon President Thomson 17 JUNE 2026 39 Morgan v Roman Catholic Archbishop of Perth [2026] WASCA 62 [59] - [60]. -- 28 of 28 --