Rosebery-Toorak Football Club v Fitzallen
[2004] TASSC 65
•2 July 2004
[2004] TASSC 65
CITATION: Rosebery-Toorak Football Club v Fitzallen [2004] TASSC 65
PARTIES: ROSEBERY-TOORAK FOOTBALL CLUB
v
FITZALLEN, Andrew Stephen
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 111/2003
DELIVERED ON: 2 July 2004
DELIVERED AT: Hobart
HEARING DATE/S: 1 June 2004
JUDGMENT OF: Crawford, Evans and Blow JJ
CATCHWORDS:
Workers Compensation – Entitlement to and liability for compensation – Persons entitled to compensation – Who is a "worker" – Miscellaneous cases – Playing assistant senior coach of football team – Whether entitled to remuneration for other than participating as a contestant in a sporting activity or engaging in training or preparing himself.
Workers Rehabilitation and Compensation Act 1998 (Tas), s7.
Aust Dig Workers Compensation [98]
REPRESENTATION:
Counsel:
Appellant: K E Read
Respondent: P W Tree
Solicitors:
Appellant: Abetz Curtis
Respondent: McGrath & Co
Judgment ID Number: [2004] TASSC 65
Number of paragraphs: 16
Serial No 65/2004
File No FCA 111/2003
ROSEBERY-TOORAK FOOTBALL CLUB v ANDREW STEPHEN FITZALLEN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
EVANS J
BLOW J
2 July 2004
Orders of the Court
Appeal dismissed.
Serial No 65/2004
File No FCA 111/2003
ROSEBERY-TOORAK FOOTBALL CLUB v ANDREW STEPHEN FITZALLEN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
EVANS J
BLOW J
2 July 2004
At about 3pm on 3 August 2002 the respondent suffered a broken leg while playing football with the appellant ("the club") at Wesley Vale. He claimed workers compensation. The club disputed the claim. There was a hearing before the Workers Rehabilitation and Compensation Tribunal and the claim was dismissed because the Commissioner who constituted the Tribunal considered that the respondent was deemed not to be a worker by the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s7. The section is in these terms:
"7 A person is deemed not to be a worker within the meaning of this Act while he is, pursuant to a contract –
(a) participating as a contestant in any sporting or athletic activity;
(b)engaged in training or preparing himself with a view to his so participating; or
(c) travelling in connection with his so participating or being so engaged –
if, under that contract, he is not entitled to any remuneration other than remuneration for the doing of those things."
The respondent successfully appealed to a single judge under s63. The club appealed to this Court.
The case before the Tribunal
To understand the reasons of the learned judge for upholding the appeal, it is necessary to deal with some of the case before the Tribunal. Importantly, the evidence included two agreed facts. The first was that the respondent was engaged by the club pursuant to a contract dated 13 February 2002 as assistant senior playing coach for the 2002 season, and the second was that the contract, the terms of which were annexed to the statement of agreed facts and they are set out below, was the contract of engagement between them. The contract was contained in a letter that was signed by the respondent and the president of the club. It was in these terms:
"Dear Andrew,
I am pleased to offer you the position of Playing Assistant Senior Coach of the Rosebery-Toorark [sic] Football Club for season 2002. Reporting to the President of the club. Your official duties will commence on the 8th of February 2002 and conclude on the 31st September 2002.
The following conditions apply to this offer.
Duties
As Assistant Senior Coach of the club you will be responsible for the following:
following [sic]
· Assist the senior coach as and when required
· Assist in the organisation and conducting of training
· Assist in team selections
· (If practicable), representing the club when required to do so
· Attend committee meetings as and when required
Remuneration
Your salary will be as follows, payable at a mutually agreeable time between both parties.
Coaching / Playing Fee $2000
Less taxation on coaching/playing fee (700)
Total $1300 (cheque)
Superannuation Payment of $160
Subject to the clause listed over page as 'Tenure'
Travel
All travel expenses will be your responsibility, other than those approved by the President for reasons relating directly to club matters.
Tenure
This contract may be terminated by either party in writing by no less than two weeks notice.
· Should you at any time fail to meet your required duties or misrepresent the club in an untoward manner, the club shall have the power to terminate this contract.
· In the event that the club terminates the contract you will be entitled to all payments owing to you up until the termination date, based on a salary of $166 (less tax) per senior NWFA games played by played [sic] the club in 2002.
· If you wish to terminate the contract you will be required to refund the club, within fourteen days from the date of resignation any coaching and playing fees that exceed that of $166 per games played in 2002.
Acceptance
...".
It was common ground that the respondent was to be paid the remuneration of $2,000 for playing football with the club and for assisting with coaching. It was also common ground that the respondent suffered his injury while participating as a contestant in a sporting activity. See the Act, s7(a).
