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Smith v Workers' Compensation Regulator QIRC 3
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Smith v Workers' Compensation Regulator  QIRC 003
Smith, Reece Bradley
Workers' Compensation Regulator
Appeal against decision of Workers' Compensation Regulator
10 January 2022
13 July 2021
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)
Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 11, 108, sch 2 pt 1 s 3 and sch 6
Bird v Commonwealth (1988) 165 CLR 1
Bist v London and South Western Railway Co  AC 209
Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd  NSWSC 1081
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
G Scammell and Nephew Ltd v HC and JG Ouston  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  QCATA 195
Shane Joseph Farrell v Q-COMP  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  QIRC 30
Wilms v Workers’ Compensation Regulator  QIRC 021
Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328
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.
- 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. Mr Egan operated Wide Bay FMX as a side business which provided motocross stunt riders for shows and events.
- In early 2019, Mr Egan had been contracted by the Gladstone Show Society to put on a motocross stunt performance at the Gladstone Show on 7 June 2019.
- On 7 June 2019, the Appellant travelled to the Gladstone Show and whilst attempting a jump during a practice session, sustained injuries including tibial, talus, and facial fractures.
- The Respondent confirmed the Insurer's decision to reject the Appellant's subsequent claim for compensation on the basis that he was not a 'worker' for the purposes of the WCR Act.
Grounds for appeal
- The Appellant appeals the Respondent's decision on the grounds that he was working as a contractor under a contract for service for Wide Bay FMX when he was injured. It is contended that the Appellant was a contractor pursuant to sch 2 pt 1 s 3 and was consequently deemed to be a worker for the purposes of s 11 the WCR Act.
- Section 108 of the WCR Act provides that compensation is payable for an injury sustained by a 'worker'.
- Section 11 of the WCR Act defines who is a worker:
11 Who is a worker
- (1)A worker is a person who—
- (a)works under a contract; and
- (b)in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.
- (2)Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
- (3)However, schedule 2, part 2 sets out who is not a worker in particular circumstances.
- (4)Only an individual can be a worker for this Act.
- Schedule 2, part 1, section 3 of the WCR Act provides:
Part 1 Persons who are workers
3 A contractor, other than a contractor mentioned in part 2, section 4 of this schedule, is a worker if—
- (a)the contractor makes a contract with someone else for the performance of work that is not incident to a trade or business regularly carried on by the contractor, individually or by way of a partnership; and
- (b)the contractor—
- (i)does not sublet the contract; or
- (ii)does not employ a worker; or
- (iii)if the contractor employs a worker, performs part of the work personally.
- The dictionary in sch 6 of the WCR Act provides the following definition for the term 'contractor':
contractor means a person who has contracted with someone else for the performance of work or provision of a service.
- The Appellant submits the main contest on the evidence is whether there was a contract between the Appellant and Mr Egan, and that this is supported by communications between the parties using Facebook Messenger and text messages.
- Prior to 7 June 2019, the Appellant engaged in communication via Facebook Messenger and text messaging with Mr Egan, the authorised representative of Wide Bay FMX. The Appellant contends these communications gave rise to a contract between Wide Bay FMX and the Appellant for the Appellant to perform motorcycle stunts at the Gladstone Show in exchange for a payment in the sum of $150.00.
- The Appellant submits that the contemporaneous written evidence demonstrates that an agreement had been reached between the Appellant and Mr Egan that the Appellant would perform in Mr Egan's performance at the Gladstone Show in exchange for a payment of $150.00. The Appellant contends that no greater formality is needed to establish the existence of a contract.
- The Appellant asserts that he qualifies as a worker by virtue of s 11(2) of the WCR Act which requires a consideration of sch 2, with pt 1 of sch 2 defining a number of categories of person who are workers.
- The Appellant submits that the evidence demonstrates that the Appellant meets all of the criteria of s 3 of pt 1 of sch 2 in that:
- (a)he is a contractor;
- (b)he is not a contractor mentioned in pt 2 s 4 of the schedule;
- (c)he has made a contract with someone else, namely Wide Bay FMX, Mr Egan;
- (d)the contract was for the performance of work;
- (e)the work was not incident to a trade or business regularly carried on by the Appellant; and
- (f)the Appellant did not sublet the contract or employ a worker.
- The Appellant relies upon the decision in Toowoomba Demolition and Earthmoving Pty Ltd atf Castle Family Trust v Workers' Compensation Regulator ('Toowoomba Demolition') with respect to the interpretation of sch 2 pt 1 s 3(a) of the WCR Act.
- The Appellant notes the Respondent's view that the interpretation of s 3(a) requires that the contractor must be carrying on a trade or business regularly as an individual or by way of partnership. In contrast, the Appellant submits that s 3(a) seeks to limit the nature of the work being performed rather than impose a requirement on the contractor, contending that to do so would be contrary to the plain language of the section and inconsistent with the decision in Toowoomba Demolition.
- Alternatively, the Appellant submits that the construction proposed by the Respondent is no more open than the construction proposed by the Appellant. Consistent with the requirement to interpret beneficial legislation beneficially, and in particular to interpret workers' compensation legislation to favour the worker, the Appellant's construction ought to be preferred.
