Australian Bushman's Campdraft and Rodeo Association Ltd v Gajkowski
[2017] NSWWCCPD 54
•21 November 2017 15 December 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Australian Bushman’s Campdraft and Rodeo Association Ltd v Gajkowski [2017] NSWWCCPD 54 | |
| APPELLANT: | Australian Bushman’s Campdraft and Rodeo Association Ltd | |
| FIRST RESPONDENT: | Mitchell Jack Gajkowski by his tutor Megan Judd | |
| SECOND RESPONDENT: | The Camden Show Society Inc | |
| APELLANT’S INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |
| SECOND RESPONDENT’S INSURER: | CGU Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A2-644/17 | |
| ARBITRATOR: | Mr R Bell | |
| DATE OF ARBITRATOR’S DECISION: | 31 May 2017 | |
| DATE OF APPEAL HEARING: DATE OF APPEAL DECISION: | 21 November 2017 15 December 2017 | |
SUBJECT MATTER OF DECISION: | Whether a competitor in a rodeo is taken to be a worker; application of cl 15 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998; meaning of “engaged for fee or award”; meaning of “entertainer”; meaning of “public performance”; fresh evidence on appeal; s 352(6) of the 1998 Act | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | Oral | |
| REPRESENTATION: | Appellant: | Ms J Lucy, instructed by Hall & Wilcox |
| First Respondent: | Mr G Reynolds SC and Mr F Curran, instructed by Attwood Marshall Lawyers | |
| Second Respondent: | Ms K Balendra, instructed by Moray & Agnew | |
| ORDERS MADE ON APPEAL: | 1. The record is corrected to describe the first respondent as Mitchell Jack Gajkowski by his tutor Megan Judd. 2. The Arbitrator’s determination of 31 May 2017 is revoked and the following order is made in its place: “Award for the respondents.” | |
INTRODUCTION
Prior to his injury on 4 April 2014, Mr Michael Gajkowski (also known as Michael Judd) regularly participated in rodeo events as a bull rider. He was taking part in a rodeo at the Camden Showground in the open bull riding category when he suffered a head injury resulting in severe brain damage.
Mr Gajkowski contends that he is entitled to workers compensation benefits as he is taken to be a worker pursuant to cl 15 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Clause 15(1)(c) provides that a person, engaged for fee or reward, to take part as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge is, for the purposes of the 1998 Act, taken to be a worker employed by the person conducting or holding the contest or public or other performance.
The issues in this appeal concern whether Mr Gajkowski is a deemed worker. In particular the issues concern: whether there was a process of “engagement”, whether he was provided a “fee or reward”, whether he was an “entertainer”, and whether the appellant was conducting or holding a contest or public or other performance within the meaning of cl 15(1) of Sch 1 to the 1998 Act.
BACKGROUND
Mr Gajkowski is 23 years of age. At the time of the accident Mr Gajkowski was in full time employment as a Butcher’s apprentice. On weekends he actively participated in rodeos at various locations around New South Wales.
On 4 April 2014, he was participating in the bull riding event at a rodeo at the Camden Showground. During the event Mr Gajkowski was injured when his head forcefully struck the head of the bull he was riding. He suffered a severe head injury resulting in permanent brain damage.
The rodeo was an annual event run by the Camden Show Society Inc (CSS). CSS was insured for workers compensation liability by CGU Workers Compensation (NSW) Ltd (CGU).
Australian Bushman’s Campdraft and Rodeo Association Ltd (ABCRA) is a not for profit sporting organisation whose prime function is to promote and encourage participation in and administer the sport of rodeo and campdrafting. It provides administrative support to affiliated committees, of which CSS was one.
On 17 April 2015, Mr Gajkowski made a claim for compensation against ABCRA.
On or about 4 May 2015, it is apparent that Mr Gajkowski also made a claim for compensation against CSS, although a copy of that correspondence is not in evidence.
On 2 June 2015, Allianz Workers Compensation (NSW) Ltd (Allianz), on behalf of ABCRA, issued a notice pursuant to s 74 of the 1998 Act. It denied liability for compensation on the basis that Mr Gajkowski was neither a “worker” as defined in the 1998 Act, nor was he considered to be a “deemed worker” pursuant to cl 15 of Sch 1 to the 1998 Act.
On 9 June 2015, CGU issued a notice under s 74 of the 1998 Act on behalf of CSS. CGU declined liability on the basis that Mr Gajkowski was not a “worker” as defined in s 4 of the Workers Compensation Act1987 (the 1987 Act) or s 4 of the 1998 Act. Further, CGU alleged that Mr Gajkowski was not a deemed worker pursuant to either of those Acts. In particular, in so far as cl 15(1) of Sch 1 to the 1998 Act is concerned, it denied that Mr Gajkowski was “a person engaged for fee or reward to take part” in the rodeo. In particular it claimed:
(a) Mr Gajkowski was not “engaged” by CSS;
(b) if he was so “engaged”, he was not “engaged for fee or reward”;
(c) there was no “fee” paid in terms of any monetary sum, nor was there any “reward”;
(d) it denied that Mr Gajkowski was “an entertainer”;
(e) the rodeo event was not a “public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge”, and
(f) CSS was not “the person conducting or holding” the rodeo event but rather the event was conducted and held by ABCRA.
On 7 July 2015, Allianz issued a second s 74 notice, again declining liability for the reasons identified above. In addition, in so far as the “deemed worker” provisions are concerned, ABCRA claimed that it had not engaged Mr Gajkowski for fee or reward in respect of the rodeo. Further it alleged that, there was no evidence that ABCRA charged any entry fee to the public to view the rodeo.
On 9 February 2017, Mr Gajkowski filed an Application to Resolve a Dispute in the Commission (the Application). He joined both CSS and ABCRA as respondents to the Application. He claimed weekly compensation from 4 April 2014 to date and continuing and medical, hospital and rehabilitation expenses.
On 1 March 2017, CSS filed a Reply to the Application. It denied liability for the reasons stated in its s 74 notice.
On 3 March 2017, ABCRA filed a Reply to the Application also denying liability for the reasons stated in its s 74 notice.
On 28 April 2017, the matter was listed for a conciliation and arbitration hearing at Tweed Heads. No oral evidence was given. After hearing submissions from the parties, the Arbitrator reserved his decision.
On 31 May 2017, the Arbitrator issued a Certificate of Determination. He found in favour of Mr Gajkowski on all issues. The Certificate of Determination is in the following terms:
“The Commission determines:
1. That the Commission finds that the applicant is taken to be a worker pursuant to Schedule 1, Clause 15 (1) (c) of the Workplace Injury Management and Workers Compensation Act 1998 for the purposes of the Acts.
2. That the Commission finds that the first and second respondents are ‘persons’ who conducted or held a public performance during which the applicant was injured, suffering traumatic brain injury; and head laceration.
3. That the Commission finds that the first and second respondents are liable equally for payment of the compensation awarded.
4. That the respondents pay to the applicant weekly compensation:
(a)from 7 April 2014 to 7 July 2014 at the rate of $653.77 pursuant to section 36 of the Workers Compensation Act 1987;
(b)from 8 July 2014 to 7 April 2015 at the rate of $550.54 pursuant to section 37 of the Workers Compensation Act 1987;
(c)from 8 April 2015 to 30 June 2015 at the rate of $579.73 (section 37);
(d)from 1 July 2015 to 30 June 2016 at the rate of $596.96 (section 37);
(e)from 1 July 2016 to 03 October 2016 at the rate of $626.64 (section 37);
(f)from 4 October 2016 to date at the rate of $626.64 (section 38 of the Workers Compensation Act 1987).
5. Such payments to continue in accordance with the Acts.
6. That the respondents pay the applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts/receipts.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ABCRA appeals the Arbitrator’s determination. In a separate appeal (matter number A1-644/17) CSS also appeals the Arbitrator’s determination. Both appeals were heard together before me on 21 November 2017.
PRELIMINARY MATTERS
Monetary threshold
There is no issue that the threshold requirements of s 352(3)(a) and 352(3)(b) of the 1998 Act are satisfied. The amount of compensation in issue on the appeal clearly exceeds the statutory threshold, in that at least $5,000 and at least 20% of the amount awarded in the decision appealed against is in issue on the appeal.
Time
The appeal was lodged within 28 days of the Arbitrator’s determination in compliance with s 352(4) of the 1998 Act.
Correction of the record
On 15 July 2014, the NSW Civil and Administrative Tribunal, in matter number 2014/4587, issued a financial management order pursuant to the NSW Trustee and Guardian Act2009 appointing Mr Gajkowski’s mother Megan Judd as Mr Gajkowski’s financial manager.
By application to the Commission dated 2 August 2017, Mr Gajkowski’s legal representatives sought leave to correct the record to describe that applicant as “Mitchell Jack Gajkowski by his tutor Megan Judd”. The application is made with the consent of all parties. In the circumstances, I direct that the pleadings be amended to describe the applicant as “Mitchell Jack Gajkowski by his tutor Megan Judd”.
THE EVIDENCE
Mitchell Gajkowski
Mr Gajkowski provided a signed statement of evidence dated 24 November 2015. The statement was prepared with the assistance of his mother, Ms Judd. It is acknowledged that due to the severity of Mr Gajkowski’s injuries he required prompting and assistance during the recording of his evidence.
Mr Gajkowski was roughly nine years of age when he developed a keen interest in bull riding. At first he rode poddy calves and then steers. By the age of 14 he won the Australian Title for Steer Riding. Mr Gajkowski attended Coonamble High School and completed year 10. He states that whilst completing his secondary schooling he competed in rodeos almost every weekend. It was his ambition to win as many rodeos as possible to fulfil his ambition of participating in the professional bull rider’s circuit in America.
After he left school in 2011, Mr Gajkowski commenced work with a local butcher and undertook a butchery apprenticeship. For the first two years after starting full time work Mr Gajkowski did not compete in rodeos.
Mr Gajkowski states that in 2013 he returned to competing in rodeos on a regular basis. He states that he “began working towards earning a living as a professional bull-rider”. He initially rode in the junior bull riding category riding small bulls and began receiving substantial prize money for winning or receiving a place in those competitions.
Mr Gajkowski progressed to the novice bull riding category, and ultimately to the open bull category in which he was competing at the time of his injury.
Mr Gajkowski has no recollection of the injury he sustained whilst competing on 4 April 2014 in the bull riding event at the Camden Show Rodeo. He states that he has been told by his mother that he suffered a severe and traumatic brain injury. Mr Gajkowski is totally incapacitated and is fully dependent on others to assist him with activities of daily living.
