Guilbert v Glenworth Valley Horse Riding Pty Ltd - [2020] NSWWCCPD 10

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Guilbert v Glenworth Valley Horse Riding Pty Ltd [2020] NSWWCCPD 10
APPELLANT:	Olivia Bell Guilbert
RESPONDENT:	Glenworth Valley Horse Riding Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-2804/19
SENIOR ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	6 August 2019
DATE OF APPEAL DECISION:	4 March 2020
SUBJECT MATTER OF DECISION:	Worker; intention to enter legal relations
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms C Swan, solicitor
McIntosh McPhillamy & Co
Respondent:
Ms S Warren, counsel
Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s decision dated 6 August 2019 is confirmed.

INTRODUCTION

Glenworth Valley Horse Riding Pty Ltd (the respondent) ran a business that offered recreational and adventure activities that included horse riding. Olivia Bell Guilbert (the appellant) went horse riding there as a customer from her early high school years. From when she was about 13 years old she carried out activities there from time to time as a volunteer. Volunteers were not paid. They cared for horses and carried out more general duties such as cleaning, helping in the café and helping staff or the yard manager. They participated from time to time in trail rides and riding lessons. The appellant suffered injury to her thoracic spine on 9 April 2010 (she was 18 years old at the time) when she was thrown from a horse while helping on a trail ride.[1] The appellant completed a claim form dated 2 November 2014.[2] The respondent’s insurer disputed liability in a s 74 notice dated 16 March 2015, which denied that the appellant was a ‘worker’.[3]
[1] Appellant’s statement 6/6/19 (appellant’s statement), [4]–[5], [12]–[13], [23], Application to Resolve a Dispute (ARD), pp 3–6.
[2] ARD, pp 101–104.
[3] ARD, pp 105–107.
Dr O’Keefe, orthopaedic surgeon, assessed the appellant at her solicitors’ request and reported on 22 February 2017. He assessed 15 per cent whole person impairment in respect of the thoracic spine.[4] The appellant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), consistent with this assessment, on 31 May 2017.[5] The appellant was assessed at the insurer’s request by Dr Miniter, orthopaedic surgeon, who reported on 17 July 2017. He assessed whole person impairment at 5 per cent. The respondent’s insurer rejected the claim for lump sum compensation in a s 74 notice dated 17 August 2017.[6] It denied ‘worker’, permanent impairment and whether the appellant had undergone reasonably necessary medical treatment.
[4] ARD, pp 12–16.
[5] ARD, pp 122–124.
[6] ARD, pp 37–45.
These proceedings, pursuing the lump sum claim, were commenced on 6 June 2019. An arbitration hearing was conducted on 30 July 2019. Mr Young appeared for the appellant and Ms Warren appeared for the respondent. No oral evidence was called. It was common ground that, if the appellant succeeded on the ‘worker’ issue, the claim for lump sum compensation would be referred to an Approved Medical Assessor to assess permanent impairment. Counsel for both parties addressed and the Senior Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 6 August 2019 accompanied by 17 pages of reasons.[7] There was an award for the respondent on the basis that the appellant was not a ‘worker’ in the respondent’s employ. This appeal is brought against that decision.
[7] Guilbert v Glenworth Valley Horse Riding Pty Ltd [2019] NSWWCC 268 (the Reasons).

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The ‘liability’ issue between the parties was that of ‘worker’ and I will summarise the evidence on that topic.

Appellant’s statement

The appellant’s statement said that she volunteered to “help with the horses from Year 7”. She did this until she was sent to boarding school in Bathurst from Year 9, after which she “would only work during school holidays”. She said it was a means of being involved in “horse riding activities”. She said she was never required to sign any documentation. She said that when she started there was no induction or meeting to explain what her duties were. She was told to “wear a red shirt and comfortable trousers and boots”. This later changed to a green shirt, which she was required to purchase.[8]
[8] Appellant’s statement, [6]–[9].
The appellant said that, when she first started, the “yard manager was Rose Roberts”. Ms Roberts “would direct myself and other staff in the daily activities”. The appellant said “[w]e were expected to arrive at work at 7:00am.” If a person arrived late, they may not be given work for the day (depending on the number of volunteers). Late comers were reprimanded. The appellant stated that she usually rang a few days in advance of when she wanted to be “engaged”. She was not paid; “we were referred to as volunteers”. She said “we did have the benefit of free trail rides and horse riding lessons”.[9]
[9] Appellant’s statement, [9]–[12].
The appellant said:
“Some of the work included:
(a)    Saddling the horses in preparation for trail rides
(b)    Going on trail rides with guests
(c)    Some feeding of the horses particularly during winter
(d)    Cleaning out bird cages
(e)    Cleaning the toilets
(f)    Washing the saddle blankets with the high pressure hose
(g)    Cleaning the riding helmets using a spray disinfectant
(h)    Helping out in the café
(i)    Restocking the soft drink machine
(j)    Helping any of the staff or yard manager when required”.[10]
[10] Appellant’s statement, [13].
The appellant stated that once she had performed a job she was “required to report to the yard manager for more jobs”. She was expected to work until 5.30 pm. The yard manager would direct her in the work she was to do.[11]
[11] Appellant’s statement, [14]–[15].
The appellant stated that occasionally she would be directed to be involved in lessons. She “would often be there all day and be involved in 6 or so lessons”. She “behaved exactly as if I was a customer and was able to engage in the lesson and to learn about the activity I was interested in”. She said this “was the reward for undertaking work for all the other time that I attended”. She said that on “most occasions I would also get to go on trail rides for free”.[12] She continued:
“If I did not receive those benefits I would not have been performing the volunteer work. There was an expectation that I would have the opportunity to go on trail rides for free and have free horse riding lessons in exchange for performing the work tasks as directed by the yard manager.”[13]
[12] Appellant’s statement, [16].
[13] Appellant’s statement, [17].
The appellant described the circumstances surrounding her accident on 9 April 2010. She was in Year 12 and had turned 18 a few months before. A large coach arrived with about 100 tourists booked to go on horse riding trails. The appellant said that she was “assigned to help with one of the rides”. She said the horse she was assigned to, “Pumpkin”, had an English saddle. The appellant said she had doubts about its suitability, but “because I was a volunteer I did not question it … I just did as I was directed.”[14] The appellant stated that about 30 minutes into the ride it was “time to stop to adjust the girth strap”. As she took her feet out of the stirrups and moved to dismount, the horse bolted, and the appellant fell backwards landing heavily on her upper back.[15] After some delay a “ute” was summoned to take the appellant back to the office, and the appellant’s mother was then called to take her home. She was subsequently x-rayed and taken to Gosford Hospital. She had fractures of T5 and T7 and a compression fracture at T6. She had five weeks off school.[16]
[14] Appellant’s statement, [18]–[20].
[15] Appellant’s statement, [22]–[23].
[16] Appellant’s statement, [27]–[30].

Volunteer Job Roster

The appellant’s material includes a job roster.[17] It sets out Daily Tasks and Other Tasks. The Daily Tasks include items such as stocking brochure racks, mopping, sweeping, bird feeding, watering and “Poo patrol”. One activity is “Brush girths”. The Other Tasks include removing cobwebs, window cleaning, weeding, cleaning out bird cage, trimming plants and refilling the drink machine. There are also items such as washing girths, cutting rein ties, cleaning helmets, fixing bridles, scooping out the feed bin and feeding skinny horses. Some of the activities involve maintaining riding gear and caring for horses, many do not.
[17] ARD, p 47.

