The Camden Show Society Inc v Gajkowski

[2017] NSWWCCPD 55

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

1. 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.

2. 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.

3. 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

1. 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.

2. 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.

3. 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.

4. 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

1. 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