Megan Judd
Ms Judd, in a statement dated 24 November 2015, stated that riders who entered their first year of competition in the open bull level pursue the “Australian Rookie Title”, a title which goes to the best “up-and-coming” riders in Australia. At the time of Mr Gajkowski’s accident he was pursuing the title as he was in his first year of open category bull riding. Ms Judd states that Mr Gajkowski was well in contention for the title and was on track to become a professional bull rider as he planned. She stated that riders who are placed from first to fifth in a given rodeo receive prize money. Ms Judd stated:
“I estimate that Mitchell would receive a place at the rodeos in which he competed between 60 per cent and 70 per cent of the time, whenever he was competing every weekend.
It is not easy to determine how much prize money Mitchell obtained, because the prize money for a particular rodeo is drawn in part from the ‘nomination’ fees of each rider. Some rodeo wins were very lucrative, and Mitchell could sometimes win $3,000 to $4,000 for a single ride.
Another complicating factor is that the prize money was often cash-in-hand.
When competing every weekend, and placing in competitions as often as Mitchell was, it is possible to live entirely on income derived from prize money.
It is possible to earn $100,000 per year in Australia riding in the Open Bull level of rodeo competition.”
Hugh Southwell
Mr Southwell is the President of CSS. He provided two statements of evidence – the first on 28 May 2015 and a further statement on 2 June 2015.
In his first statement, Mr Southwell states that the Camden Show is run annually in March or April each year. He said:
“In relation to the affiliation between the Camden Show Society and the Australian Bushmen’s Camp Draft and Rodeo Association (ABCRA); The Camden Show Society pays a membership fee to ABCRA to use their online competitor registrations to organise the annual Rodeo as part of the Camden Show. This membership fee also covers costs to advertise the Camden Show Rodeo through the ABCRA magazine and website. ABCRA are only involved in the Rodeo component of the Camden Show. All competitors wanting to participate in the Rodeo at the Camden show need to register through the ABCRA.”
Mr Southwell confirmed that prior to the rodeo event, Mr Gajkowski signed a waiver form indicating that he understood all the risks associated with his participation in the rodeo competition.
Further, Mr Southwell said that Mr Gajkowski was not paid any prize money, fees or other payments to participate in the 2014 Camden Show Rodeo. Mr Gajkowski may have been paid prize money if he had won the competition.
In his second statement, dated 2 June 2015, Mr Southwell stated:
“The Camden Show Society (Inc) pays an affiliation fee in the amount of $110.00 and a further $350.00 to ABCRA Ltd to conduct our rodeo. We are required to use ABCRA Ltd officials as well as their affiliated livestock provider, L & M Livestock. We pay the livestock provider direct.”
Mr Southwell further stated that registration to compete in the rodeo is undertaken online through ABCRA’s website. It vets all competitors. Upon completing the online entry, the entrant pays the entry fee and signs a risk waiver form on the website prior to competing. Mr Gajkowski was not invited to compete in the rodeo. There is no contract of competition or employment entered into between CSS and any of the competitors.
Jason Sharpe
Mr Sharpe is the chairman of the rodeo subcommittee of CSS. In his statement dated 28 May 2015, Mr Sharpe states:
“There are quite a few Rodeo associations in Australia, however the ABCRA are one of the more prominent associations. The ABCRA are essentially a membership base. Rather than just opening the gates and having anyone turn up to participate in the Rodeo, we filter competitors through the ABCRA who are specialists in the sport of Rodeo. This increases the standard and safety of our event. For the privilege of using the ABCRA membership base the Camden Show Society pays a fee to the ABCRA of around $110.00 per year which allows our society to affiliate with the ABCRA. As part of accessing this membership base the Camden Show must use ABCRA judges and personnel for our Rodeo, including ABCRA protection clowns. The ABCRA provide a list of staff registered with their organisation and we select staff from these lists. These staff are then paid by the Camden Show Society to perform duties at the Camden Show. At the 2014 show there were three Judges, a Chute Boss, two Protection Clowns and an announcer contracted through the ABCRA to perform duties at the Camden Show. These staff are essentially hired on a contract basis through the ABCRA network and paid directly by the Camden Show Society …
When the Camden Show Society decide that we are going to run a Rodeo as part of the Camden Show we apply to ABCRA to run the event on a certain date. This date is decided a year in advance … When we register our dates we nominate what Rodeo events we want to run. The ABCRA have a list of events that they allow us to run and we pick out what events we would like to hold at the Camden Show. One for these events is the Open Bull Ride. The Camden Show has been associated with the ABCRA for many years. We have always associated with them since I have been on the committee. The Camden Show determines the competition fee competitors need to pay to enter the Rodeo competition which takes into account the event prize money, trophy levy and ambulance levy.”
Once the date has been confirmed for the Camden Show, it is advertised in the ABCRA magazine. Entries are received via ABCRA from persons wishing to compete at the show. Mr Sharpe added:
“This system is for ease of operation as ABCRA have knowledge as to who is a paid affiliated member and this this [sic] ensures that we are getting experienced competitors at the Camden Show.”
About five days prior to the Camden Show Rodeo commencing, ABCRA send a competitor list. Mr Sharpe said:
“It is very difficult for the Camden Show Society to screen and process potential Rodeo competitors for a Rodeo competition held one evening per year and this is why we opt for the central entry system through the ABCRA.”
In relation to the distribution of fees Mr Sharpe said:
“The dividing and distribution of competition fees is a complex process. ABCRA send through a form to determine this process. The Camden Show Society provides the ABCRA with any membership payments that were paid onsite at the Camden Show. After the event we complete a ‘Rodeo Reconciliation Statement’. This statement calculates the levies to be paid to ABCRA based on competitor numbers.”
Mr Sharpe confirmed that decisions in relation to whether the rodeo would go ahead in wet weather were made by CSS. He stated that there had been concern about the weather in the week leading up to the event. He said “I recall that I met with the executive to determine what we would do if the rain continued to get worse.” The committee consulted with stock contractors and judges to determine whether the arena surface was sound. It determined after trialling the surface with stock over the area that the event could safely proceed.
Allan Jones
Mr Jones is the executive officer of ABCRA. Mr Jones provided two signed statements of evidence dated 18 May 2015, the first statement, and 9 June 2015, the second statement.
Mr Jones states that ABCRA is a not for profit sporting organisation whose prime function is to promote and encourage participation in and administer the sport of rodeo and campdrafting and to provide administrative support to affiliated committees. The Camden Show Rodeo was an affiliated event. Mr Jones states that membership of ABCRA entitles the member to personal accident insurance. In addition, public liability insurance is taken out by CSS through Lloyd’s of London.
Attached to Mr Jones’ first statement is a copy of ABCRA member points printout relating to Mr Gajkowski. That document indicates that Mr Gajkowski commenced participating in events as early as 19 November 2005. The records indicate that he participated regularly in various events from 2005 to 2007; however, his participation from January 2008 and 2009 would indicate that Mr Gajkowski was participating in events several times a month. His participation in 2012 to February 2014 was relatively infrequent. The document records:
Date
Fixture
Event
Price
28/07/12
WEE WAA Rodeo
N3 Novice Bull Ride
$429.20
8/06/13
Coonamble Rodeo Sat
N3 Novice Bull Ride
$333.20
27/09/13
Singleton Show Rodeo
N3 Novice Bull Ride
$277.55
26/01/14
Taralga Rodeo
N3 Novice Bull Ride
$348.00
8/02/2014
Cooma Rodeo
N3 Novice Bull Ride
$1,290.00
Total Event:
$2,657.95
26/10/13
Muswellbrook Rodeo
R3 Bull Ride
$297.25
07/12/13
Moss Vale Rodeo
R3 Bull Ride
$224.00
15/02/14
Goulburn Rodeo
R3 Bull Ride
$292.50
28/02/14
Mudgee Show Rodeo
R3 Bull Ride
$138.00
Total Event:
$951.75
The document indicates that Mr Gajkowski earned a total of $3,609.70 in prize money between July 2012 and February 2014. The bulk of those earnings were earned at the Cooma Rodeo on 8 February 2014 ($1,290), where according to Mr Clifford’s evidence he was the only competitor.
In his second statement, Mr Jones added, by way of clarification of the process and the relationship with CSS, that ABCRA:
“… exists as an organisation whose primary stake holders are the individual promoting committees. Those committees, of which the Camden Show Society is one, stage and run their events independent of ABCRA in that ABCRA has no control over the event other than to ensure that rules and regulations are met prior to the staging of the event.”
Mr Jones added:
“ABCRA offers a central point of entry service for which the competitors pay an administration fee to use the facility. There are also certain levies that are payable by the competitor in relation to stock and trophies. There are also administration levies payable to ABCRA by the committee in providing administrative services. Once entries are taken and receipted all further dealings in relation to the competitor and event are between the promoter being the committee and the competitor.”
Jeffrey Edwards
Mr Edwards provided a signed statement of evidence dated 1 November 2016. Mr Edwards was active in the sport of bull riding for many years. He was successful in winning the Southern Rodeo Zone Association bull riding championship on five occasions. He won the Canadian title in 1987 and 1988 and competed in El Paso Texas in 1987 and 1988 as a member of the Australian team.
Mr Edwards said that prize money for each event depended on what was “put in” at each individual rodeo. This included prize money based on entry fees paid by competitors and a proportion of the entry fees. He said:
“The prize money can vary depending on the event but at a normal rodeo a winning ride would yield $700–$800 in prize money, second place about $500 and then lesser amounts down to fifth place which would normally yield prize money of about $100. This is approximations only, the prize money varies from each rodeo.”
Mr Edwards stated that it is normal practice after paying the entry fee that the competitor is given credit for $25 for payment made at the gate to enter into the showground. Mr Edwards added that whilst competitors earn points at each event, ABCRA “don’t pay anything on the points that are accumulated in the 12 months, the money is purely by prize money at each particular show”.
Kevin Cooper
Mr Cooper is an experienced rodeo competitor and judge. He was judging the competition on 4 April 2014. In a statement dated 11 June 2016, he stated:
“The relationship between the Camden Show and the Australian Bushman’s Camp Draft and Rodeo Association ABCRA is that the Camden Show has to follow the regulations of the ABCRA. The ABCRA gives the Camden Show a list of regulations that have to be followed. The regulations state the height of the arena, that it is ploughed, which is was [sic]. There are a lot of rules. I believe from what I saw as a judge the Camden Show they had abided by the rules. There was about thirty bull rides that day. It could have happened to anyone.