Information for Volunteers

The ARD also includes a document on the respondent’s letterhead,[18] “Information for Volunteers”. It includes a disclaimer, that horse riding is a dangerous activity and volunteers do so at their own risk. It states the respondent is “unable to supervise volunteers”, and “[a]nyone who decides to volunteer, or allows their child to volunteer, fully accepts this”. The document additionally sets out “Requirements and Conditions”. The Introduction reads:
“Welcome to Glenworth Valley Horse Riding (GVHR). We appreciate that you have come here on a voluntary basis to offer your services for the day however, for your own safety, please take the time to read this document thoroughly as it contains important information relating to the conditions and requirements of volunteer workers at GVHR.”
[18] ARD, pp 48–51.
The document provided that “[a]ll volunteers are required to read and sign this document”, and “the enclosed disclaimer must also be completed and returned”; both documents would be “kept on file at GVHR”. It said that parents and guardians of under 18 year olds were required to read and sign the documents. It stated: “No person will be allowed to volunteer unless GVHR has both of these forms on file in the office”. It advised parents that “no formal training [is] given to volunteers as such”. The document, which includes a disclaimer and information about the role of volunteers, is periodically referred to in submissions (and consequently in these reasons) as the “disclaimer”.
The document said that anyone wanting to volunteer must call the administration office to determine which days are available and the number of volunteers required. It said that volunteers would be sent home if they had not made a prior booking. The document provided:
“Expectations and requirements of Volunteers
Volunteers come to GVHR to gain valuable experience whilst assisting the staff.
All volunteers are expected to follow requests of staff members at all times and to treat fellow volunteers, staff and especially customers with respect. Any swearing or behaviour not consistent with the professional image for which GVHR is renowned, will not be tolerated.
A volunteer may be requested to undertake a variety of different task [sic], some of which are not horse related. These tasks may include:
·Lead horses out of yards and pass them to customers
·Greet customers in a friendly way
·Shovel and remove manure from yards
·Assist staff on guided rides
·Fill the drink machines
·Greasing saddles
·Fill feed bags etc.
·Brushing girths
·Repair bridles at the end of the day
A volunteer will not be asked to do any task that another volunteer or staff member wouldn’t be expected to do or that is not within their capability.
There is no guarantee that you will ride a horse every time you volunteer. This decision is totally at the discretion of the Yard Manager. While it is acknowledged that some volunteers have more experience with horses than others, for reasons of fairness, it is expected that all volunteers partake equally in all tasks required – not just horse related ones – to the best of their abilities. Staff members are very busy and are grateful to those volunteers that are keen and willing to help out as much as possible. If a volunteer has not worked to the best of their ability the Yard Manager has total discretion as to whether or not that person rides a horse that day.
On other days the yards are very busy and there may not be horses available for volunteers to ride.” (emphasis in original)
The document provides:
“At no time should a volunteer give a customer the impression they are employed by GVHR. If your role is questioned you should refer to yourself as a helper or volunteer.”
Sections of the document provide:
“Working with the horses
Most of the time the yards are a very busy place and there is a lot happening at once. Generally speaking, the staff do not have time to constantly supervise volunteers. For this reason, volunteers must follow all directions given by any member of staff. Safety is imperative and if directions are ignored it could place a volunteer in a potentially dangerous situation.
Volunteers need to be accountable for their behaviour at all times, Reckless, dangerous and irresponsible behaviour can place customers, fellow workers and horses at risk.
If a volunteer is asked to assist on a guided ride they are to follow all directions given by the guide/staff member. A volunteer has no authority over customers.
Work hours
Saturdays and Sundays – start at 7.30am and finish approx. 5.00pm.
School holidays – start at 8.00am and finish approximately 5.00pm
Clothing/Uniforms
GVHR is renowned for its professional image. As such, GVHR expects all volunteers to wear a uniform. The uniform consists of cream riding pants, moleskins or denim jeans, a red polo shirt or a red collared long sleeved cotton shirt and a red jumper (if required). Please bring adequate warm clothing during the winter months. Cropped shirts and low waisted pants are not considered appropriate attire.
GV branded red polo shirts are available for purchase in a variety of sizes for $20, and this is the preferred shirt for volunteers.
Sun block, insect repellent and a wide brimmed hat like an Akubra are also required during the warmer months.”

Mr Vandescheur’s statement

Mr Vandescheur in his statement dated 27 July 2017[19] said he was employed as a yardman from October 2005 to February 2011. He confirmed that volunteers were not paid wages, and that there was no guarantee they would be riding every day they volunteered.[20] He said attempts were made “to get all the volunteers out at least once a day on a suitable horse”, although it depended on what horses were available. He described the duties of a volunteer in a way generally consistent with the ‘Expectations and requirements of Volunteers’ and the ‘Volunteer Job Roster’ referred to above. He said that he and other staff members would tell the appellant what duties she was to perform. He said the duties of the volunteers were supervised to a degree. He described the volunteers as working set hours, consistent with those described in the ‘Expectations and requirements of Volunteers’. He said volunteers were not reprimanded if they arrived late or wanted to leave early.[21]
[19] ARD, pp 130–135.
[20] Mr Vandescheur’s statement 27/7/17, [3], [5]–[6].
[21] Mr Vandescheur’s statement, [8]–[15].
Mr Vandescheur denied that volunteers were offered rides as payment or reward for volunteering. He said the volunteers “only got to go for rides if they were required to assist the guide on a ride”. He said that on weekends and holidays “we’d try and send a volunteer out on every ride to help out the guides. This was subject to the availability of suitable horses …”.[22] He recalled seeing the appellant in a red polo shirt, and from when the respondent changed the colour of its shirts to dark green with a yellow or white logo, in one of these.[23]
[22] Mr Vandescheur’s statement, [17]–[20].
[23] Mr Vandescheur’s statement, [23]–[25].

Ms Papadatos’s statement

Ms Papadatos worked as “Office Manager/Administration” from 3 November 2003. Her duties were financial, managerial and administrative. She said that on any given day, the volunteers “may have been able to go out on a ride on a suitable horse if available”. She said that the minimum age for a volunteer when the appellant started was 12. A volunteer “had to have a signed parental/guardian consent if they were under the age of 18”. She said that at the time the appellant commenced “the induction was just a basic show around”. Ms Papadatos described a volunteer’s duties and hours in a way consistent with those described in the ‘Expectations and requirements of Volunteers’. [24] She said that volunteers and their parents/guardians had to sign the “Volunteer Permission Form”.
[24] Ms Papadatos’s statement 27/7/17, ARD pp 136–142, [3], [9]–[13].
Ms Papadatos referred to the appellant’s statement that volunteers were reprimanded if they “came in late or left early”. She said if this happened staff would be left short-handed, and it disadvantaged another volunteer who could have come in and done the full shift. Volunteers would be reprimanded for this.[25] Ms Papadatos said that volunteers were supervised by “horse riding managers or a senior member of the horse riding staff”.[26]
[25] Ms Papadatos’s statement, [18]–[19].
[26] Ms Papadatos’s statement, [21].
Ms Papadatos denied that anyone ever received “free horse riding lessons on quieter days in lieu of wages”. She said “they may get to help the instructor providing the lessons to customers”. She said that not all volunteers rode every day, it depended on customers and the availability of suitable horses.[27] Ms Papadatos said the “volunteers who had been the most reliable were rewarded with the chance to ride Glenworth horses” in gymkhanas held a couple of times each year. She said the appellant rode in these. There was also a Christmas party for the volunteers. She agreed it was compulsory for the volunteers to wear a uniform.[28]
[27] Ms Papadatos’s statement, [22]–[23].
[28] Ms Papadatos’s statement, [24]–[25].