Evidence was given by the respondent and the public officer of the club, Mr Drake. The club sought to rely on it as establishing that the respondent was only employed to play football with the club and to assist with the coaching of players, that he was paid a remuneration to do only those things and he was not paid, nor was he in fact obliged by the contract, to assist in team selections, to represent the club when required to do so and to attend committee meetings. In other words, it was the club's case that the oral evidence established that the respondent was only obliged to perform, and was only paid remuneration for performing, the coaching duties particularised in the first two dot points in the contract document and he was not obliged to perform, and was not paid remuneration for performing, the coaching duties particularised in the last three dot points. We point out that such a case should not have been accepted by the Commissioner so long as it continued to be an agreed fact that the written contract document was the contract by which the respondent was engaged by the club. There was no ambiguity in the relevant terms of the written contract that required evidence to resolve it. What the club sought to have the Tribunal find concerning the terms of the contract was plainly contrary to the terms in the document that the parties agreed was the contract between them.
The submission of the club's counsel to the Tribunal was that all the contract required the respondent to do, and all he was paid for doing, was to assist with coaching and to play and that within the terms of the expressions used in s7(a) and (b), his performance of those obligations involved him participating as a contestant in a sporting activity (par(a)) and engaging in training and preparing himself with a view to his participating as a contestant in a sporting activity (par(b)).
Counsel for the respondent submitted to the Tribunal that the contract required him to do things other than those listed in pars(a), (b) and (c) of s7, such as taking training, in other words coaching in the absence of the head coach, assisting with training, in other words assisting with coaching when the coach was present, and assisting in team selection.
The determination of the Commissioner
In his reasons for dismissing the respondent's application for compensation, the Commissioner made the following findings and determinations:
1It was clearly the intention of the Club that the respondent was remunerated solely for the performance of his coaching duties, and training for and playing football.
2Although other duties were listed in the contract, the intention of the Club was that the respondent was not to be remunerated for them and that it was accepted that their performance would not necessarily be enforced.
3The respondent's attendance at match committee meetings to help select the football team was part of or incidental to his coaching role.
4The respondent's duties as stated in the written contract that he "attend committee meetings as and when required" and "(if practicable), representing the club when required to do so" were "ancillary only and were indicative of his club membership as these are activities common to other Club members", and the respondent "did not expect to be paid for any such attendance".
5Given the oral evidence as to the belief and intention of the parties and the terms of the contract itself, the remuneration paid under the contract was for assisting the coaching of the football team, training and playing football.
6The respondent was not entitled to remuneration under the contract for doing anything other than those matters set out in s7(a), (b) and (c) and accordingly, he was deemed not to be a worker within the meaning of the Act.
The grounds of the first appeal
The grounds of the first appeal were as follows:
1The Tribunal erred in law when it determined that s7 deemed the respondent not to be a worker within the meaning of the Act.
2The Tribunal erred in law when it determined that the respondent was not entitled to remuneration other than remuneration in respect of performing the activities set out in pars(a), (b) and (c) of s7.
3The Tribunal erred in law when it accepted the evidence of Mr Drake and put weight on it, given that Mr Drake was not a relevant officer of the Club at the time of the engagement of the respondent for he had no involvement in that engagement.
4The Tribunal erred in law when it found that the respondent's coaching duties fell within the expressions used in pars(a), (b) and (c) of s7.
The learned judge's reasons for allowing the appeal
The following is a summary of his Honour's reasons:
1It was an agreed fact that the contract of engagement was contained in the document dated 13 February 2002 and it was not suggested to the Tribunal or his Honour that the contract contained any terms other than those set out in that document.
2Construction of a written contract involves a determination of the meaning of the words used by the parties in the document and the legal effects of those words. Its construction is a question of law. Moore v Garwood (1849) 4 Exch 681; Francis v Lyon (1907) 4 CLR 1023 at 1040; Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724 at 736.
3The question of law is, what was the intention of the parties at the time of entry into the written contract? It is to be answered by reference to the words used in the contract. River Wear Commissioners v Adamson (1877) 2 App Cas 743 at 763; L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261. It is an objective inquiry. The question is, what would a reasonable person in the position of each of the parties to the contract have regarded as the other party's intention from the words used? Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 at 996; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 62. "The basic question is not what the parties inwardly intended, but what intention they indicated." The Parol Evidence Rule (1976) by D W McLauchlan at 45.
4If the whole of the contract is in writing, the parol evidence rule applies to the issue of its construction, that is, to ascertain the parties' intentions. Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352. [The parol evidence rule excludes extrinsic evidence when determining the meaning or legal effect of words used in a document which the parties have adopted as contractual or as evidencing their contract.] One exception to the rule is that extrinsic evidence may be admitted to ascertain the factual matrix against which the parties contracted. Another exception is to resolve an ambiguity arising out of the written words used by the parties.
5There was no relevant ambiguity in the terms of the written contract in this case.
6The parol evidence used by the Tribunal to interpret the [written] contract was "inadmissible because it was irrelevant to the question of law that the tribunal or court has to determine". Virtually all of that evidence was about what the witnesses understood the terms of the contract to mean. Because it used irrelevant evidence to ascertain the terms of the contract, the Tribunal fell into error.
7The contract between the parties to this litigation spelled out the duties of the appellant [as assistant senior coach] as follows:
·assist the senior coach as and when required;
·assist in the organisation and conducting of training;
·assist in team selections;
·(if practicable), represent the club when required to do so; and
·attend committee meetings as and when required.