The way it worked was the Camden committee put a rodeo on their program and then they facilitate it with the ABCRA. So the way it works is that if a show wanted to run a rodeo they would contact the ABCRA to run it according to ABCRA rules. Camden has run this rodeo over twenty years they are experienced with it. They are a good committee which runs good shows.
You have to enter the rodeo through the ABCRA. You make an application then when you arrive you pay an entry fee to the rodeo committee when you get to the rodeo. That is the Camden show committee takes the entry fee. He was not specifically invited he just entered, Mitchell GASKOWSKI (JUDD) had to be a ABCRA member to ride in the rodeo. The Camden committee would not let anyone ride that wasn’t a member. The membership details come from the ABCRA head office. The way we work is that people have a membership with the ABCRA to enter any rodeo. The ABCRA gives those registration details to the rodeo committee of the Camden Show. It is the Camden Show rodeo committee that takes a fee.”
FRESH EVIDENCE
In a reply filed by ABCRA in response to CSS’s Notice of Opposition, ABCRA seeks leave to rely on new evidence being a further statement of Mr Jones dated 16 October 2017. The application is made pursuant to s 352(6) of the 1998 Act.
Submissions on the application to rely on fresh evidence
ABCRA submits that the ‘new evidence’ is needed to clarify the evidence concerning the financial arrangements between ABCRA and CSS for the rodeo event at the Camden Show. It submits that some of the existing evidence is “imprecise and misleading”. This imprecision has led to factual errors on the part of the Arbitrator and is relied upon to support submissions on appeal which do not reflect the underlying facts. ABCRA relies on this evidence in support of its submission that CSS “retained a high degree of control over the event”. The evidence is relevant, or said by ABCRA to be relevant, to the question of whether ABCRA conducted or held the event.
To illustrate the need for clarification, CSS submits that ABCRA obtained the fees for participation in the rodeo event and retained a share of the fees obtained. Mr Gajkowski also submits that the Arbitrator’s finding that ABCRA shared in competition entry fees of competitors is supported by the evidence concerning “the interconnectedness between the amounts received and paid on various bases by the Society and the Association”[1].
[1] Citing Mr Gajkowski’s submissions in Notice of Opposition to A2-644/17.
ABCRA submits that CSS’s submissions, referred to above, are based on an incorrect premise, namely that ABCRA was entitled to competition fees and retained them. That conclusion, so it is submitted, has probably been drawn from the evidence of the Chairman of the rodeo subcommittee for CSS, Mr Sharpe, who stated that the “dividing and distribution of the competition fees is a complex process” and/or the evidence of CSS President, Mr Southwell, who stated that CSS reimburse ABCRA for late entry fees. Mr Jones’ statement of 16 October 2017 provides an explanation of the arrangements which demonstrate that the evidence that the President and the Chairman is consistent with the existing evidence of the competition fees are retained by CSS and not ABCRA.
The purpose of the power to admit new evidence on appeal under s 352(6) of the 1998 Act is to allow the Commission to admit further evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.[2]
[2] Citing New South Wales Local Network v Heggie [2013] NSWCA 255 (Heggie), at [66].
The additional evidence which ABCRA seeks leave to rely on is likely to demonstrate that the Arbitrator’s decision was factually erroneous. It clarifies discrepancies and ambiguities in the evidence which has led the Arbitrator to form the view that ABCRA had an active role in organising the rodeo at the Camden Show, when in fact it did not.
ABCRA submits that the failure to grant leave would cause ”substantial injustice” because critical issues on appeal are whether ABCRA was conducting or holding the rodeo event. Further, ABCRA submits that in the event that its statutory construction arguments are not accepted its liability should be less than that of CSS.
It is not anticipated that the new evidence would be contentious, nor is the credit of any witness in issue. The new evidence simply explains existing evidence which is less than clear and will probably assist the Commission.
In circumstances where no witnesses gave oral evidence before the Arbitrator, it is in the interest of justice that Mr Jones’ statement be admitted on appeal. The admission of this new evidence is consistent with the objectives of the Commission, to which its members must have regard, being “to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts”[3].
[3] Citing the 1998 Act, ss 367(1)(a), 367(2).
Mr Gajkowski opposes the application. He submits that the proposed evidence is merely sought to clarify the existence of the evidence. He further submits that ABCRA has not established substantial injustice.[4] CSS initially opposed the application, but ultimately withdrew its opposition.
[4] Transcript of Appeal Proceedings of 21 November 2017 (T), T 86.8.
Consideration
Fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The operation of s 352(6) was dealt with in CHEP Australia Limited v Strickland[5]. Acting Justice Barrett identified the two threshold questions raised by the sub-section, “as alternatives”. The first limb of the test concerns the issue of availability of the evidence in advance of the proceedings.[6]
[5] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
[6] Strickland, at [27], [31] (Barrett JA, Macfarlan JA agreeing).
Mr Jones is the executive officer of ABCRA. Mr Jones provided two statements of evidence, dated 18 May 2015 and 9 June 2015 that were before the Arbitrator and admitted into evidence. I infer that he was readily available to ABCRA and its legal advisors for the purpose of providing a statement of evidence. There has been no suggestion to the contrary. No reason has been advanced as to why the evidence clarifying the arrangements between ABCRA and CSS could not have been included in his first or second statement. It follows that the evidence in Mr Jones’ statement of 16 October 2017 was available and could have reasonably been obtained before the arbitration proceedings. Therefore, the first limb of the test in Strickland cannot be satisfied. In any event, in oral submissions, the appellant’s counsel, Ms Lucy, conceded that she could not rely on this limb.[7]
[7] T 68.19.
The second limb of the test concerns whether the “failure to grant leave would cause substantial injustice in the case”. In Strickland, Barrett JA said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[8]
[8] Strickland, at [30]-[31].
ABCRA argued that the correct test for the admission of fresh evidence is not whether the evidence would have altered the result but rather whether the evidence, if accepted, would have been likely to demonstrate that the decision appealed against was affected by error. That was the argument that was considered and expressly rejected in Strickland.
In oral argument ABCRA’s counsel, Ms Lucy directed attention to Barrett JA’s remarks in Strickland, where his Honour said:
“The power of the appellate tribunal upon such an appeal is a narrow power to correct operative error of fact, law or discretion. The power of the Presidential member to admit further evidence (subject to satisfaction of one of the statutory pre-conditions) was therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was affected by such error: Northern NSW Local Health Network v Heggie [2013] NSWCA 255 [(Heggie)] at [66].”[9]
[9] Heggie, at [34].
As can be seen from the above extract, Barrett JA was discussing the power to admit fresh evidence in the context of the Commission’s powers on appeal, namely “a narrow power to correct operative error of fact, law or discretion.” Similar observations were made by Sackville AJA in Heggie.[10]
[10] Heggie, at [66].
Ms Lucy argued that the remarks by Barrett JA at [30]-[31] and [34] are inconsistent and “would have to be reconciled.” I disagree. His Honour was discussing, on the one hand, the manner in which the statutory pre-conditions to the admission of such evidence should be applied, and, on the other, the requirement for fresh evidence on appeal to reveal an operative error.
The need for the fresh evidence, so it is submitted, is to clarify the evidence concerning the financial arrangements between ABCRA and CSS. Mr Jones’ statement goes significantly further than merely clarifying its financial arrangements with CSS. It also seeks to clarify the arrangements regarding the central entry system for potential competitors and the affiliation arrangements between the two organisations.
In so far as Mr Jones’ evidence touches on the financial arrangements between CSS and ABCRA, he states that, contrary to the Arbitrator’s finding, ABCRA did not retain any of the entry fees paid by competitors in the 2014 rodeo. Unhelpfully Mr Jones’ evidence failed to expose with any precision the financial arrangements between the two organisations. It is accepted that there is a formula to be applied to determine the fees payable to ABCRA for its involvement with the rodeo. However, neither party led evidence as to the relevant formula or how it was applied in this instance. In oral argument, neither party was able to confirm the quantum of the competition fees retained by CSS or the quantum of fees paid to ABCRA.
However, the arrangements with respect to the entry fees were comprehensively dealt with by Mr Cooper’s evidence. Mr Cooper’s unchallenged evidence is that, contrary to the Arbitrator’s finding, the entry fees were retained only by CSS.
Mr Sharpe’s evidence is that ABCRA was paid a levy based on the number of competitors. He stated, in his statement of 28 May 2015, that:
“The dividing and distribution of the competition fees is a complex process. ABCRA send through a form to determine this process. The Camden Show Society provides the ABCRA with any membership payments that were paid onsite at the Camden Show. After the event we complete a ‘Rodeo Reconciliation Statement’. This statement calculates the levies to be paid to ABCRA based on competitor numbers.”
Mr Southwell said that ABCRA was paid $350 to conduct the rodeo in addition to the annual affiliation fee of $110.
For the purpose of clarifying the arrangements between ABCRA and CSS concerning the payment of prize money, CSS conceded it was responsible for the payment of prize money.[11] This concession clarified that ABCRA made no contribution to the prize money and had no control over its distribution.
[11] T 87.18.
Given CSS’s concession that it was solely responsible for the payment of prize money and the unchallenged evidence that all entry fees were retained by CSS, subject to a small fee being paid by ABCRA for its services, the purported fresh evidence adds nothing to the evidence already before the Commission dealing with the financial arrangements between CSS and ABCRA. It follows that there cannot be any substantial injustice by the failure to grant leave for the admission of Mr Jones’ statement of 16 October 2017.
For these reasons the application to admit fresh evidence on appeal is rejected.
THE LEGISLATION
Clause 9 of Sch 1 to the 1998 Act provides:
“9 Jockeys and harness racing drivers
(1)A person who:
(a) is engaged to ride a horse for fee or reward at a meeting for horse racing conducted or held by a racing club or association, or
(b) drives a horse at a meeting for harness racing conducted or held by a racing club or association and at which betting is allowed, or
(c) is engaged in riding work in connection with horse racing (but not harness racing) on the racecourse or other premises of a racing club or association,
is, for the purposes of this Act, taken to be a worker employed by the racing club or association.
(2)Subclause (1) does not apply to a racing club or association having its headquarters in a town with a population not exceeding 3,000 people if:
(a) the meetings of the racing club or association are conducted or held within a radius of 8 kilometres from the town, and
(b) the profits derived from the operations of the racing club or association are applied for charitable purposes.