Mr Lawler’s statement

Mr Lawler was the general manager of the respondent, which was a “family owned business”. He said he knew the appellant “relatively well to talk to”, she was “a good rider, mature and a great kid”. He referred to the duties of volunteers in a way generally consistent with the other witnesses. He said “[t]hey do all of that in return for being around the horses; learning and getting experience; and going out on the rides.”[29] Mr Lawler said that on the first occasion a volunteer comes to us “we get them to fill out a horse riding disclaimer”. He said “Olivia and her parent/guardian would have been required to sign one of these forms prior to commencing as a volunteer, but we have been unable to locate hers.”[30] He said:
“14. The relationship between the volunteers and GVHR did not involve the payment of any wages to the volunteers. Looking at it from a technical perspective, the consideration the volunteers received for performing their tasks was in horse rides.
15.    There was no guarantee that volunteers would get to ride a horse, but it would be a very rare day that a volunteer didn’t get to ride a horse. It was almost without exception that they would ride a horse every day they were here and that was their reward or consideration.
16.    There were also certain special days held for volunteers, where we would allow them to participate in the gymkhanas we held; and the volunteers who had contributed the most or been around the longest, would be given a horse for the day to enter into the events. It was similar to a ‘pony club type of day’ on the property here, where we provided a horse at no cost to them as a bit of acknowledgment or payment for their services.
17.    Volunteers are also invited to our Christmas parties and rides, and we tried to look after them that way. We’ve had some volunteers who have been with us for years, who started when they were around 13-14 years old; and we also have some adult volunteers.
18.    With regards to Olivia alleging that she received free horse riding lessons in lieu of wages on quieter days – yes that is correct, and I would imagine that’s fair.”[31]
[29] Mr Lawler’s first statement 3/8/17, ARD pp 143–152, [3], [5]–[6].
[30] Mr Lawler’s first statement, [11].
[31] Mr Lawler’s first statement, [14]–[18].

Mr Lawler said it was “at the discretion of the horse riding centre manager as to whether [the appellant] and the other volunteers got to ride a horse or not”. The guide and volunteer assigned to a ride would vary depending on how experienced the riding group was and whether there were a lot of children on the ride. If there were a lot of volunteers on a particular day, there may be two volunteers on a ride.[32]
[32] Mr Lawler’s first statement, [26]–[27].
Mr Lawler agreed that the volunteers worked set hours. He said they did not get in trouble if they arrived late or left early, although “they were usually very good” at turning up for their set hours. If someone turned up “just for the riding part”, but not the preparation associated with “saddle-up”, they would be asked why they were doing that. Mr Lawler said that the appellant “would have reported to and been supervised by whoever the horse riding centre manager was at the time. On guided rides, the volunteers were supervised by whoever was the guide on that ride. Mr Lawler said the respondent supplied all the equipment required, although most volunteers “provided their own riding boots, jodhpurs, and riding helmet”. It was “pretty much compulsory” for volunteers to wear a shirt with the respondent’s logo on it, which they were required to purchase.[33]
[33] Mr Lawler’s first statement, [19]–[25].
Mr Lawler made a second statement,[34] that responded to the appellant’s further statement (dated 6 June 2019). Mr Lawler said that before volunteers were allowed to book in, they were sent paperwork including a disclaimer, contract information and some basic risk warning information. He agreed there was no initial formal induction for volunteers. He said volunteers were required to wear “smart clothing and a dedicated shirt”. He said the respondent was “pretty flexible if volunteers started late or finished early”. Volunteers “particularly enjoyed” riding. They found the morning “saddle up” less enjoyable. The flexibility did not apply if there “was a regular pattern of avoiding the less enjoyable parts”.[35]
[34] Mr Lawler’s second statement 5/7/19, Application to Admit Late Documents pp 1–8.
[35] Mr Lawler’s second statement, [6]–[9].
Mr Lawler agreed that the appellant was not paid any wages, but that the appellant had the benefit of free trail rides and horse riding lessons. He said the appellant was “a very helpful and well regarded volunteer”.[36]
[36] Mr Lawler’s second statement, [11].
Mr Lawler said he did not think that helping to clean toilets was a volunteer’s job. He said there were “loads of other jobs” that only staff members would do. Mr Lawler denied that volunteers were yelled at.[37] In a general sense, Mr Lawler said that there was “a different tone of expectation between staff and volunteers”. He said the managers and he “felt when you asked a volunteer to do a task that the volunteer was doing you a favour and you were doing them a favour in return when you allocated something they particularly enjoyed”.[38]
[37] Mr Lawler’s second statement, [13]–[14].
[38] Mr Lawler’s second statement, [16].
Mr Lawler referred to the appellant’s evidence that there was an expectation that she would receive free trail rides and lessons in exchange for the work she performed as a volunteer (see [12] above). Mr Lawler said that he largely agreed with this, although “some of the words are a bit strong or may overstate the nature of the arrangement”.[39]
[39] Mr Lawler’s second statement, [17].