8The first issue raised by the Act, s7, was not whether the respondent performed any one or more of those duties, nor whether he was in fact required to perform any one or more of those duties, but whether he was "entitled to any remuneration" for doing those duties. The contract provided for a single sum as remuneration for performing all of those prescribed duties. Although that sum was described as "Playing/Coaching fee" it did not mean that the payment was only for playing and coaching. The respondent's duties as "Playing Assistant Senior Coach" were clearly spelled out in the contract and the remuneration clearly applied to all those duties. The contract entitled the respondent to remuneration for (inter alia) representing the club (if practicable) when required to do so and for attending committee meetings as and when required.
9The second issue raised by s7 was whether the respondent was entitled to remuneration for anything other than the matters set out in pars(a), (b) and (c) of s7. Representing the club (if practicable) when required to do so and attending committee meetings as and when required, did not fall within the scope of any of those paragraphs and, accordingly, the deeming provision enacted by s7 did not apply to the respondent.
The appeal to this Court
The club appealed to this Court on two grounds:
1That the learned judge erred in law in finding and determining that there was a relevant error of law on the part of the Tribunal; and
2That the learned judge erred in law in failing to find that on the face of the contract itself the provisions of the Act, s7, were not (sic) applicable.
The appeal may be determined on a simple basis. As a general rule, a person who is paid a remuneration to play for a football club is deemed not to be a worker under the Act, because of s7, while he is playing in a match for the club. Such a person cannot avoid the provisions of the section, if the contract under which he is entitled to be paid remuneration requires him to do no more than participate as a contestant in matches if selected and engage in training or preparing himself with a view to him so participating. If on the other hand, a person is paid a remuneration to coach a football team, whether or not the duties for which he is paid also include playing, he is not deemed by s7 not to be a worker under the Act while he is playing in a match for the club, because it cannot be said that under his contract, he is not entitled to remuneration other than remuneration for doing the things particularised in the paragraphs of s7.
Contrary to what was submitted by counsel for the club, a person who merely coaches a football team is not by virtue of his role as coach, participating as a contestant in a sporting activity, even if he is fulfilling the role of coach at a time when he is attending one of the team's matches. Counsel submitted that the expression in par(a) of s7, that is, "participating as a contestant in any sporting activity or athletic activity", extends to members of a football team who are not actually playing but who are sitting on the reserve bench as reserves or interchange players and it extends to a coach or assistant coach, regardless of whether he is also a player. It may well be correct to say that reserves or interchange players should be regarded as participating as contestants in the match that is the relevant sporting activity for the purposes of par(a), even if they do not in fact run onto the field to play, although it is unnecessary for the Court to decide that. However, we do decide that the natural and ordinary sense of the words used in the paragraph do not include a person who participates in a football match merely as a coach. Such a person is not a contestant, in the natural and ordinary meaning of that word. The players are the contestants. The respondent was entitled under the contract to be paid his remuneration for performing the duties and responsibilities of assistant coach, regardless of whether he played or not.
We are of a similar view with regard to par(b) of s7. A football coach, whether or not an assistant coach, who organises and conducts training by the players is not thereby "engaged in training or preparing himself with a view to his so participating" as a contestant. The respondent was paid remuneration for doing more than that in connection with training. A person who engages in training is a person who trains. A person who manages, organises or conducts training is not thereby "engaged in training or preparing himself with a view to be participating" as a contestant for having done so.
For these reasons the appeal will be dismissed. Counsel for the appellant conceded that if the Court interpreted s7 in the way it does, that is the only appropriate course.
Therefore, it is unnecessary for the Court to determine the other arguments advanced by the appellant's counsel. However we do wish to comment on some observations made by the learned judge concerning the Act, s49, which provides that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit. His Honour expressed the view that, at least once the terms used by the parties have been ascertained, that provision does not make evidence of the parties' subjective contractual intentions admissible. In this case, because it was an agreed fact that the letter quoted above constituted the parties' contract and its terms were unambiguous, evidence of the parties' subjective intentions was valueless and irrelevant. But, as a general rule, we think that s49 permits the Tribunal to inform itself as to the terms of a contract by receiving secondary evidence of the contract, and even by receiving evidence as to parties' subjective intentions and their perceptions of what they agreed to. As his Honour noted, Judge Davey sitting as a vice president of the Victorian Civil and Administrative Tribunal, which is not bound by the rules of evidence, has suggested that the parol evidence rule might not prevent that tribunal from receiving evidence as to the intentions of the parties to a written contract: Third Grange Pty Ltd v Thomas Owen Pty Ltd [2000] VCAT 37 at pars8 - 9. In our view the Act, s49, compels the conclusion that such evidence is admissible. When the terms of a contract are in issue in proceedings before the Tribunal, it may inform itself by receiving such evidence. If, however, a finding is able to be made as to the wording of the parties' contract, written or oral, without the assistance of such evidence, and the words used are unambiguous, that evidence would be of no value.
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