(3)For the purpose of assessing the compensation payable to a person to whom this clause applies, the "average weekly earnings" of the person are:
(a) to be calculated in such manner (if any) as may be prescribed by the regulations, or
(b) if the person was not working under contract of service--to be calculated in such manner as the Commission considers to be reasonable in the circumstances.
(4)The regulations may make provision for or with respect to the exemption of any class of persons from the operation of subclause (1) (b).”
Clause 15 of Sch 1 to the 1998 Act provides:
“15 Boxers, wrestlers, referees and entertainers
(1) A person engaged for fee or reward to take part:
(a) as a boxer, wrestler or referee in any public boxing or wrestling contest in a stadium or place to which the public is admitted on payment of a fee or charge, or
(b) as a boxer, wrestler or referee in any boxing or wrestling contest in or on premises subject to a club licence under the Liquor Act 2007, or
(c) as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge, or
(d) as an entertainer in any performance in or on premises subject to a club licence under the Liquor Act 2007,
is, for the purposes of this Act, taken to be a worker employed by the person conducting or holding the contest or public or other performance.
(2) A person who takes part in a genuine amateur contest or performance conducted or held by a person who holds or is taken to hold an authority granted under the Charitable Fundraising Act 1991, is not, for the purposes of this clause, taken to be engaged for fee or reward only because a trophy or certificate is offered or awarded as a prize in the contest or performance.
(3) A person excluded from being a worker because of paragraph (d) of the definition of worker in section 4 (1) is taken not to be a person referred to in subclause (1) (c) or (d).
(4) If 2 or more persons conduct or hold a contest or public or other performance, those persons are liable to contribute to any compensation payable under this Act for the injury in such proportion as, in default of agreement, the Commission determines.”
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator noted that there was no dispute as to the facts leading to Mr Gajkowski’s injury on 4 April 2014 and its consequences. Nor is it disputed that Mr Gajkowski is totally incapacitated.
The main issue before the Arbitrator was whether Mr Gajkowski is entitled to workers compensation benefits a as deemed worker pursuant to cl 15 of Sch 1 to the 1998 Act, and, if so, whether CSS and ABCRA is liable for the claim jointly or otherwise. The other issues concerned Mr Gajkowski’s entitlement to weekly compensation and medical expenses.
The Arbitrator set out the facts upon which his analysis was based, namely:
“(a) Mr Gajkowski was a member of the ABCRA;
(b) Mr Gajkowski was active, accomplished, and successful on the Australian bull- riding circuit;
(c) Prize money was won by the top five of eight riders in the event;
(d) Mr Gajkowski had won substantial amounts from the prize money on the circuit, wining approximately 60 to 70 per cent of the time; sometimes winning $3,000.00 or $4,000.00 for a single ride;
(e) An entry fee was required of the riders;
(f) The prize money was substantially provided by local business sponsors and local rodeo associations;
(g) A proportion of the entry fee of the competitors was also applied to the prize money;
(h) Mr Gajkowski had planned to continue to enhance his reputation and expected to move on to compete on the US professional bull riding circuit;
(i) Mr Gajkowski competed for the prize money and to gain exposure and publicity to advance his rodeo career in order to earn a good income from the activity.”[12]
[12] Gajkowski v The Camden Show Society Inc [2017] NSWWCC 124 (Reasons), at [33].
The Arbitrator found there was little guidance to be obtained as to the meaning of “fee or reward” from authorities dealing with cl 9 of Sch 1 to the 1998 Act which is concerned with the deemed employment of jockeys. That was because, as the Arbitrator reasoned, jockeys are in a different category because riding as a jockey “usually involves a base amount for a losing ride, increased for a win or place, although the precise amount to be received for a win is often not known in advance”.[13]
[13] Reasons, at [34].
The Arbitrator further held:
“However, to limit the definition of ‘fee or reward’ for an entertainer like Mr Gajkowski to a guarantee of a cash payment as with jockeys would be to place a Clause 9 hobble on Clause 15 before it can proceed to do its work in covering the activities it was drafted for.”[14]
[14] Reasons, at [35].
The Arbitrator found little assistance from the meaning of “fee or reward” in cl 15(2) of Sch 1 concerning participation in an amateur performances or contest under the Charitable Fundraising Act1991. He found that for the purposes of cl 15(2) of Sch 1, the provision of a trophy or certificate offered or rewarded as a prize did not constitute a fee or reward.
The Arbitrator observed that:
“Clause 15 is more flexible than a requirement that there be a guarantee of a monetary payment. Otherwise the terms ‘fee’ and ‘reward’ have virtually the same meaning.”[15]
[15] Reasons, at [39].
The Arbitrator held that the opportunity for Mr Gajkowski to win substantial prize money and the opportunity to further his career, from the exposure of his skills at the rodeo and publicity arising from it gave “substance to the reward of a higher level than a mere awarding of a trophy or certificate”.[16] Whilst there was no guarantee of winning prize money or enhancing his riding reputation, there was evidence that Mr Gajkowski earned substantial sums from participating in the rodeo circuit. The Arbitrator concluded that the opportunity for prize money and the advancement of his career constituted a “reward” for the engagement.
[16] Reasons, at [40].
The Arbitrator also held that there was a clear process of “engagement”.[17] He found that Mr Gajkowski was part of an arrangement which gave him the “reward” of the opportunity to win prize money and for other longer term benefits. The organiser’s had the benefit of the bull riding attracting members of the public to pay an entry fee and enjoy the entertainment afforded by the event. Mr Gajkowski was to participate in the senior bull riding event, subject to the approval of ABCRA.
[17] Reasons, at [41].
Further, the Arbitrator distinguished the decision in Brady v Upper Hunter P&A Association.[18] This was on the basis that, unlike the facts in Brady where the arrangements in respect of jockeys riding at a race meeting were “extremely casual”, Mr Gajkowski was riding bulls as part of a circuit with “well-known and strictly supervised entry requirements and a clear hierarchy for prize money”[19].
[18] [1954] WCR 95 (Brady).
[19] Reasons, at [41].
The Arbitrator expressed his conclusion:
“There was a well-established constructive agreement between Mr Gajkowski (and his fellow riders) and the organisers to perform his skills riding an animal for the entertainment of the crowd and in return he was afforded the opportunity to win prize money and to progress towards his goal of making a good living on the lucrative US circuit. I find that this constitutes a ‘fee or reward’ for the purposes of Clause 15.”[20]
[20] Reasons, at [42].
On the issue of whether Mr Gajkowski was an entertainer, the Arbitrator referred to Newstead v Gulgong RSL Club Ltd[21]. He held that, unlike the facts in Newstead, Mr Gajkowski was not in the background of a performance but was the centre of attention in riding bulls. The Arbitrator described this, in the words of Mahoney AP, as “affording diversion or amusement”. The Arbitrator held that the event attracted patrons “as a spectacle of ‘cowboys’ attempting to ride bucking bulls and horses for eight seconds”[22]. He added that a rodeo was a “public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge”. This, he held, was “undoubtedly” entertainment in the ordinary meaning of the word as adopted in Newstead.
[21] (1995) 12 NSWCCR 102 (Newstead).
[22] Reasons, at [46].
The Arbitrator found that CSS and ABCRA engaged Mr Gajkowski to ride bulls “affording diversion or amusement” for the patrons in a public performance.[23] In return, Mr Gajkowski obtained an opportunity to accumulate prize money and advance his career. For those reasons, the Arbitrator found that Mr Gajkowski was performing as an entertainer for the purposes of cl 15 of Sch 1 to the 1998 Act.
[23] Reasons, at [46] (citing Newstead).
The Arbitrator considered Bushby v Morris[24] and Taren Point Bowling and Recreation Club Limited v Shapter[25] and stated that “two or more entities may be liable for payment of compensation where there are injuries in or around public performances”.[26] He also considered GIO General Ltd & Others v Blacktown RSL Club Ltd[27] and State Compensation Board (NSW) v Anastassiadis[28].
[24] [1980] NSWLR 81.
[25] [1982] 1 NSWLR 219 (Taren Point).
[26] Reasons, at [60].
[27] (1996) 13 NSWCCR 668 (Blacktown RSL).
[28] (1986) 2 NSWCCR 1.
The Arbitrator found that the involvement of ABCRA and CSS each was much greater than that of the clubs in Taren Point, Blacktown RSL and Anastassiadis. He found that the respondents’ responsibilities included the following elements:
“(a) Each respondent contributed to the prize money, and shared in the competition entry fees of competitors;
(b) The competition fee level was set by the Show Society;
(c) The ABCRA kept records and lists of the riders and determined the events that could be held and the riders who were permitted to compete;
(d) All riders were required to be pre-registered with the ABCRA;
(e) The Show Society was affiliated with the ABCRA by payment of an annual fee;
(f) The affiliation fee covered advertising the annual Show rodeo in the ABCRA magazine;
(g) The Show Society had a Rodeo sub-committee to organise the rodeo at Camden Show including setting up the arena;
(h) The ABCRA provided the judges, protection clowns, and other specialist workers through providing the Show Society with an approved list, and these specialists were paid by the Show Society;
(i) The ABCRA controlled which rodeo events could take place and notified the Show Society as to these;
(j) Decision-making as to the effects of weather and if events proceeded were made jointly by the Show Society and the ABCRA officials at the event;
(k) The Show Society arranged the rodeo stock through stock contractors, but the stock contractors had to be approved by the ABCRA;
(l) The Show Society recruited volunteer workers who assisted in the rodeo office, set up advertising banners, and assisted generally around the rodeo yards with stock;
(m) The ABCRA office arranged the competitors appropriate the chosen events from their records, providing the Show Society with a list approximately five days prior to the rodeo event.”[29]
[29] Reasons, at [63].
The Arbitrator found that CSS and ABCRA were significantly involved in holding and conducting the rodeo. He held that it was “not a clear-cut case of one ‘holding’ the event, and the other ‘conducting’ it.”[30] It followed that both were equally liable for the compensation payable.
[30] Reasons, at [64].
The Arbitrator noted that there was no issue as to the extent of Mr Gajkowski’s injury for which he was totally incapacitated for any form of employment.
The Arbitrator found Mr Gajkowski to be a worker pursuant to cl 15(1)(c) of Sch 1 to the 1998 Act. He entered an award for Mr Gajkowski for weekly compensation from 7 July 2014 to date and continuing and for medical expenses pursuant to s 60 of the 1987 Act. He found CSS and ABCRA equally liable for payment of the compensation awarded.