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator described the issues.[40] He summarised the appellant’s statement and the medical evidence in the appellant’s case.[41] He summarised Dr Miniter’s report (on which the respondent relied), the statements of Mr Vandescheur and Ms Papadatos, and the two statements of Mr Lawler.[42] He summarised the contents of the Volunteer Job Roster[43] and the Volunteer Requirements and Conditions.[44]
[40] Reasons, [10]–[11].
[41] Reasons, [14]–[37].
[42] Reasons, [38]–[64].
[43] Reasons, [65]–[66].
[44] Reasons, [67]–[73].
The Senior Arbitrator summarised the appellant’s submissions. The appellant submitted the relationship was consistent with the appellant being a ‘worker’ consistent with the principles in Stevens v Brodribb Sawmilling Company Pty Ltd.[45] Mr Young submitted there was an offer by the respondent and acceptance by the appellant. The real question was whether there was any consideration. The respondent was a commercial entity. The appellant, over years, provided services which were of commercial value to the respondent. In return the appellant received reward, trail rides and lessons, which had a monetary value. The appellant performed “wide ranging and non-glamorous tasks in exchange for that consideration and reward”.
[45] [1986] HCA 1; 160 CLR 16 (Stevens).
The appellant submitted this distinguished the matter from Teen Ranch Pty Ltd v Brown.[46] In Teen Ranch the worker worked for a non-profit Christian organisation, from which he received accommodation, meals and the use of camp facilities. These were incidental to the worker’s involvement. His motivation was religious commitment and moral obligation. In the current matter the appellant worked for the consideration of free trail rides and lessons. This was supported by Mr Lawler’s statement.[47]
[46] (1995) 11 NSWCCR 197 (Teen Ranch).
[47] Reasons, [75]–[78].
Mr Young said the appellant was required to wear a uniform, work set hours, and was asked why if she was late. This evidenced control consistent with Articulate Restorations & Developments Pty Ltd v Crawford.[48] Volunteers were not allowed to pick and choose their tasks. The appellant could be yelled at. She was directed to work and supervised by the yard manager. This was consistent with control. Mr Lawler referred to the benefit to the business of good volunteers such as the appellant.[49] The appellant said she would not have volunteered if not for the free rides and lessons. She had an expectation of a return to her in exchange for doing the tasks of a volunteer. Mr Lawler, the general manager, largely agreed with the appellant’s statement regarding this arrangement. He conceded the consideration the volunteers received was in horse rides. There were also rides at gymkhanas without cost and Christmas party invitations. This was different to Teen Ranch which involved moral or religious motivation.[50]
[48] (1994) 10 NSWCCR 751; 57 IR 371 (Crawford).
[49] Reasons, [79]–[80].
[50] Reasons, [82]–[84].
Mr Young submitted that Mr Vandescheur’s evidence confirmed the appellant was subject to his supervision and direction. She was required to wear a uniform. Mr Vandescheur said there was no guarantee that volunteers would be riding, but they tried to get all the volunteers on a horse at least once per day. Mr Lawler said volunteers would ride most days, the appellant had an expectation of riding in return for her services.[51]
[51] Reasons, [85]–[86].
Mr Young submitted the evidence of Ms Papadatos demonstrated the presence of control. Her evidence should be given less weight than that of other witnesses as she worked in the office. She disputed that the appellant was given free lessons in lieu of wages. This should be contrasted with the evidence of Mr Lawler. There was evidence of a legal relationship accompanied by the indicia of employment.[52]
[52] Reasons, [87]–[88].
The Senior Arbitrator summarised the respondent’s submissions. Ms Warren submitted the issue was “whether there was any consideration and an intention to create a legal relationship”. There was no money paid, the question was “whether the provision of trail rides and lessons constituted consideration for the tasks that the [appellant] performed”.[53] She submitted, referring to the ‘Requirements and Conditions’ document, that it was up to the volunteer to ring up and book a position, the volunteer controlled the situation. The respondent allocated available positions; this did not constitute an employment relationship. Assisting staff on guided rides was not in consideration for other tasks performed. Volunteers were not to give customers the impression they were employed by the respondent.[54]
[53] Reasons, [89]–[90].
[54] Reasons, [92]–[93].
Ms Warren submitted the disclaimer document identified safety concerns consistent with a need for supervision. Although there was not a signed copy available, Ms Papadatos said that all volunteers signed the document before being accepted as volunteers. The document contained no reference to free lessons, so this was not part of the arrangement between the parties.[55] The need to query why volunteers were late flowed from the high demand from volunteers for positions. It was not evidence of control. Ms Warren submitted that the appellant went on trail rides to assist staff, and was directed to participate in lessons, these things were part of her role as a volunteer. Mr Vandescheur said that volunteers were not guaranteed a ride. He was the person who supervised the volunteers, and he said they were not reprimanded. He said there was no drama if a volunteer arrived late or left early.[56]
[55] Reasons, [94].
[56] Reasons, [95]–[98].
The respondent submitted on the evidence of Ms Papadatos. She performed general managerial duties, interacted with the appellant, and would have been aware of the arrangement with volunteers. Ms Papadatos confirmed volunteers were not guaranteed a ride. This was discretionary and depended on the availability of horses. She denied the appellant received free lessons as a form of payment.[57]
[57] Reasons, [99].
Ms Warren submitted Mr Lawler was not the appellant’s immediate supervisor. He denied that the appellant was reprimanded. The yard manager had a discretion regarding who would ride.[58]
[58] Reasons, [100]–[102].
Ms Warren submitted there was no intention to create legal relations applying the principles in Birkett v Tubbo Estate Co Pty Ltd.[59] She referred to Teen Ranch as supporting the respondent’s argument. It was not relevant that the current matter concerned a commercial enterprise, contrary to the situation in Teen Ranch. The appellant volunteered for various reasons, not only to obtain free rides and lessons. She wanted to interact and be around horses and associated activities. Ms Warren sought to distinguish Harris v Cudgegong Soaring Pty Ltd.[60] She submitted that in that case there was an exchange of consideration and an intention to enter legal relations. In the current matter, the appellant had no guarantee of a position and had to book ahead. The respondent referred to Secretary, Department of Family and Community Services v Bee.[61] It was necessary to look at the overall relationship in considering whether there was an intention to enter legal relations. The appellant did not receive goods in return for her services.[62] The appellant did not voluntarily assume a legally enforceable duty.[63]
[59] (1997) 14 NSWCCR 369 (Birkett).
[60] (1995) 11 NSWCCR 678 (Harris at first instance).
[61] [2014] NSWWCCPD 66 (Bee).
[62] Reasons, [102]–[103].
[63] Reasons [104]–[106].
The respondent submitted there was no legal obligation on the appellant to undertake or continue her duties as a volunteer. It submitted the term ‘volunteer’ was consistent with the intention of the parties. There was no employment relationship.
Mr Young, in reply, noted that the Volunteer Job Roster did not refer to horse rides and lessons as part of the volunteers’ tasks. He submitted the appellant had no recollection of signing the disclaimer and did not know if her parents had done so. She was not asked to sign a form after turning 18. There was no current document. Little weight should be given to a document directed to underage volunteers. He submitted the matter could be distinguished from Birkett, which involved a claimant undertaking work experience as part of a course. The appellant’s view of the consideration that flowed to her was confirmed by Mr Lawler.[64]
[64] Reasons, [108]–[112].
The Senior Arbitrator referred to the decisions of Roche DP in Drive Recruit Pty Ltd v Back[65] and Bee. He quoted the Deputy President’s discussion of the elements involved in the formation of a contract of employment. There must be an intention to enter into legal relations and real consideration for the agreement, a quid pro quo. The Senior Arbitrator referred to the decisions in Teen Ranch, and Harris at first instance. There was evidence of consideration passing between the parties in Harris, the worker worked as a caretaker in return for a necessity of life, shelter.[66]
[65] [2013] NSWWCCPD 32 (Back).
[66] Reasons, [115]–[122].
The Senior Arbitrator said that, in the current matter, the appellant performed a variety of tasks described in the Volunteers Job Roster and the Volunteers – Requirements and Conditions document. The appellant indicated she volunteered to engage her interest in horseriding, be around horses and associated activities, and have free horse rides and lessons. This was her motivation. There was no induction or training as “would usually be undertaken in a true employer/employee situation”. The appellant received a benefit for her activities. There was evidence of control. She was required to attend for set hours and wear a shirt with a logo and identification of her as a volunteer. She was required to undertake specified tasks. There was no guarantee she would ride each day, although the respondent did its best to accommodate her and other volunteers.[67]
[67] Reasons, [124]–[128].
The direction, organisation and supervision of volunteers was for reasons of safety. It also ensured there was a full complement of volunteers.[68]
[68] Reasons, [128].
The appellant stated she would not have been a volunteer if not for the lessons and trail rides. The appellant said she could not recall signing a document and did not know if her parents had. The Senior Arbitrator said one would think this could have been cleared up in statements from her parents. He referred to the statements of Mr Lawler and Ms Papadatos, both of whom said volunteers or their parents were obliged to sign a disclaimer before a volunteer could ride a horse.
The Senior Arbitrator said it was “highly likely” the document would have been signed on the appellant’s behalf by her parents, who would have been aware of the requirements and conditions associated with being a volunteer. The Volunteers – Requirements and Conditions document made it clear the positions offered were as volunteers rather than as employees. It stressed that attendance was voluntary. It warned the respondent did not provide supervision. The appellant described herself as a ‘volunteer’ in her statement. Her shirt was a different colour to those worn by staff members. The Senior Arbitrator said the term ‘volunteer’ suggested “a lack of intention by the respondent to create a legal relationship”. The disclaimer document provided that volunteers were forbidden from giving customers the impression they were employed by the respondent. This too suggested a lack of intention by the respondent to create a legal relationship.[69]
[69] Reasons, [129]–[133].
The Arbitrator said:
“A description of the various duties to be undertaken by the volunteers was identified in the disclaimer form. There was reference to volunteers assisting staff on guided rides, but there was no mention of free lessons. Therefore, it seems that participating in trail rides formed part of the volunteers’ usual tasks. It would seem from the contents of this document that the respondent’s intention was to allow teenagers to participate in the activities on the property in a purely voluntary capacity and there was no intention to create a legal relationship.”[70]
[70] Reasons, [134].
The Senior Arbitrator restated some of the evidence from Mr Vandescheur and Ms Papadatos. He referred to the evidence from Mr Lawler, who said the volunteers were allowed to ride horses as “consideration” or as their “reward”. The Arbitrator referred to Mr Lawler’s agreement with the appellant’s assertion that she received free horse riding lessons in lieu of wages. The Senior Arbitrator said that this concession seemed to be based on grounds of fairness, to reward the volunteers for performing the more mundane tasks, rather than a concession of an employer/employee relationship. The Senior Arbitrator said that, in his view, Mr Lawler’s use of “the term ‘consideration’ was merely incidental”. Because the horse rides and lessons were not guaranteed, the respondent’s evidence was not consistent with an intention to create legal relations.[71]
[71] Reasons, [135]–[140].
The Senior Arbitrator referred to Bee, saying that it demonstrated that an intention to create a legal relationship must be based on an objective assessment of what was conveyed by the statements and actions of the parties and the circumstances in which they occurred. When one looks objectively at the circumstances in which the promise of free lessons and riding was made, “it is difficult to conclude that there was any intention to create a legally enforceable duty”. The Senior Arbitrator said the appellant’s indication that she would not have undertaken the duties as a volunteer, if not for the free rides and lessons, “seems to suggest a lack of an intention to create a legal relationship on her part”. She was under no legally enforceable duty to work as a volunteer.[72]
[72] Reasons, [141]–[143].
The Senior Arbitrator said that the respondent’s repeated use of the term ‘volunteer’, in the written material and on the different coloured shirts for volunteers, showed the respondent did not intend to create a legal relationship.[73] The Senior Arbitrator said:
“145. The allocation of a position as a volunteer was at the discretion of the respondent following contact by the [appellant]. If the [appellant] failed to contact the respondent, she would not be allocated a position. If she was not allocated a free ride or lesson when she attended, she could have easily turned around and gone home. She was equally in control of the situation.
146. There was no obligation on the [appellant] to apply for a volunteer’s position. It was at her own discretion and within her control, although any request had to be made two weeks in advance. Similarly, the respondent was under no legally enforceable duty to allocate a position to the [appellant]. The [appellant] had no remedy to force it to do so.”[74]
[73] Reasons, [144].
[74] Reasons, [145]–[146].
The Senior Arbitrator found that the appellant was not a ‘worker’ and entered an award in the respondent’s favour.

