Smith v Workers' Compensation Regulator - [2022] QIRC 3

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Smith v Workers' Compensation Regulator [2022] QIRC 003
PARTIES:	Smith, Reece Bradley (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2019/216
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	10 January 2022
HEARING DATE:	13 July 2021
MEMBER:	Power IC
HEARD AT:	Gladstone
ORDERS:	1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. Failing agreement on costs, to be the subject of a further application to the Commission. 4. Liberty to apply.
CATCHWORDS:	WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – whether employment relationship existed – whether a contract was validly formed between the parties – appellant not a worker for the purposes of the Workers' Compensation and Rehabilitation Act 2003 (Qld)
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11, 108, sch 2 pt 1 s 3 and sch 6
CASES:	Bird v Commonwealth (1988) 165 CLR 1 Bist v London and South Western Railway Co [1907] AC 209 Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd [2017] NSWSC 1081 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 G Scammell and Nephew Ltd v HC and JG Ouston [1941] AC 251 Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11 Jones v Dunkel (1959) 101 CLR 298 Koman v The Guitar Gym Pty Ltd [2012] QCATA 195 Shane Joseph Farrell v Q-COMP [2013] QIRC 19 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Toowoomba Demolition and Earthmoving Pty Ltd atf Castle Family Trust v Workers' Compensation Regulator [2020] QIRC 30 Wilms v Workers’ Compensation Regulator [2015] QIRC 021 Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328
APPEARANCES:	Mr S.J. Deaves of Counsel instructed by Chris Trevor & Associates Lawyers for the Appellant. Mr P.B. O'Neill of Counsel, directly instructed by the Respondent.

Reasons for Decision

Mr Reece Bradley Smith ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to confirm an earlier decision of WorkCover Queensland ('the Insurer') rejecting the Appellant's application for compensation in accordance with s 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act').
The primary question to be determined in this appeal is whether the Appellant was a 'worker' within the meaning of s 11 of the WCR Act. The onus is on the Appellant to satisfy the Commission, on the balance of probabilities, that the Appellant satisfied s 11 of the WCR Act.

Background

The Appellant was ordinarily employed by Purcell's Engineering Pty Ltd as a sandblaster/powder coater and apprentice mechanic at all times relevant to this appeal.
The Appellant first made contact with Mr Timothy Egan of Wide Bay FMX in May 2018 with some casual communications as evidenced by the Facebook Messenger application and text message exchanges.[1] Mr Egan operated Wide Bay FMX as a side business which provided motocross stunt riders for shows and events.
[1] Exhibit 1.
In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QIRC 3
Decision Date: 10 January 2022

CaseChat Overview and Summary

In the matter of Smith v Workers' Compensation Regulator, the primary dispute centred on whether the Appellant was entitled to workers' compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld). The case arose following an incident that occurred while the Appellant was involved in an event at the Caboolture show. The key issue before the court was whether there was a contractual relationship between the Appellant and Mr Egan, which would deem the Appellant a 'worker' for the purposes of the Act. This would entitle the Appellant to compensation following the incident.

The court was tasked with determining two main legal issues: firstly, whether a contractual agreement existed between the Appellant and Mr Egan; and secondly, whether the Appellant could be considered a 'worker' pursuant to schedule 2 part 1 section 3 of the WCR Act. The court examined the evidence provided, which included witness testimony from the Appellant and text exchanges between the parties. The Appellant's testimony was noted to be inconsistent and unreliable, particularly regarding key events and conversations. Additionally, there was an unexplained missing message from the Appellant's Facebook Messenger thread, which was deemed critical to the Appellant's claim.

Upon reviewing the evidence, the court concluded that there was insufficient evidence to establish the existence of a contractual agreement between the Appellant and Mr Egan. The Appellant's testimony was found to be unreliable, and the missing message further undermined the Appellant's case. Consequently, the court determined that the Appellant did not meet the criteria to be considered a 'worker' under the Act. The appeal was dismissed, and the decision of the Workers' Compensation Regulator was upheld. Costs were to be determined in a further application to the Commission, with liberty to apply.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Workers' Compensation Regulator is confirmed.