ABCRA’S GROUNDS OF APPEAL
ABCRA alleges that the Commission erred in finding that:
(a) Mr Gajkowski is taken to be a worker pursuant to cl 15(1)(c) of Sch 1 to the 1998 Act by:
(i)misconstruing the term “engaged” in cl 15(1) and failing to consider whether the respondent was contractually bound to take part as an entertainer in any public performance;
(ii)misconstruing the term “reward” in cl 15(1) by wrongly finding that it included the opportunity to win prize money or the opportunity to advance one’s career by participation in a competition, and
(iii)misconstruing the term “entertainer in any public performance” in cl 15(1)(c) by failing to find that it refers to a person who participates in a performance with an aesthetic element, and not to a person competing in a sporting event.
(b) ABCRA is a person who conducted or held a public performance, and
(c) ABCRA and CSS are liable equally for the payment of the compensation awarded.
GROUND ONE
Alleged misconstruction of the word “engaged”
ABCRA’s submissions
ABCRA submits that the Arbitrator erred by failing to consider whether there was a legally enforceable contract between Mr Gajkowski and either ABCRA or CSS, or both, requiring Mr Gajkowski to ride a bull.
The Arbitrator considered the composite phrase “engaged for fee or reward” focusing on the meaning of the word “reward”. He did not explicitly consider whether there was a binding contract between the parties.
The Arbitrator assumed that Mr Gajkowski had been “engaged” without discussing the meaning of the term. The Arbitrator focused on the potential benefits to Mr Gajkowski and “the organisers” in what he described as “an arrangement” or a “well-established constructive agreement”.[31]
[31] Citing Reasons, at [41] and [42].
Even if it were to be accepted that there was a legally enforceable contract which entitled Mr Gajkowski to participate in the bull riding competition, the Arbitrator did not consider a necessary element of the “engagement” being the obligation to perform work.
For cl 15 to apply, there must be a legally enforceable contract between the person claiming to be a deemed worker and the person alleged to be the deemed employer. Further, the contract must require the performance of work by the person claiming to be a worker. In Parsons, this was a “promise to ride” a horse but in this case there was no promise on Mr Gajkowski’s part to ride a bull.
There was no legal obligation that Mr Gajkowski compete in the bull riding competition and he made no promise to ride. Even if the Commission were to find that Mr Gajkowski had promised to ride a bull, this promise was not made “in return for a consideration in money or money’s worth”.[32] Rather, through the payment of the competition fee, Mr Gajkowski gained an opportunity to win prize money (which is neither money nor money’s worth). Further, the opportunity to progress his career, as the Arbitrator found, was not consideration for payment of the entry fee. The entry fee was the same for all entrants; their individual goals were irrelevant to the construction of the contract.
[32] Citing Parsons v Southern Tableland and South Coast Racing Association 1 NSWLR 47 (Parsons).
It is submitted that the Arbitrator erred by failing to follow Parsons and by failing to apply the principle of statutory construction that, in the absence of a good reason to the contrary, words in the statute are intended to be used with a consistent meaning. Had the Arbitrator applied that principle, it is submitted, he would have recognised that the expression “engaged for fee or reward” is to be interpreted consistently in cl 9 and cl 15 of Sch 1 to the 1998 Act.
The jockey cases, which the Arbitrator declined to follow were therefore relevant and biding on the Commission in its construction of cl 15. In particular, the Commission was bound by Parsons and its conclusions that the expression “engaged to” when coupled with “for fee or reward” denotes a legally binding contract required by the putative worker to do the work.
Had the Arbitrator construed the word “engaged” correctly, he would have found that Mr Gajkowski was not engaged for a fee or reward to compete in the bull riding competition.
Mr Gajkowski’s submissions
ABCRA’s submission that the Arbitrator failed to consider whether there was a legally enforceable contract between Mr Gajkowski and ABCRA, or CSS, is incorrect.
The Arbitrator found that there was an agreement between Mr Gajkowski and the organisers.[33] In his written submissions Mr Gajkowski submitted, the notion of ‘engagement’ requires only “a commitment or obligation either legal or moral made antecedently to the performance of the act in question”[34]. However, at the oral hearing his counsel, Mr Reynolds, conceded that there must to be an agreement for valuable consideration if cl 15 is to be satisfied.
[33] Citing Reasons, at [42].
[34] Citing Parsons, at [50].
ABCRA’s second submission is that there was no ‘engagement’ because there was no “commitment or obligation either legal or moral made antecedently to the performance of the act in question”[35]. Mr Gajkowski submits that the difficulty with this submission is the Arbitrator found that there was an agreement between him and the organisers “to perform his skills riding an animal for the entertainment of the crowd”[36]. Therefore, it is submitted that, it is not correct to say that the Arbitrator found that Mr Gajkowski was under no obligation to perform any work. Although there may be implied terms in the contract whereby the rider did not have to ride if there was a danger to his health, this does not detract from the legal and moral obligation to perform the work of riding.
[35] Citing Parsons, at [50].
[36] Citing Reasons, at [42].
Mr Gajkowski further submits that ABCRA’s submission that there was no engagement because the promise to ride the bull was not made “in return for a consideration in money or money’s worth” is misconceived. The Arbitrator found that in return for riding a bull, Mr Gajkowski “was afforded the opportunity to win prize money, accordingly, so it is submitted, the obligation to ride was made” in return for a consideration in money or money’s worth.” The provision of such an opportunity “is valuable consideration at law”.
ABCRA’s reply to Mr Gajkowski’s submissions
The Arbitrator’s finding (at [42]) that there was an agreement does not amount to a finding that there was a legally enforceable contract. ABCRA submits that it’s likely that, by “constructive agreement”, the Arbitrator meant that it could be deduced or inferred that there was an agreement between the riders and the “organisers”. It is submitted that finding that that sort of agreement exists falls well short of making a finding that there was a legally enforceable contract in place.
The loose language the Arbitrator uses (“riders” and “organisers”) indicates that he was not contemplating a contract between the parties. Further it is submitted that it is not clear whether the “organisers” refers to both CSS and ABCRA or just CSS (which organised the event). The Arbitrator does not indicate whether he considers that both ABCRA and CSS are parties to the one agreement with Mr Gajkowski or whether there are different agreements between Mr Gajkowski and each of them, or whether there is only one “constructive agreement”, between Mr Gajkowski and CSS. ABCRA submits that this suggests the word “agreement” was used in its ordinary, colloquial sense, and did not refer to a contractual agreement.
Another reason why a finding that there was an “agreement” is to be differentiated from a finding that there was a contract is that, in order for there to be a binding contract, it is necessary that the parties intend to enter legal relations.
The variable amount of any prize money, and the lack of obligation of CSS (which paid the prize money) to pay any particular amount, are factors which indicate that there was no intention to enter into legal relations. ABCRA did not provide the prize money to winners, so there could be no intention on the part of ABCRA to enter into legal relations with riders in relation to the opportunity to win prize money.
It is submitted that, in these circumstances, the finding that there was an “agreement” should not be construed as a finding that there was a contract. In the alternative, if it is found that by “agreement” the Arbitrator meant “contract” then the Arbitrator erred in failing to consider whether the parties intended to enter into legal relations.
ABCRA submits that it does not follow that because Mr Gajkowski was afforded an opportunity to win prize money that the obligation was made in return for consideration in money or money’s worth. The opportunity to win prize money did not constitute consideration rather, so it is submitted, CSS provided illusory consideration. It reserved an option as to whether or not it performed the putative “promise” of providing prize money to winners and also reserved a discretion as to how much it would provide.
In Placer Development Pty Ltd v The Commonwealth[37] Kitto J said:
“wherever words which by themselves constitute a promise are accompanied by words showing that the promisor is to have discretion or option as to whether he will carry out that which purports to be the promise, the result is that there is no contract on which an action can be brought at all.”[38]
[37] Citing (1969) 121 CLR 353 (Placer Development).
[38] Citing Placer Development, at 356.
His Honour concluded that “a promise to pay such subsidy if any as may be decided upon from time to time” did “not create any contractual obligation”.[39]
[39] Citing Placer Development, at 357.
In this case, there is no “promise” to pay prize money, rather, there was a mere expectation that prize money would be given to the winner. Even if there were a promise, the discretion of CSS as to how much it would pay, meant that there was no contract between it and any of the riders. It submitted that there is no basis for finding a contract requiring Mr Gajkowski to ride existed between him and ABCRA, as ABCRA never paid any competitors any prize money or represented that it would.
It submitted the case here is on all fours with Parsons. Any prize money was paid by way of gratuity, variable and at the discretion of CSS. The arrangement between Mr Gajkowski and CSS “did not enter the field of contract”[40]. Still less did any arrangement between Mr Gajkowski and ABCRA, concerning him riding in the Camden Show rodeo, enter that field.
[40] Citing Parsons, at 51D.
CSS Submissions
CSS agrees with and adopts ABCRA’s submissions.
Consideration
It is useful to commence this consideration with a restatement of some of the principles of statutory construction.
The plurality in Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue[41] said (omitting footnotes):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to the legislative intention. The meaning of the text may require a consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[42]
[41] [2009] HCA 41; 239 CLR 27 (Alcan).
[42] Alcan, at [47].
The general principles governing statutory construction were restated by French CJ (as his honour then was) and Hayne J in Certain Lloyd’s Underwriters v Cross[43]. In Miles v SAS Trustee Corporation[44], Sackville AJA said that there was “no dispute” about the application of these principles. His Honour said (omitting footnotes):
“For present purposes it is important to emphasise that the task of statutory constructions begins with a consideration of the text itself. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the Act. Accordingly, the meaning of the text may require a consideration of the context, including the general purpose and policy of the provision. However, the purpose of a statute ‘resides in its text and structure’. Moreover, the purpose of legislation must be derived from what the legislation says, not from any assumption about what is thought to be the desirable result.”[45]
[43] [2012] HCA 56; 248 CLR 378, at [23]-[26].
[44] [2017] NSWCA 86 (Miles v SAS).
[45] Miles v SAS, at [53] (Payne JA agreeing).
As I have indicated, at the oral hearing, Mr Reynolds conceded that in order for cl 15 to have application there must be an agreement between the putative worker and the putative employer for valuable consideration. He said:
“Yes. We’d accept for the purposes of this hearing that there has to be an agreement for valuable consideration, if that clarifies things.”[46]
[46] T 20.9.