PROCEDURAL MATTERS

The appeal, as originally drafted, purported to raise a single ground of appeal:
“The Senior Arbitrator erred finding contrary to the evidence.”
The Commission issued a Direction on 30 January 2020, requiring that the appellant plead grounds of appeal in compliance with Practice Direction No 6. The appellant lodged an amended Appeal dated 7 February 2020. The respondent lodged an amended Notice of Opposition dated 14 February 2020. References in these reasons to the Appeal and Notice of Opposition are to those amended documents.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Senior Arbitrator erred in law in making material findings contrary to the evidence. (Ground No. 1)
(b)    The Senior Arbitrator erred failing to make a material finding that the admission of ‘consideration’ by the respondent’s general manager established an intention to create a legal relationship. (Ground No. 2)
(c)    The Senior Arbitrator erred in law by applying material findings which should not have been made to the test in Bee. (sic) (Ground No. 3)

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

In Raulston v Toll Pty Ltd,[75] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[76] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[77]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[78]
[75] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[76] (1966) 39 ALJR 505, 506.
[77] [1996] HCA 140; 140 ALR 227.
[78] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[79] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[80]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[81]
[79] [2017] NSWWCCPD 5, [67].
[80] [2001] FCA 1833, [28].
[81] Raulston, [20].
In Northern NSW Local Health Network v Heggie[82] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[83]
[82] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[83] Heggie, [72].
The current appeal consists largely of challenges to factual findings made by the Senior Arbitrator and the weight given to evidence. The respondent, in its submissions,[84] referred to the following passage:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[85]
[84] Respondent’s submissions, [10].
[85] Shellharbour City Council v Rigby [2006] NSWCA 308, [144].
The appellant’s submissions largely direct themselves to factual findings that were available on the evidence, without seeking to identify specific error of fact, law or discretion.

SOME PRINCIPLES

In Australian Woollen Mills Pty Ltd v Commonwealth, the High Court said:
“The position has been stated above in terms of the technical doctrine of consideration, and this is, in our opinion, the correct way of stating it. But it may be referred to a principle which is fundamental to any conception of contract. It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.”[86]
[86] [1954] HCA 20; 92 CLR 424 (Australian Woollen Mills), [33].
In South Australia v Commonwealth, Windeyer J said:
“An agreement deliberately entered into and by which both parties intend themselves to be bound may yet not be an agreement that the courts will enforce. The circumstances may show that they did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. The status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances, may put the matter outside the realm of contract law.”[87]
[87] [1962] HCA 10; 108 CLR 130 (South Australia), [4].
Teen Ranch is frequently referred to in cases such as the current one. That case involved a person who worked at a camp as a volunteer, without wages, with a non-profit Christian organisation. He received free board, lodging and the use of camp facilities whilst doing so. He was injured while working as a volunteer. Handley JA said:
“Family, social and domestic arrangements do not normally give rise to binding contracts because the parties lack the necessary intention.”[88]
[88] Teen Ranch, 201D.
His Honour referred to a decision of Rogers v Booth,[89] in which a Salvation Army officer failed in a claim for workers compensation because she was not employed under a contract of service. The Salvation Army officer had signed a document negativing any such intention. Handley JA additionally referred to a finding in Rogers v Booth that “independently of these provisions the character of the relationship demonstrated that the parties did not intend to enter into rights and obligations enforceable in a court of law”. Handley JA said the volunteer’s work in Teen Ranch was not done to earn the free board and lodging supplied to him. His Honour said “The one was never intended to be, and was never seen to be, the price or quid pro quo for the other”,[90] referring to Australian Woollen Mills.
[89] [1937] 2 All ER 761.
[90] Teen Ranch, 202B–C.
In Ermogenous v Greek Orthodox Community of SA Inc[91] the plurality referred to “the search for the ‘intention to create contractual relations’”. Their Honours said:
“Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”[92]
[91] [2002] HCA 8; 209 CLR 95; 76 ALJR 465; 187 ALR 92 (Ermogenous).
[92] Ermogenous, [25]. See also Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92 (per Sheller JA, Cole JA agreeing), 101C.
Birkett involved an agriculture student injured on a rural property while carrying out work experience as a farm hand, as part of the requirements for an agricultural certificate for which she was studying. She was provided with free accommodation and meals at the property. Truss J said:
“The provision of meals, accommodation and the travelling expenses could not in my view be regarded as the consideration for the applicant providing her services. This is not why she was working on the stud. She was there for a specific purpose, namely to fulfil the practical requirements of her course pursuant to an arrangement made between her college and the respondent. She was free to leave the property at any time without repercussions so far as the respondent was concerned, although it would have had repercussions in relation to completion of her studies.”[93]
[93] Birkett, 372G–373A.
The onus of proving the existence of a contract is on the appellant, she being the party that alleges its existence.[94] The parties, in their submissions, referred to the decision in Bee. Bee was a successful Presidential appeal, by an alleged employer, against an arbitral finding that a foster carer was a deemed worker in the employ of the Department of Family and Community Services. Deputy President Roche considered the factors described in South Australia (see the passage at [65] above) and concluded that, viewed objectively, there was no intention to create “legally enforceable contractual relations”.[95] Bee is consistent with, and summarises a number of the principles taken from, the authorities discussed above.

