The Camden Show Society Inc v Gajkowski

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	The Camden Show Society Inc v Gajkowski [2017] NSWWCCPD 55
APPELLANT:	The Camden Show Society Inc
FIRST RESPONDENT:	Mitchell Jack Gajkowski by his tutor Megan Judd
SECOND RESPONDENT:	Australian Bushman’s Campdraft and Rodeo Association Ltd
APPELLANT’S INSURER:	CGU Workers Compensation (NSW) Ltd
SECOND RESPONDENT’S INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-644/17
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	31 May 2017
DATE OF APPEAL HEARING: DATE OF APPEAL DECISION:	21 November 2017 15 December 2017
SUBJECT MATTER OF DECISION:	Whether a competitor in a rodeo is taken to be a worker; application of cl 15 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998; meaning of “engaged for fee or award”; meaning of “entertainer”; meaning of “public performance”; fresh evidence on appeal; s 352(6) of the 1998 Act
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Ms K Balendra, instructed by Moray & Agnew
First Respondent:	Mr G Reynolds SC and Mr F Curran, instructed by Attwood Marshall Lawyers
Second Respondent:	Ms J Lucy, instructed by Hall & Wilcox
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 31 May 2017 is revoked and the following order is made in its place: “Award for the respondents.”

INTRODUCTION

Prior to his injury on 4 April 2014, Mr Michael Gajkowski (also known as Michael Judd) regularly participated in rodeo events as a bull rider. He was taking part in a rodeo at the Camden Showground in the open bull riding category when he suffered a head injury resulting in severe brain damage.
Mr Gajkowski contends that he is entitled to workers compensation benefits as he is taken to be a worker pursuant to cl 15 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Clause 15(1)(c) provides that a person, engaged for fee or reward, to take part as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge is, for the purposes of the 1998 Act, taken to be a worker employed by the person conducting or holding the contest or public or other performance.
The issues in this appeal concern whether Mr Gajkowski is a deemed worker. In particular the issues concern: whether there was a process of “engagement”, whether he was provided a “fee or reward”, whether he was an “entertainer”, and whether the appellant was conducting or holding a contest or public or other performance within the meaning of cl 15(1) of Sch 1 to the 1998 Act.

DETERMINATION

Mr Gajkowski commenced proceedings in the Commission claiming compensation benefits from both the Camden Show Society (CSS), who conducted the rodeo, and from the Australian Bushmen’s Campdraft and Rodeo Association Ltd (ABCRA), who provided administrative and other support. Whether either entity conducted or held the rodeo was the subject of dispute.
In proceedings before a Commission Arbitrator, Mr Gajkowski established that he was entitled to workers compensation benefits as a deemed employee pursuant to cl 15 of Sch 1 to the 1998 Act against both CSS and ABCRA in equal proportions.
Both CSS and ABCRA appealed the Arbitrator’s determination. Both appeals were heard together on 21 November 2017. For the reasons given in Australian Bushman’s Campdraft and Rodeo Association Ltd v Gajkowski [2017] NSWWCCPD 54 (Gajkowski No 1) ABCRA’s appeal was upheld.
The grounds of appeal in this appeal are essentially the same as those argued and decided in Gajkowski No 1. For the reasons given in that matter, this appeal is also upheld.

ORDER

The Arbitrator’s determination of 31 May 2017 is revoked and the following order is made in its place:
“Award for the respondent.”

Judge Keating
President

15 December 2017

In this case, the Camden Show Society Inc brought proceedings against Mr Gajkowski, a competitor in a rodeo event, seeking a declaration that he was not an employee of the Camden Show Society Inc. The parties disputed whether Mr Gajkowski was a worker, and thus entitled to workers compensation, under the Workplace Injury Management and Workers Compensation Act 1998. The matter was heard and determined by the Industrial Court of New South Wales. The Court had to determine whether Mr Gajkowski was a worker for the purposes of the 1998 Act, and in particular whether he was engaged for a fee or an award, and whether he was an entertainer performing in public. The Court also had to consider the admissibility of fresh evidence on appeal.

The Court found that the term “engaged for fee or award” was ambiguous and needed to be interpreted in context. It held that Mr Gajkowski was not engaged for a fee or an award, but rather for the opportunity to compete. The Court also found that Mr Gajkowski was not an entertainer performing in public, as he was not performing for the public but rather competing in a rodeo event. The Court held that the fresh evidence was admissible as it was relevant to the issue of whether Mr Gajkowski was a worker. The Court concluded that the Arbitrator had erred in law in finding that Mr Gajkowski was not a worker, and thus entitled to workers compensation.

The Court revoked the Arbitrator’s determination and made an order that the respondents were to be awarded compensation. The Court held that the meaning of “engaged for fee or award” and “entertainer” were not self-evident, and that the context in which they were used was important in determining their meaning. The Court also held that fresh evidence could be admitted on appeal if it was relevant to the issues being determined. This case provides guidance on the interpretation of these terms and the admissibility of fresh evidence on appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established