In Parsons, Reynolds JA held that an agreement for valuable consideration must require the performance of work by the person claiming to be the worker and a promise in return for legally enforceable consideration. His Honour held:
“Doubtless, it is appropriate to say a person is engaged to ride a horse, even if there is no contract and thus no legal obligation to do so. The phrase ‘engaged to ride for fee or reward’ in its ordinary meaning is not capable of being fragmented…it is not capable of comprehending a case where a person is morally committed to ride and thus ‘engaged’ and that the rider thereafter received a reward from the other party to the commitment or a third party… In its ordinary meaning it involves a promise to ride in return for a consideration in money or money’s worth.”[47]
[47] Parsons, at 50B (Hope and Samuels JJA agreeing).
His Honour concluded, in Parsons, that even though the evidence established a pattern of providing sums to jockeys by way of gratuities, the amounts were in the owner’s absolute discretion and varied depending on whether the horse won or not. His Honour concluded that the agreement “did not enter the field of contract.”
I accept the submission that the Arbitrator failed to deal with the question of whether or not Mr Gajkowski had entered into a legally enforceable agreement. That was an error. His description of a constructive agreement, with “the organisers”, fell well short of establishing that a legally enforceable agreement had been entered into. It cannot be determined from the Arbitrator’s findings whether he found that any such agreement was with ABCRA or CSS, or both.
The prize money payable for a winning ride or a place in the rodeo was the only potential fee or reward. As CSS conceded that it was solely responsible for the payment of prize money. Therefore, if there is a legally enforceable agreement (which I do not accept for the reasons below), it could only have been with CSS as it was the entity responsible for the payment of any prize money that may have been payable.
The evidence establishes that there was an undertaking by Mr Gajkowski to ride in the rodeo event, however, he was not obliged to do so. He was free to withdraw from the rodeo if, for example, the conditions were unsuitable or the animal he had been allocated to ride was deemed unsafe. Mr Reynolds argued that such matters did not negate the finding of a legally enforceable contract of engagement, they merely indicated an implied term of contract which would enable Mr Gajkowski to withdraw from the event without penalty. I do not accept that submission. The evidence does not support the finding of a legally enforceable agreement for the following reasons.
First, although there was an expectation of prize money being payable to the winning rider or a placegetter, the amount of the prize money was variable and in the discretion of CSS.
Mr Reynolds argued that the payment of prize money was not discretionary in that there was a “formula” which determined the extent of the prize money that would be offered. If there was such a formula, it is not in evidence.
The evidence merely established that CSS paid the prize money. The amount of any prizemoney varied from rodeo to rodeo. Ms Judd said that “some wins were lucrative” and some payments were “cash in hand”. Mr Southwell said that Mr Gajkowski “may have been paid prize money”. Mr Edwards said prize money depended on what was ‘put in’ at each individual rodeo, meaning that the prize pool available for distribution varied depending on the entry fees and competition fees collected.
Applying Parsons, the variable and discretionary nature of the prize money payable is strongly against a finding that there was an agreement for valuable consideration in place between Mr Gajkowski and ABCRA or CSS, or both. Therefore, there could be no legally enforceable agreement.
Mr Reynolds argued in support of the contention that there was a legally enforceable contract that Mr Gajkowski would have an enforceable right to recover any prize money to which he was entitled. I do not accept that submission. He argued that any such entitlement could be calculated by reference to the “formula” for calculating prize money. However, as I have said there is no formula in evidence and the only evidence there is in relation to the payment of prize money demonstrates that it was variable and paid by CSS in amounts that were within its discretion.
Parsons, which is binding authority on the Commission, held in relevantly similar circumstances that such an agreement did not amount to an agreement for valuable consideration and therefore any agreement between the parties fell well short of a legally enforceable agreement. It has not been submitted that Parsons was wrongly decided and no valid reasons have been advanced to distinguish it.
For these reasons, I conclude that Mr Gajkowski’s agreement to participate in the rodeo was not an agreement for valuable consideration.
It follows that the Arbitrator erred in concluding that at the time of his injury Mr Gajkowski was “engaged” within the meaning of that term in cl 15. If I am wrong and Mr Gajkowski had been engaged, I now turn to the meaning of “engaged for fee or reward”.
The meaning of “engaged for fee or reward”
ABCRA’s submissions
The Arbitrator misconstrued the term “reward” when he found it to be more flexible than a guarantee of a monetary payment and when he found that it extended to an opportunity for Mr Gajkowski to win prize money, to advance his riding career and to progress towards his goal of making a good living on the lucrative US circuit.[48]
[48] Citing Reasons, at [39]-[40].
The words of cl 15 of Sch 1 to the 1998 Act are to be construed according to their natural and ordinary meaning.[49] The primary meaning of “reward” in the Macquarie Dictionary is “something given or received in return or recompense for service, merit, hardship, etc”. In context, it is submitted that the word “reward” in cl 15(1) is clearly intended to extend deemed workers to include not only those who are paid a monetary sum, but those who receive some form of non-monetary payment for their services.
[49] Citing Western Australian Planning commission v Southregal Pty Ltd [2017] HCA 7, at [91]; Cody v J H Nelson Pty Ltd (1947) 74 CLR 629, at 647; Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14, at [42]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50, at [34].
It is not correct that the terms “fee” and “reward” have virtually the same meaning, unless “reward” was construed to mean a monetary payment for which there was no guarantee. The Arbitrator’s conclusion that the term “reward” encompasses the possibility of a reward, or the opportunity to gain a reward, reads words (“the possibility of a” or “the opportunity to gain a”) into the provision. Words can only be read into a statutory provision in very limited circumstances which do not apply in the circumstances of this case. The Arbitrator therefore erred in finding that the “opportunity for prize money and to advance [Mr Gajkowski’s] riding career constitutes a ‘reward’ for the engagement”[50].
[50] Citing Reasons, at [40].
The Arbitrator also erred to the extent that he took into account Mr Gajkowski’s personal circumstances when determining whether he was engaged “for fee or reward” to take part as an entertainer in a public performance. It was irrelevant whether Mr Gajkowski frequently won prize money in competitions or derived other personal benefits.
The terms of the contract (engagement) between Mr Gajkowski and either ABCRA or CSS concerning the bull riding competition are to be determined objectively and are the same for him as any other competitor. The Arbitrator’s construction was contrary to binding authority. In Parsons the New South Wales Court of Appeal held, in relation to an equivalent provision, that a promise to ride in return for consideration in money or money’s worth was required. Even if the events establish that Mr Gajkowski had promised to ride, the consideration offered in return was neither money nor money’s worth. Rather, it was the tenuous and contingent possibility of winning prize money. That possibility was not a reward.
The Commission has found in relation to an earlier equivalent provision that it is not enough that the payment is promised only for a win for a person to be engaged to ride in a race for “fee or reward”.[51] There is no relevant distinction with the present legislation and that decision should have been followed.
[51] Citing Morris v Moonbi All Heights Racing Club [1937] WCR (NSW) 113 (Morris).
Mr Gajkowski also made an argument, not considered by the Arbitrator, that the refund of the entry fee to the show constituted a reward. Such a refund is not a “reward to take part … as an entertainer” in a public performance. Rather, it is a right consequent upon paying an entry fee in a competition. Alternatively, it should be seen as that the entry fee for the competition included the entry fee to the show and, as Mr Gajkowski had already paid it, it was refunded.
Mr Gajkowski’s submissions
ABCRA’s submission that there was no engagement because the promise to ride the bull was not made “in return for a consideration in money or money’s worth” is misconceived. The Arbitrator found that in return for riding a bull, the rider “was afforded the opportunity to win prize money”. Accordingly, so it is submitted, the obligation to ride was made “in return for a consideration in money or money’s worth.” The provision of such an opportunity is valuable consideration at law.[52]
[52] Citing Parsons and Morris.
Morris is a decision of a single judge in relation to a different statutory provision and is neither binding nor persuasive in relation to cl 15.
CSS’s submission
CSS agrees with and adopts ABCRA’s submissions under this ground.
ABCRA’s Reply to Mr Gajkowski’s submissions
Mr Gajkowski opposes ABCRA’s submission, which he characterises as being, that in order for there to be an engagement for fee or reward there must be a guaranteed monetary payment. That is not ABCRA’s submission; rather, its submission is that “there must be a contractual obligation on the part of the employer to pay the entertainer either a fee or a reward.” For the reasons identified above, the opportunity to win prize money was not consideration. Further, ABCRA was not the entity providing prize money so, even if the opportunity to win prize money constituted a reward (contrary to ABCRA’s submissions), ABCRA was not a party to any contract in which this opportunity was afforded as consideration.
Consideration
As cl 15 is a relatively infrequently utilised provision there is limited authority on its application. The deeming provisions in Sch 1 of the 1998 Act use the expression “for fee or reward” in cl 9, relating to jockeys and harness racing drivers, and also cl 15, relating to boxers, wrestlers, referees and entertainers.
Section 6(10) of the Workers’ Compensation Act 1926 (the 1926 Act), which was in relevantly similar terms to cl 15, was discussed in Morris and Parsons. Those cases are instructive and/or binding in that they each concerned jockeys participating in horse racing in circumstances where any payment of any fee or reward was contingent upon the outcome of the race.
In Morris, Lamond J was required to construe the meaning of “fee or reward” as the term was used in s 6(10) of the 1926 Act. Section 6(10) of the 1926 Act provided:
“A person engaged to ride or drive for fee or reward in any horse or pony race run under the management of any racing club or association; or engaged, whether for fee or reward or gratuitously, in riding work on the racecourse or other premises of any such body, shall for the purposes of this Act be deemed to be a worker employed by such club or association.”
The issue in Morris was whether a promise to pay only if the jockey won the particular race satisfied expression for “fee or reward”. In that case a jockey rode in a race under an arrangement that he would receive ten shillings from the owner of the horse if it won and nothing if it lost. He was thrown from the horse and killed during the race. Judge Lamond concluded that such an arrangement did not satisfy the statutory description of “engaged whether for fee or reward. His Honour held:
“The case of Bruce v. Prosser, 35 S.L.R. 270, shows that a person may be ‘bona fide employed’ by a tenant for reward and that the ‘reward’ need not, necessarily be a money payment, but, at least it should be money’s worth. In this case the farm had a stock of ground game which the tenant wanted reduced and the only ‘reward’ he gave was to let the ‘employed’ person keep the ground game he killed, which was held a sufficient employment for reward.