GROUND NO. 1

[94] Harris at first instance, 694.

[95] Bee, [79]–[80].

Appellant’s submissions

The appellant’s submissions under this ground relate to the disclaimer. The appellant submits there was no evidence that there was a signed disclaimer in existence. If the appellant’s parents had signed such a document when she commenced volunteering at age 13, there is no evidence that such a document was in the same form as that relied on by the respondent. There is no evidence that the appellant signed such a document herself after turning 18.
The appellant submits the Arbitrator erred in treating the disclaimer as relevant to whether there was an intention to form a legal relationship. It is submitted the “undated and unsigned disclaimer carried little or no weight”. Greater weight should have been placed on the evidence of the appellant and Mr Lawler (the general manager and “controlling mind of the respondent”).[96]
[96] Appellant’s submissions, [2.9(1)].

Respondent’s submissions

The respondent accepts there was not a signed disclaimer in evidence, consistent with the Senior Arbitrator’s finding that there was “no written agreement or contract in evidence”.[97] The respondent says the Senior Arbitrator dealt with this in his reasons, finding it was “highly likely that the document would have been signed by the [appellant’s] parents on her behalf and they would have been aware of the requirements and conditions”.[98] The respondent submits the acceptance of evidence and the weight attributable to evidence were matters for the Senior Arbitrator, unless a finding was so against the weight of evidence that it must have involved error. Reference is made to Shellharbour City Council v Rigby.[99] The respondent submits the Senior Arbitrator’s finding was not against the weight of evidence, and certainly not a decision where there must have been error.[100]
[97] Reasons, [123].
[98] Reasons, [131].
[99] [2006] NSWCA 308.
[100] Respondent’s submissions, [8]–[11].
The respondent refers to evidence from Mr Lawler and Ms Papadatos that the appellant or her parents would have been required to sign the disclaimer before the appellant commenced as a volunteer. It submits that requirement was in place before the time the appellant commenced as a volunteer. The evidence from Ms Papadatos did not state that the form had changed since that time.[101] The respondent submits the evidence of Mr Lawler and Ms Papadatos was unchallenged on this issue. The Arbitrator commented the situation could have been “easily clarified” by statements from the appellant’s parents and that was not done. The appellant could not recall whether she or her parents had signed the disclaimer. The respondent submits it was not open to the Arbitrator to make an adverse finding on credit against Mr Lawler and Ms Papadatos, in circumstances where the appellant had failed to cross-examine them. Reference is made to Hancock v East Coast Timber Products Pty Limited.[102]
[101] Respondent’s submissions, [12].
[102] [2011] NSWCA 11; 8 DDCR 399 (Hancock).
The respondent challenges the appellant’s submission that the disclaimer was not relevant to determining whether there was an intention to enter legal relations. It submits the Arbitrator viewed the evidence, of which the disclaimer was one aspect, as a whole. The respondent refers to lay evidence in its case. It submits the evidence supports an argument that “the disclaimer reflected the set up of the respondent’s volunteering program”.[103] It submits the disclaimer was relevant in determining whether the parties intended to form a legal relationship.[104]
[103] Respondent’s submissions, [14]–[22].
[104] Respondent’s submissions, [25].

Consideration

There was no direct evidence that the disclaimer had been signed by the appellant or her parents. There was evidence from which it was possible to infer that the disclaimer had been signed. There was evidence that the respondent’s practice was to require provision of a signed disclaimer before a person was taken on as a volunteer[105] or allowed on a horse.[106] If the volunteer was under 18 years old, the respondent required a “signed parental/guardian consent”.[107] There was evidence that the appellant worked as a volunteer from when she was 13 years old and that she rode horses.[108] The evidence of these matters was not challenged. The Arbitrator clearly accepted it. He made a factual finding:
“Mr Lawler stated that the volunteers or their parents were obliged to sign the disclaimer before being allowed to ride a horse. This was also confirmed by Ms Papadatos. Given this evidence and the dangerous nature of horse riding, it is highly likely that the document would have been signed by the [appellant’s] parents on her behalf and they would have been aware of the requirements and conditions associated with being a volunteer. Mr Lawler indicated that the business could operate without volunteers, so they were not a necessary requirement.”[109]
[105] Ms Papadatos’s statement, [11], [17].
[106] Mr Lawler’s first statement, [11], Mr Lawler’s second statement, [6].
[107] Ms Papadatos’s statement, [11].
[108] Appellant’s statement, [6]–[7].
[109] Reasons, [131].
This finding was properly available on the evidence, as an inference.[110]
[110] Luxton v Vines [1952] HCA 19; 85 CLR 352, [8], Flounders v Millar [2007] NSWCA 238, [35].
The appellant challenges the evidentiary significance of the disclaimer, given that there was no evidence of the appellant signing a fresh disclaimer when she turned 18. There is direct evidence from the appellant that she did not, herself, execute such a document after turning 18.[111] The nature of this challenge is not clear from how it is expressed; whether it is to the weight given to the disclaimer, or whether the document is asserted to be without legal validity as the appellant was a minor and turned 18 after it was executed.[112] The Arbitrator’s finding was that the evidence did not establish an intention to enter into legal relations. The appellant turned 18 years of age approximately seven weeks before the date of her injury. There is nothing in the evidence to suggest that anything happened over that seven week period that changed, in any way, the relationship that was previously in place. The appellant’s submission does not point to anything.
[111] Appellant’s statement, [7].
[112] Appellant’s submissions, [2.9(1)(b)].
The appellant submits the Senior Arbitrator erred in “assuming the terms of the unsigned and undated disclaimer were relevant to determining intention to form a legal relationship”.[113] The respondent submits it is appropriate to have regard to all of the available evidence, including the disclaimer, in determining, on an objective basis, whether the parties intended to form a legal relationship.[114] It submits, correctly, that “the disclaimer was only one aspect of the evidence that demonstrated the roles of the volunteers”.[115] The respondent’s submission is consistent with the decision in Ermogenous dealing with ascertaining the intention of the parties (see [68] above). The Senior Arbitrator made a factual finding regarding whether the disclaimer was furnished to the appellant’s parents and signed by them. The existence and contents of the disclaimer were part of the circumstances surrounding the alleged formation of the contract which the appellant seeks to prove. The disclaimer was objective evidence relevant to the intention of the parties. It is clearly relevant.
[113] Appellant’s submissions, [2.9(1)(c)].
[114] Respondent’s submissions, [22]–[25].
[115] Respondent’s submissions, [18].
The appellant submits there is no evidence that the form of the disclaimer in evidence was the same as that in use when the appellant first became a volunteer.[116] The respondent refers to the evidence of Ms Papadatos. It submits the requirement of a signed consent form was in place when the appellant commenced volunteering, and there is no evidence that the document changed thereafter.[117] The parties made submissions before the Arbitrator that touched on the disclaimer. It was not raised, at the Arbitration hearing, that the form of disclaimer furnished when the appellant commenced volunteering may have been in a different form to that which was put into evidence. It not having been raised previously, the appellant should not be permitted to raise it now. It is a topic on which it may well have been possible for the respondent to call evidence on if it were raised at first instance.[118]
[116] Appellant’s submissions, [2.9(1)(a)].
[117] Respondent’s submissions, [12].
[118] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7].
The appellant submits the disclaimer carried little or no weight, compared with the evidence of the appellant and Mr Lawler. The basis on which the Senior Arbitrator made findings, and on what evidence, is raised in Ground No. 3. This weight afforded to the disclaimer, together with other evidence, is dealt with below as part of the discussion dealing with Grounds Nos. 2 and 3. For reasons which appear there, the argument about the weight to be given to the disclaimer fails. The balance of the arguments raised by the appellant under Ground No. 1 have failed. Ground No. 1 fails.
For the sake of completeness, I note the respondent’s submission that the Senior Arbitrator could not make an adverse credit finding against Ms Papadatos or Mr Lawler, on the issue of whether the disclaimer was provided and signed, as those witnesses were not cross-examined. The respondent refers to Hancock. It depends on the circumstances of an individual case, but as a general proposition it is not necessary, in the Commission, to cross-examine a witness before the witness’s evidence can be rejected on an issue. There is no right to cross-examine in the Commission, it is discretionary.[119] The need for cross-examination depends on whether sufficient notice has been given to the witness of a relevant proposition, in the course of pre-trial preparation, on the basis of the evidence exchanged (including statements or affidavits), other pre-trial procedures or in the course of the case.[120] I note that, for reasons given above, I have concluded that the Arbitrator dealt with whether the disclaimer was, on the probabilities, provided and executed by reference to whether the Arbitrator drew a properly available inference. I do not understand the appellant’s submissions on this appeal to have directly challenged the credit of Ms Papadatos or Mr Lawler. The challenge rather, was to whether the Senior Arbitrator’s finding, regarding the provision and execution of the disclaimer, was properly available on the evidence.
[119] Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358, [37].
[120] New South Wales Police Force v Winter [2011] NSWCA 330, [77]–[85], Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3, [56].