3. Failing agreement on costs, to be the subject of a further application to the Commission.

4. Liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is agreed between the parties that the Appellant is not a worker pursuant to s 11(1) of the WCR Act, with the dispute based on whether the Appellant was a worker pursuant to s 11(2) which requires a consideration of sch 2 pt 1 s 3 of the WCR Act.Witness evidence The Appellant gave evidence in person and generally conceded where his memory was unclear. The Appellant gave contradictory evidence as to whether he had performed previously at the Gladstone Show, with his evidence changing from a denial to confirmation that he had previously jumped at the show to not jumping but riding around the show track. The Appellant also gave confused evidence in relation to a conversation about the Caboolture show. The Appellant gave evidence that he was told on the weekend of 31 May 2019 that he could not ride at the Caboolture show, which was then scheduled to be held in two weeks' time because of the weather. Despite being taken to the relevant text exchanges between the parties dated 6 June 2019 confirming the discussion that the Caboolture show was unlikely to proceed as rain was forecast, the Appellant maintained the unlikely proposition that the conversation about the weather had occurred almost a week earlier. I did not form the impression that the Appellant was deliberately evasive or dishonest with his evidence, however I do consider that his memory was unclear, and his evidence is consequently less reliable. The second concern regarding the Appellant's reliability relates to a missing message from the exchange between the Appellant and Mr Egan via Facebook Messenger. The missing message was from an exchange dated 27 March 2019, with the Appellant stating in the original message - 'Ok do u(sic) mind if I tag along with you guys?'. In cross-examination, the Appellant was unable to explain how the message came to be missing from the message thread that he had provided to the Respondent and had been admitted into evidence.[5] The Appellant confirmed that he had been using Facebook Messenger for many years, was aware that he had the capacity to delete parts of messages and confirmed that no one else had access to his mobile phone. The Appellant did not accept that this message was damaging to his claim and denied removing the message despite effectively conceding that the only possible person that could have removed the message was himself. [5] Exhibit 5. The Appellant submits the absence of the message from his Facebook Messenger thread was not due to conscious concealment, and that:(a)the Appellant did not put forward the thread with the missing message in support of his original application to the Insurer nor the review by the Respondent;(b)the Appellant's mother, in fact, dealt with the Insurer in relation to the application; The only message missing from the exchange of messages between the parties was the message that supports the contention that the Appellant was a volunteer rather than a contractor. The submission that the message may have been deleted inadvertently is not persuasive given the number of distinct steps required before a message of this type can be deleted. Knowledge as to how messages can be deleted is arguably commonly known to any regular user of Facebook Messenger. I accept the Appellant's submission that it would be improper for the Commission to undertake experiments in relation to the Messenger application for the purpose of determining issues in this matter, however this was not necessary when the process of deletion is already known to me through previous exposure to the application.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Respondent submits that given the evidence before the Commission surrounding the formation of the alleged 'contract' between the Appellant and Mr Egan that the Commission could not feel the necessary degree of actual persuasion that a contract was ever in fact brought into existence. Consideration The issues for determination are as follows:(a)whether a contractual agreement existed between the Appellant and Mr Egan; and if so(b)whether the Appellant is deemed to be a 'worker' pursuant to sch 2 pt 1 s 3 of the WCR Act. It is agreed between the parties that the Appellant is not a worker pursuant to s 11(1) of the WCR Act, with the dispute based on whether the Appellant was a worker pursuant to s 11(2) which requires a consideration of sch 2 pt 1 s 3 of the WCR Act.Witness evidence The Appellant gave evidence in person and generally conceded where his memory was unclear. The Appellant gave contradictory evidence as to whether he had performed previously at the Gladstone Show, with his evidence changing from a denial to confirmation that he had previously jumped at the show to not jumping but riding around the show track. The Appellant also gave confused evidence in relation to a conversation about the Caboolture show. The Appellant gave evidence that he was told on the weekend of 31 May 2019 that he could not ride at the Caboolture show, which was then scheduled to be held in two weeks' time because of the weather. Despite being taken to the relevant text exchanges between the parties dated 6 June 2019 confirming the discussion that the Caboolture show was unlikely to proceed as rain was forecast, the Appellant maintained the unlikely proposition that the conversation about the weather had occurred almost a week earlier. I did not form the impression that the Appellant was deliberately evasive or dishonest with his evidence, however I do consider that his memory was unclear, and his evidence is consequently less reliable. The second concern regarding the Appellant's reliability relates to a missing message from the exchange between the Appellant and Mr Egan via Facebook Messenger. The missing message was from an exchange dated 27 March 2019, with the Appellant stating in the original message - 'Ok do u(sic) mind if I tag along with you guys?'. In cross-examination, the Appellant was unable to explain how the message came to be missing from the message thread that he had provided to the Respondent and had been admitted into evidence.[5] The Appellant confirmed that he had been using Facebook Messenger for many years, was aware that he had the capacity to delete parts of messages and confirmed that no one else had access to his mobile phone. The Appellant did not accept that this message was damaging to his claim and denied removing the message despite effectively conceding that the only possible person that could have removed the message was himself. [5] Exhibit 5. The Appellant submits the absence of the message from his Facebook Messenger thread was not due to conscious concealment, and that:(a)the Appellant did not put forward the thread with the missing message in support of his original application to the Insurer nor the review by the Respondent;(b)the Appellant's mother, in fact, dealt with the Insurer in relation to the application;