The Commission would on the authority of this case be prepared to find that an arrangement such as has been indicated, to ride for a reward in certain contingencies only, would fall within the Statute, but for the words which follow relating to a person engaged in riding work ‘whether for fee or reward or gratuitously.’ In riding work, as distinct from riding in a race it seems two types of cases are provided for, viz., (1) for fee or reward or (2) gratuitously.
In the present case, the arrangement was one to ride in a race and any fee or reward depended on the result of the race.
The Commission finds that such an arrangement is a casus omissus [a situation omitted or not provided for by statute or regulation and therefore governed by common law] in the Act and that as it has not been established that the deceased was engaged to ride for fee or reward a finding should be given for the respondent on this second point.”[53]
[53] Morris, at 116.
The words “engaged to ride… for fee or reward” in s 6(10) were also considered by the NSW Court of Appeal in Parsons. The worker in Parsons was an amateur jockey who agreed to ride a horse at a picnic race meeting in Goulburn. To be eligible to ride at such meetings, amateur jockeys were required to have a permit but they were not eligible to receive a fee or payment for riding in such a race. It was accepted, however, that almost invariably, owners or trainers engaged amateur jockeys and paid them $40-$100 for a winning ride and much less for a losing ride. The worker, in that case, conceded in evidence that he didn’t know the precise amount that he would receive if the horse he was to ride won or lost. Justice Reynolds (Hope and Samuels JJA agreeing) held:
“The phrase for ‘engaged to ride for fee or reward’ in its ordinary meaning is not capable of being fragmented as was contended by the respondent.”[54]
[54] Parsons, at 50B.
His Honour held that the phrase ‘engaged for fee or reward’ means:
“In its ordinary meaning it involves a promise to ride in return for a consideration in money or money’s worth.”[55]
[55] Parsons, at 50C.
His Honour added:
“I am of the opinion that the subsection requires that an agreement to ride for valuable consideration must be established and that means a legally enforceable contract.”[56]
[56] Parsons, at 50E.
His Honour concluded:
“The meagre facts have already been recited, and I am of the view that the only reasonable conclusion that the evidence would support is that there was a practice to which owners and trainers adhered that amateur jockeys were given sums by way of gratuities, the amounts of which were in the absolute discretion of the owner and varied as to whether the horse won or not.
This practice, contrary to the rules and spirit of amateur picnic races, for obvious reasons did not enter the field of contract and is best described as the conferring of clandestine favours.
That the respondent had a high expectation of some payment and that he would have refused to ride the owner’s horses in the future, if he was disappointed, cannot make the arrangement an engagement for fee or reward.”[57]
[57] Parsons, at 51D.
His Honour held that, Mr Parsons had not been “engaged to ride … for fee or reward”.
In oral argument, Mr Reynolds argued that the decision in Morris should not be followed for several reasons. First, it was wrongly decided. Second, if it was not wrongly decided, it should not be followed because it is not the same provision under consideration here. Third, it has been overtaken by the decision of the NSW Court of Appeal in Parsons. Fourth, as a decision of a single judge the Commission is not bound by it. Fifth, the circumstances of this case are not a casus omissus, as the Commission found in Morris.
Dealing with the first of those submissions, Mr Reynolds submitted that in Morris there were no valid reasons for the conclusions reached by Judge Lamond. I do not accept that submission. As the extract referred to at [152] above demonstrates, Lamond J came to the conclusion that satisfaction of the expression “for fee or reward” did not necessarily mean a money payment but it meant at least it should be money’s worth. His Honour gave the example of a farmer who wanted his stock of ground game reduced and the only “reward” he gave was to let the “employed” person keep the game he killed. That, his Honour held, was sufficient reward for employment. His Honour distinguished that situation from a circumstance where a rider only received a reward if certain contingencies were satisfied. He reasoned that an arrangement where one was to ride in a race where the only fee or reward depended on the result was not in fact an engagement for fee or reward. He concluded that the arrangement was a casus omissus. These findings, with which I agree, more than adequately exposed the path of reasoning that led to his Honour’s conclusion. It follows that I do not accept the submission that the decision in Morris was wrong due to a lack of reasons.
CSS’s submissions
CSS submits that ABCRA’s submissions, with respect to this ground of appeal, misconceive the relationship between Mr Gajkowski, ABCRA and CSS.
The evidence of Mr Sharpe provides some information as to the relationship between ABCRA and CSS. Mr Sharpe notes the following matters:
(a)CSS pays a fee to ABCRA to allow an affiliation;
(b)ABCRA has a list of events that they allow the CSS to run;
(c)CSS must use ABCRA judges and personnel for the rodeo;
(d)the rodeo itself is conducted in accordance with ABCRA’s rules, including as to the surface used for the rodeo;
(e)CSS advertises the show in ABCRA’s magazine and lists show on its website;
(f)competition fees are fixed by CSS taking into account event prize money, trophy levy and ambulance levy;
(g)potential competitors contact ABCRA prior to the event to indicate that they will be competing;
(h)competitors must have paid their competition fees and ABCRA membership fees in order to compete;
(i)ABCRA send through a form to determine the division and distribution of competition fees, and
(j)CSS must account to ABCRA by the completion of a “Rodeo Reconciliation Statement” which determines levies to be paid to ABCRA.
Similarly, the evidence that Mr Southwell notes that:
(a)registration is undertaken through ABCRA’s website;
(b)some late entrants paid CSS to compete on the night and CSS reimburses ABCRA, and
(c)CSS pays the competitor’s prize money.
ABCRA’s submission that each role is limited to “some administrative involvement”
mischaracterizes the role of ABCRA. CSS provided the venue, ABCRA nominates which rodeo events can be held and provides its members to act as participants in the rodeo. ABCRA retained some control over the event in terms of the manner in which the event was conducted, including which personnel could be used as well as the safety requirements of the venue itself (including rules about the surface that could be used).While it cannot be denied that CSS provided a venue and hosted the event, ABCRA retained a high degree of control over the event by:
(a)determining which competitors could enter and which specific events they were eligible to enter;
(b)determining the rules which would be applied, including the relevant safety rules;
(c)determining which staff (in terms of judges, clowns etc) could be used for the event, and
(d)obtaining the fees for participation and retaining a share of the fees obtained.
CSS submit that its role is therefore analogous to a promoter of an event, with ABCRA providing the personnel and the participants in the event. ABCRA’s submission that it was in a similar position to the club in Taren Point is therefore misconceived.
Similarly ABCRA’s reliance on Blacktown RSL is distinguishable on the basis that in that case the promoter of the event was also supplying the personnel taking part in the event. In the instant matter, ABCRA provided the personnel, without which the event could not occur.
It is therefore submitted that, if it is found that cl 15 of Sch 1 to the 1998 Act is enlivened both CSS and ABCRA were conducting or holding the event.
Consideration
As it has not been established that Mr Gajkowski was engaged for fee or reward nor that he was an entertainer the appeal must be upheld and the Arbitrator’s determination must be revoked. Therefore, it is unnecessary to consider this ground of appeal. However, if my earlier findings are wrong, I make the following findings concerning whether Mr Gajkowski was engaged in a public performance.
I accept ABCRA’s submission that the question of whether ABCRA “held” or “conducted” the rodeo depends on whether it performed an active role in bringing the event about.[85] The Arbitrator found that ABCRA played an active role; however, his conclusion was based on a number of significant factual errors, namely:
[85] Citing Taren Point.
(a) that ABCRA was responsible for providing the judges and other skilled personnel[86];
(b) that ABCRA determined and controlled the events that could be held;[87]
(c) that the decisions about the rodeo going ahead in wet weather are made by the judges supplied by ABCRA together with CSS;[88]
(d) that ABCRA contributed to the prize money and shared in the competition entry fees,[89] and
(e) that ABCRA controlled or determined competitors that could enter the event.[90]
[86] Citing Reasons, at [52].
[87] Citing Reasons, at [52], [63(c)], [63(i)].
[88] Citing Reasons, at [53], [63(j)].
[89] Citing Reasons, at [63(a)].
[90] Citing Reasons, at [63(c)].
I accept the submission that there is a real distinction between “providing” personnel and providing a list of qualified personnel from which another organisation can select its own staff. There is clear evidence given by Mr Sharpe that ABCRA provided the list of qualified personnel and that CSS selected and paid persons from that list, including the competition judges. CSS also recruited volunteers to assist at the rodeo. There is no evidence to support the proposition that ABCRA “provided” the personnel for the event.
I do not accept Mr Gajkowski’s submission that the Arbitrator’s finding (at [63(c)]), namely, that ABCRA “determined the events that could be held” is consistent with ABCRA providing a list of events to CSS from which CSS made a selection.
The Arbitrator’s finding that ABCRA controls the events that may be held each year at Camden is not supported by the evidence.[91] The finding is inconsistent with the evidence of Mr Sharpe who in discussing the arrangements between CSS and ABCRA clearly stated “when we register our dates we nominate what rodeo events we want to run.” He added “ABCRA have a list of events that they allow us to run and we ‘pick out’ what events we would like to hold at the Camden Show.” This evidence, in my view, is inconsistent with the Arbitrator’s conclusion that ABCRA “determined” the events that could be held at the Camden Show. When it selected ABCRA, CSS thereby agreed to abide by ABCRA rules and it chose the rodeo events it would put on from ABCRA’s list of events. ABCRA did not prohibit CSS from running other events. The evidence is clear that ABCRA had no control over the event other than to ensure that the relevant rules and regulations were met prior to the staging of the event.
[91] Citing Reasons, at [63(i)].
Mr Southwell’s evidence is compelling in terms of the lack of control exercised by ABCRA over the rodeo. He refers to CSS organising and running “our campdraft and rodeo events”. Further, Mr Jones’ unchallenged evidence is that CSS runs its event “independent of ABCRA in that ABCRA has no control over the event other than to ensure that rules and regulations are met prior to staging of the event.”
ABCRA’s role “on the relevant day” was very limited. At most, if not all of what it did occurred beforehand. Prior to the event, ABCRA provided a list of persons who were suitably qualified and experienced to act as judges. That list was made available to CSS who then selected persons from that list to act as judges at the event. It is accepted that CSS contracted with those judges and paid them for their participation. ABCRA provided the rules for the rodeo competitions. It advertised the event upon payment of a fee and prior to the day of the event, it registered members who indicated they wished to compete at the Camden Show and collected their entrance fees on behalf of CSS. It also sent CSS a competitors list about five days before the show. Late entrants paid CSS directly.