GROUNDS NOS. 2 AND 3

These grounds go to whether the Senior Arbitrator erred in making the finding that there was not an intention to enter into legal relations. Ground No. 2 does this particularly by reference to the use by Mr Lawler of the term “consideration” in his statement, which is described as an “admission”. Ground No. 3 argues that the Senior Arbitrator made material findings that were erroneous having regard to the test in Bee. Each of these grounds ultimately goes to whether the Arbitrator’s finding, that there was not an intention to enter legal relations, and consequently the appellant was not a ‘worker’, was erroneous on the evidence. There is overlap between the grounds and it is convenient to deal with them together.

Appellant’s submissions

The appellant refers to Mr Lawler, the general manager of the respondent, who it describes as the “controlling mind of the company”. The appellant submits Mr Lawler made an admission regarding the existence of “consideration”. This was a material fact corroborating the existence of a quid pro quo relationship. The appellant submits Mr Lawler admitted that horse rides were “‘consideration’ for performing mundane duties which otherwise would have been performed by paid staff”. Daily horse rides were not guaranteed. Mr Vandescheur said he tried to get the volunteers a horse ride at least once per day.[121]
[121] Appellant’s submissions, [2.9(2)(a)]–[2.9(2)(d)].
The appellant submits the Senior Arbitrator misinterpreted the appellant’s evidence that she would not have done the “mundane tasks unless she had horse rides or lessons in exchange”. The Senior Arbitrator interpreted this as showing a lack of intention to form a legal relationship. The appellant submits that what it proved was that the “rides and lessons were consideration for the mundane tasks”, as Mr Lawler admitted.[122]
[122] Appellant’s submissions, [2.9(2)(e)], [2.9(3)(a)]–[2.9(3)(b)].
The appellant submits the Senior Arbitrator focussed on the discretion to appoint the appellant to a position. This was not relevant once the appointment was made, rather the focus should have been on the parties’ obligations.[123]
[123] Appellant’s submissions, [2.9(2)(f)].
The appellant refers to the Senior Arbitrator’s reference to the term “volunteer”, which he said recurred repeatedly in the “Information for Volunteers” document. The Senior Arbitrator said this showed the respondent, at no stage, intended to create a legal relationship.[124] The appellant submits there was no evidence this document applied to the appellant. The appellant submits also that “trail riding” did not appear in the Volunteer Job Roster, which supports the argument that trail rides were consideration or a reward.[125]
[124] Reasons, [144].
[125] Appellant’s submissions, [2.9(3)(c)].
The appellant refers to the reasons at [145]. If the appellant wished to be rostered on it was up to her to contact the respondent. If she did not make contact she would not be offered a position. The Arbitrator said that if the appellant attended the respondent and was not allocated a free ride or lesson she could go home. She was equally in control of the situation. The appellant submits the discretion of the respondent to appoint the appellant is not relevant, once the appointment is made. The appellant submits the appellant could not have simply left if a horse ride or lesson was not provided. The respondent’s agreement was to provide such things if the number of patrons or time permitted. The appellant submits it was akin to “payment by commission in exchange for mundane tasks otherwise performed by paid staff”. The respondent’s control meant it controlled who would be accepted on the next occasion, “when horse rides or lessons may happen”.[126]
[126] Appellant’s submissions, [2.9(3)(d)]–[2.9(3)(h)].
The appellant submits the focus should not be on the situation before the appellant was appointed. The appellant had already been appointed at the time of her accident. “The relationship should be characterised from the premise that the appointment had already been made.”[127]
[127] Appellant’s submissions, [2.9(3)(i)].
The appellant submits the relationship could not be all one way. The “possibility of horse rides and lessons were consideration in exchange for the tasks that otherwise [would] have been performed by paid staff”. The appellant submits that it defies common sense or experience that the appellant would work for no reward whatsoever. “There was no suggestion that the relationship was a one-off or short term work experience.”[128]
[128] Appellant’s submissions, [2.9(3)(j)]–[2.9(3)(l)].
The appellant’s submissions conclude:
“Overall, there is no reasonable characterisation of the relationship between Ms Guilbert and the respondent other than the legal relationship of employment. There was simply no reason for Ms Guilbert to perform mundane tasks for the respondent’s benefit without the ‘consideration’ of horse rides or lessons if there were enough patrons or time permitted.” (emphasis in original)[129]
[129] Appellant’s submissions, [2.9(3)(m)].

Respondent’s submissions

The respondent submits the Senior Arbitrator referred on multiple occasions in the reasons to Mr Lawler’s reference to “consideration”. He acknowledged the appellant’s submission that this should be treated as an admission. The respondent submits the Senior Arbitrator dealt with the alleged admission at [139] to [140] of the reasons. He there described the reference to the term as “merely incidental”.[130] The respondent submits that, based on the whole of the evidence, the Senior Arbitrator’s view was correct. There was no guarantee of trail rides or lessons, it was “variable and discretionary”. Participation in these was part of a volunteer’s role as such, not a reward for completing other tasks as a volunteer. The respondent refers to the evidence of its lay witnesses.[131]
[130] Respondent’s submissions, [28]–[29].
[131] Respondent’s submissions, [31]–[34].
The respondent submits the Senior Arbitrator acknowledged the appellant’s evidence about her motivation, and her evidence (noted in the reasons at [143]) that she would not be prepared to undertake the volunteer duties if she “did not have access to the free rides or lessons”. There was no evidence that a volunteer could demand trail rides or lessons after completing his or her tasks as a volunteer. There was no obligation on the respondent to allow volunteers to participate in trail rides or lessons. These were variable and in the discretion of the respondent. The respondent submits the discretionary nature of the trail rides or lessons is against a finding that there was an agreement for valuable consideration. The evidence does not support a finding that there was a legally enforceable contract. That finding in the reasons at [147] was correct.[132]
[132] Respondent’s submissions, [33]–[42].
The respondent submits there was “no onging obligation from either party”. This was relevant to whether there was a legal relationship between them. The Arbitrator’s approach, looking to an objective assessment of the state of affairs, was consistent with Ermogenous. The evidence should be looked at as a whole. The use of the term “consideration” by Mr Lawler was only one factor in the overall impression of whether there was an intention to create a legal relationship. The respondent submits there was no error of fact, law or discretion.[133] The respondent submits the Senior Arbitrator applied the principles in Bee, as well as the other authorities referred to in the reasons.[134]
[133] Respondent’s submissions, [44]–[47].
[134] Respondent’s submissions, [52].
The respondent submits the appellant was a volunteer who went on trail rides to assist the staff. She “drew a benefit from these trail rides as one may enjoy aspect[s] of any type of volunteering.” The respondent submits the trail rides and lessons “were part of the role of a volunteer along with the various tasks the appellant refers to as ‘mundane tasks’”. The respondent submits the entirety of the evidence supports that there was no ongoing obligation between the parties, the volunteering could cease at any time. It submits the appellant had no obligation to attend, or even to complete a shift once she had arrived and registered.[135]
[135] Respondent’s submissions, [50], [53].