Ms Balanda argued that because the judges at the event were selected from the list of approved judges:
“In that sense, the officials who were taking part, who were officiating in this event, were actually [ABCRA’s] officials.”[92]
I do not accept that submission. Apart from providing the list of experienced persons approved to act as judges, ABCRA took no further part in engaging persons to act as judges or having any direction or control over them in the event that they were to officiate at the rodeo. There is no evidence that any decisions made by judges on the day were made in consultation with ABCRA.
[92] T 89.28.
Mr Reynolds submitted that even if the Arbitrator’s findings were correct it does not alter the “baseline finding” that ABCRA conducted or held the event. I reject that submission. The question is whether the cumulative effects of errors made by the Arbitrator in the fact finding process undermined his ultimate conclusion, which I find it did.
The Arbitrator found that decision making as to whether events proceeded, such as in poor weather, were made jointly by the “Show Society and ABCRA officials at the event”.[93] That finding was also wrong. The evidence does not support that finding. Mr Sharpe’s evidence makes it clear that whether the rodeo event would proceed in poor weather was determined by the CSS rodeo committee.
[93] Reasons, at [63(j)].
The Arbitrator found (at [63(a)]) that both CSS and ABCRA contributed to the prize money available to competitors in the rodeo. That finding was wrong. Counsel for CSS, Ms Balendra, conceded that that finding was an error. She said:
“We accept that it was incorrect of the Arbitrator to find both [ABCRA] and the Camden Show Society contributed to the prize money. We accept that the Camden Show Society were the ones who contributed to the prize money.”[94]
[94] T 87.15.
The finding that ABCRA shared in the competition fees is also wrong. Mr Southwell’s evidence is that the fees paid by CSS to ABCRA was in the sum of $110 being an affiliation fee and a further $350 for its involvement in the rodeo. Mr Cooper’s evidence, which was not challenged, is that CSS retained the entry fees.
ABCRA argued that the Arbitrator also erred in finding (at [63(c)]) that it controlled or determined which competitors could enter the event. The evidence establishes that ABCRA vetted competitors who had applied to compete in the rodeo event and by ensuring, from their records, that the person concerned was suitably experienced to compete. Shortly prior to the staging of the event, ABCRA forwarded to CSS a list of competitors qualified to participate in the event. ABCRA submits, and I accept, that the evidence does not support a finding that ABCRA determined the competitors permitted to compete in the event. Its involvement was limited to supplying a list of persons suitably qualified and experienced to participate.
The Arbitrator’s findings with respect to the retention of competition fees, the payment of prize money, decisions regarding the effects of weather on the event proceedings, the provision of judges, the degree of control over which events were held, and the degree of control over who competed in the rodeo, were either wrong or not supported by the evidence.
It is clear from the above analysis that the Arbitrator’s fact finding process miscarried. Consequently the Arbitrator’s findings that ABCRA and CSS jointly and in equal proportions conducted or held the rodeo must be revoked and the issue re-determined. Not surprisingly, both CSS and ABCRA argue that they neither held nor conducted the event. CSS submit that if the appeal is unsuccessful ABCRA should be liable for “a much greater proportion” than CSS.[95]
[95] T 101.12.
Of the Arbitrator’s thirteen factual findings, accepting that at least five of them are wrong or not supported by the evidence, Mr Reynolds argued that the Arbitrator identified at least another eight bases for a finding that ABCRA held or conducted the rodeo. However, of the remaining paragraphs, four of those matters affix liability to CSS. Namely, that it set the competition fees, maintained a rodeo committee, arranged stock and stock controllers, and recruited volunteers to assist on the day of the rodeo.
Mr Reynolds submitted that the evidence establishes that CSS and ABCRA worked together “at some level” in organising the rodeo. He submitted that both organisations are liable and that the “fight” is essentially between them as to the portions in which compensation should be paid, not whether each should be liable for the compensation.
In Taren Point, Hutley JA held:
“To hold or to conduct a contest imports an active role in bringing the contest about. In my opinion, counsel was correct in his submissions and to hold a licensed club liable for injuries suffered by a wrestler in a contest on the premises under this provision, it is necessary to find that the club was performing an active role as organizer or promoter of the contest.”[96]
[96] Taren Point, at [221] (Samuels and Mahoney JJA agreeing).
I am more than comfortably satisfied on the evidence that CSS took an active role in bringing about the rodeo. The conclusion is reinforced by the evidence of Mr Sharpe, the CSS Chairman of the rodeo subcommittee, who conceded that he was essentially responsible for the entire set up of the rodeo held at the Camden Show each year. The conclusion is also reinforced by the evidence of Mr Cooper who was a judge at the Camden Show Rodeo on 4 April 2014. Mr Cooper said in evidence that the CSS committee organises the rodeo events. The issue is whether ABCRA also took an active role in bringing about the rodeo.
ABCRA submit, and I accept, that whilst this case is not on all fours with the facts in Taren Point, the case is instructive in that there can be found to be some participation in an event without being held to hold or conduct it.
In Taren Point, the Club was held not to be liable even though it gave permission for the event to be conducted on its premises. There are some similarities in that the Club laid down conditions under which the persons could attend the event. In this case, ABCRA provided the rules for the conduct of the rodeo and provided safety initiatives.
Unlike the Club in Taren Point, ABCRA did not provide an audience but it provided a list of potential competitors. It assisted with advertising, as did the Club, however that was not held to be a crucial aspect of holding or conducting the event. Nor was the Club’s role in controlling patrons held to be a relevant factor in conducting or holding the event.
ABCRA submits, and I accept, that the situation is also analogous to that in Blacktown RSL. In that matter, the boxing contest was conducted by a promoter on the premises of the Blacktown RSL Club’s. The Club provided the venue, controlled the admission of spectators, sold tickets provided by the promoter but accounted for the full proceeds, and assisted in other ways. In that case, the NSW Court of Appeal, Handley JA (Sheller JA and Santow AJA agreeing) held that the mere use of the Club’s premises for holding the contest and the exercise of its ordinary responsibilities and functions as a registered club could not without more deem it to be the employer of the contestants.
Not unlike the facts in this case, the gross receipts from the sale of tickets were retained by the promoter who were entitled to any profits. The promoters obtained the tickets, determined the price, and received the entire proceeds from the sales. It arranged advertising in the general media and organised the contents in the sense of arranging and setting up the boxing ring, providing the lighting for the ring, hired the fighters, referee, judges, time keeper, card keeper, announcer and seconds and arranged for the presence of police. It applied for and obtained the necessary permits. The similarity in circumstances in that matter to the facts in this case strongly favours the conclusion that ABCRA did not actively hold or conduct the rodeo. The similarities are as follows.
It is accepted that CSS paid prize money to competitors. It set the level of competition fee. CSS was affiliated with ABCRA by the payment of an annual fee. The CSS conceded that it had a rodeo subcommittee to organise the rodeo at the Camden Show including the setting up of the arena. There is no dispute that CSS arranged for the rodeo stock, albeit from contractors recommended and approved by ABCRA. CSS recruited volunteers who assisted in the rodeo office, set up advertising banners and assisted generally around the stock yards. Further, it is accepted that CSS contracted with and paid the judges, protection, clowns and other specialist workers.
For these reasons, I conclude that ABCRA did not have an active role in bringing the rodeo about. Its role was administrative and facilitative. Therefore, I conclude that ABCRA did not hold or conduct the rodeo.
The evidence overwhelmingly supports the conclusion that CSS conducted and held the rodeo and played an active role in bringing it about.
It follows that ground two is upheld.
GROUND THREE
Apportionment of liability
ABCRA’s submissions
ABCRA submits that the alleged factual errors, referred to above, affected the exercise of the Arbitrator’s discretion when determining the share of liability each party should bear. His conclusion that the proportion should be equal overlooks the far greater role that CSS played in organising and conducting the event and the role ABCRA played. ABCRA’s primary role was to perform some administrative tasks and to assist CSS, such as collecting competition fees.
ABCRA further submits that it is “doubtful” that it should be required to pay any compensation in the circumstances. In its submission, the Commission should determine that CSS is liable for 100% of any compensation payable given its dominant role in organising the bull riding competition.
CSS’s submissions
Given the evidence as to ABCRA’s involvement in the event, it is submitted that ABCRA’s position is similar to the position of a labour hire agency, in that it provided suitably qualified personnel to take part in the event promoted by CSS. CSS had no contractual relationship with any of the competitors and only had a contractual relationship with ABCRA for the right to host the event.
However, so it is submitted, a contractual relationship existed between ABCRA and its members. The members paid membership fees to ABCRA, and were required to uphold a code of conduct by ABCRA and were insured by ABCRA.
ABCRA imposed the safety requirements and staffing requirements for the event, thereby exercising a duty of care for the safety of its members in a similar way to a labour hire agency exercising a duty of care for its employees.
Further, it’s submitted that cl 15 is enlivened and both CSS and ABCRA were conducting or holding the event. The duty of care that ABCRA owed to its members was analogous to that of an employer. Therefore, ABCRA is 100% liable for any compensation payable.
Consideration
I accept ABCRA’s submissions.
I do not accept CSS’s submission that ABCRA’s role was analogous to that of a labour hire agency. ABCRA is a not for profit sporting organisation which has the functions of promoting and encouraging participation in the sports of rodeo and campdrafting and providing administrative support to affiliated committees. I accept the submission that it is in a very different position to a labour hire agency which profits from the activities of its contractors. Rather, the members of ABCRA are independent individuals who may choose to compete in sporting events with no guarantee of any reward for doing so.
ABCRA’s involvement in the rodeo was administrative and facilitative. It had safety obligations in relation to the staging of rodeo events, which CSS chose to accept and adopt. ABCRA’s “observance of the general legal burdens thrown upon it” in relation to the safety of its members does not mean that it had an active role in holding or conducting the event.[97] I also accept that CSS’s description of itself as the “promoter” of the event significantly underplayed its role. For the reasons given above, I find that CSS played the active role in holding and conducting the rodeo.
[97] Taren Point, at 221.
For these reasons, if my findings in relation grounds one and two are wrong, I conclude that CSS is 100% liable for any compensation payable.
CONCLUSION
At the time of his unfortunate accident, Mr Gajkowski was not a person engaged for fee or reward to take part as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge. Consequently, he is not, for the purposes of cl 15(1) of Sch 1 to the 1998 Act, taken to be a worker employed by the person conducting or holding the rodeo contest in which he was competing.
ORDER
The Arbitrator’s determination of 31 May 2017 is revoked and the following order is substituted in its place:
“Award for the respondents.”
Judge Keating
President
15 December 2017
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