Consideration

The appellant’s argument that the enquiry should not focus on the time before the appellant was “appointed”, but rather on the parties’ obligations after the appointment was made, rather misses the point. The term “appointment” is vague. The prime argument, which was decided contrary to the appellant’s position, went to whether there was an intention to enter legal relations at all. If there was not, then there was never a contract in place, there was no point in time “after the appointment” to focus on. The submission that the focus should have been on the parties’ obligations after the “appointment” additionally begs the question. If there was no intention to enter legal relations then there was no contract. If there was no contract there were no contractual obligations. The way in which an agreement came into existence is one of the factors that the passage from South Australia (quoted at [65] above) states may be relevant to whether an intention to enter into legal relations is present. The appellant’s submission that it involved error for the Senior Arbitrator to have regard to the way in which the alleged contract came into existence is rejected.
One of the points raised in these grounds is that the evidence does not establish that the ‘Information for Volunteers’ document applied to the appellant. That has been dealt with in the discussion regarding Ground No. 1. The Senior Arbitrator’s finding that the document was furnished to the appellant’s parents and executed was properly available on the evidence. It was part of the relevant evidence going to whether an intention to enter legal relations was present.
It follows that the material in that document was properly before the Senior Arbitrator and considered, in determining whether there was an intention to enter into legal relations. I do not accept the appellant’s submission that the document had no application to the appellant. The Senior Arbitrator regarded the repeated use of the term “volunteer” in the “Information for Volunteers” document as demonstrating that the respondent did not have an intention to create a legal relationship. That conclusion was properly available. The subject matter, the appointment of volunteers, including children, is not reflective of an intention to enter into a legal relationship.
The appellant submits that Mr Lawler’s statements admit that there was “consideration”, supporting the existence of a quid pro quo relationship. The relevant passage from Mr Lawler’s first statement is quoted at [25] above. Mr Lawler, in paragraph [14] of the first statement, described “horse rides” as the “consideration the volunteers received for performing their tasks”. At paragraph [15], he said that there was “no guarantee that volunteers would get to ride a horse, but it would be a very rare day that a volunteer didn’t get to ride a horse”. At paragraph [18], he said that the appellant “received free horse-riding lessons in lieu of wages on quieter days – yes that is correct, and I would imagine that’s fair”.
The Senior Arbitrator dealt with this evidence in the reasons at [138] to [140]. He described the concession that free horse riding lessons were in lieu of wages as one based on “grounds of fairness”, rather than a “concession of the existence of an employer/employee relationship”. The Senior Arbitrator described the use of the term “consideration” as “merely incidental”. There is no reason to think that Mr Lawler, in using the term “consideration”, was using it in the way that a lawyer would, in the context of a dispute about the existence of a contract. Some light is cast on this by Mr Lawler’s second statement, in which he said:
“The information contained in paragraph 10 of [the appellant’s] statement has largely been already addressed in my previous statement. Because there were typically more people wanting to volunteer than there were spots available for volunteers to help, we requested people to commit to starting at a certain time. Riding the horses is something the volunteers particularly enjoyed whereas the morning saddle up was not as enjoyable for most volunteers. We took the view that you can’t pick and choose just the good bits, you had to do some of both and if you aren’t happy to do the less enjoyable parts of the day there were plenty of other volunteers who will. We were pretty flexible if volunteers started late or finished early unless it was obvious that it was a regular pattern of avoiding the less enjoyable parts of what volunteers are asked to do.”[136]
[136] Mr Lawler’s second statement, [9]. (Paragraph 10 of the appellant’s statement dealt with her description of an expectation by the respondent of punctuality.)
It is inherent in the above passage that riding horses was regarded, by volunteers, as one of the “good bits” of a volunteer’s activities, and morning saddle up was regarded as one of the less “good bits”. Mr Lawler regarded each of these as “parts of what volunteers are asked to do”. That is, each formed part of the duties of volunteers. The riding part of the activities was not in some way a separate benefit, which was made available in exchange for performing the duties of a volunteer. When Mr Lawler’s statements are read together, it is apparent that he was not, in the first, referring to “consideration” in its technical sense, as the consideration that flows from one party to another pursuant to a contract.
This is consistent with part of the appellant’s evidence. In her statement at [16] she referred to occasionally being “directed to be involved with the lessons”. This is consistent with such involvement being part of her activities as a volunteer. However, the appellant described it as “the reward for undertaking work for all the other time”. It is unsurprising that the appellant likes some parts of the duties more than others. This does not mean that those parts she liked less were consideration flowing from her to the respondent, and those parts she liked more were consideration flowing from the respondent to her.
The above is consistent with the respondent’s submission:
“The appellant was a volunteer, who as part of her role as a volunteer, would go along on horse trail rides to assist the staff. The appellant drew a benefit from these trail rides as one may enjoy aspect [sic] of any type of volunteering. This does not mean that the parties intended to be legally bound in a contract for services [sic, contract of service]. It is clear from the evidence, as set out above, that the trail rides and the lessons were part of the role of a volunteer along with the various tasks the appellant refers to as ‘mundane tasks’.”[137]
[137] Respondent’s submissions, [50].
The appellant’s allegation is that she was engaged pursuant to a contract of service. Subject to this, I accept the submission set out in the preceding paragraph.
The appellant refers to her evidence that she would not have performed the mundane tasks, if not for the “horse rides or lessons in exchange”. This does not assist her. The evidence does not indicate that she made this proviso known to the respondent. Consistent with the passage from Ermogenous quoted at [68] above, “intention” is used in the usual contractual context, what would objectively be conveyed by what was said or done, having regard to the circumstances. It is not a search for “the uncommunicated subjective motives or intentions of the parties”.
The appellant submits that trail riding did not appear on the Volunteers Job Roster, which was consistent with it representing “consideration or a reward”. The Information for Volunteers document sets out a “variety of different task [sic]” which volunteers may be requested to undertake. These include “assist staff on guided rides”. It is apparent from that document that trail riding represented part of the duties that were allocated to volunteers from time to time, in their capacity as volunteers. The absence of that task from the job roster does not assist the appellant in establishing that trail riding was consideration or reward in exchange for other activities performed in the role of a volunteer.
The appellant submits horse rides and lessons, or at least the possibility of them given they were not always available, were the consideration in exchange for the tasks she performed. She submits it would defy common sense that she would work for no reward whatsoever. This ignores the fact that horse rides and lessons comprised part of the usual activities of a volunteer. They did not represent some additional activity that was outside the activities performed by a volunteer, which was provided to the appellant as consideration.
Grounds Nos. 2 and 3 fail. As none of the grounds have succeeded, the appeal is refused and the Senior Arbitrator’s decision is confirmed.

DECISION

The Senior Arbitrator’s decision dated 6 August 2019 is confirmed.

Michael Snell

DEPUTY PRESIDENT

4 March 2020