- The Respondent submits that the circumstances surrounding the formation of the alleged contract are so vague that the Commission could not be satisfied that a contract was ever created. The Respondent contends that the evidence of Mr Egan should be accepted that at no time did he ever offer to pay the Appellant $150.00 to perform at the Gladstone Show and as a consequence the parties did not reach a consensus ad idem.
- With respect to the interpretation of sch 2 pt 1 s 3, the Respondent contends that it only applies in circumstances where the contractor actually engages in a trade or conducts a business as a contractor. This is a pre-requisite which has to be satisfied before the deeming provision in pt 1 s 3 can apply.
- The Respondent submits that the Appellant cannot satisfy the requirements of sch 2 pt 1 s 3 as he has always maintained employment as a PAYG employee.
- 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.
- 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.
- 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. 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.
- 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;
- (c)the Appellant produced the thread for the first time when requested by his lawyers the day prior to the hearing and disclosed it to the Respondent;
- (d)the Appellant did not deny sending the message that was missing from the thread; and
- (e)it is entirely conceivable that the message was deleted inadvertently.
- 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.
- The Appellant submits that it was unlikely that there had been any nefarious deletion of the message as it was the Appellant who provided the printout, albeit missing one message, to the Respondent the evening before the hearing. It would seem to me that the Appellant determined that the printout of the conversation would be of assistance to his appeal and that is why it was produced to the Respondent, as required in order for it to be admitted at the hearing. The fact that it had not been produced earlier in the process does not, in my view, assist the Appellant's submission that there was no conscious concealment. If Mr Egan had not retained the original version of the message exchange, the deleted message would not have been identified and the message thread would have been admitted into evidence without the critical message, significantly bolstering the Appellant's case.
- No other reasonable explanation was provided as to how the message came to be removed from the Appellant's Messenger thread. It seems to me that it is implausible that the message was deleted inadvertently, and that the most likely explanation was that it was deleted in an attempt to misrepresent the nature of the conversation with Mr Egan.
- The Appellant's evidence regarding this issue was simply not credible and casts doubt over the reliability of his broader evidence.
- Mr Egan's evidence was forthright and consistent. He maintained that he had not offered to pay the Appellant to ride at the Gladstone Show.
- I accept that both the Appellant and Mr Egan had incentives to construe the circumstances surrounding the injury in a manner supporting or denying the existence of a contract. Mr Egan had an incentive to deny the existence of any contact between himself and the Appellant because he did not have in force a policy of workers' compensation insurance at the time of the injury. The Appellant also had an incentive to maintain that there was a contract because of potential access to both statutory benefits and common law damages.
Jones v Dunkel inference
- The Appellant submits that a Jones v Dunkel inference should be drawn against the Respondent arising from the decision by the Respondent not to call the other three riders, Mr Brody Booth, Mr Hogan Dahtler and Mr Adam Thorogood. The relevant principles of Jones v Dunkel have been summarised by Deputy President O'Connor (as he then was) in Shane Joseph Farrell v Q-COMP:
The principle in Jones v Dunkell at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue.
Windeyer J, at 320 to 321, embraced the notion of "fear of exposure" on the part of the party who fails to call the witness, quoting Wigmore on Evidence:
"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidate, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party."
In Manly Council v Byrne & Anor, Campbell J cited the joint judgment of Gibbs A-CJ, Stephen, Mason and Aickin JJ in the High Court's decision in Brandi v Mingot9 to support the proposition that:
"Insofar as the passage from Wigmore approved the drawing of an inference that a witness if called would have exposed facts unfavourable to the party who failed to call that witness, it is not the law in Australia . . . [L]ater cases confirm that the fullest extent of the inference which can be drawn is that the evidence which was not called would not have helped the party who failed to call the witness" and at paragraph 51:
"Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn."
- The Jones v Dunkel rule operates where there is an unexplained failure by a party to give evidence. In particular circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party. The party asking for the inference to be drawn must provide that the witness had knowledge of the relevant matter and the witness is 'available' to litigate who did not call them.
- The Appellant submits that Mr Egan was still in contact with Mr Booth, Mr Dahtler and Mr Thorogood and there was no reason they could not have given evidence at the hearing. The Appellant submits that a Jones v Dunkel inference ought to be drawn that their evidence would not have assisted the Respondent's case.
- The Appellant gave evidence that he had an existing friendship with Mr Booth and Mr Dahtler prior to June 2018 and equally no reason was given as to why he could not have called these witnesses. Equally problematic for the Appellant is that it was not clear what evidence the proposed witnesses could have given regarding any agreement between the Appellant and Mr Egan. A suspicion that a witness may have relevant knowledge is insufficient to satisfy this requirement. Consequently, I decline to draw such an inference.
- The Respondent's submission that a Jones v Dunkel inference should be drawn in relation to the failure to call the Appellant's parents and girlfriend is similarly rejected as the relevance of any evidence from these proposed witnesses was not made out.
Did a contract exist between Mr Egan and the Appellant?
- To determine whether a contract existed between Mr Egan and the Appellant, the principles of contract law must be considered.
- As outlined by Deputy President Kaufman in Wilms v Workers' Compensation Regulator ('Wilms'), at the heart of the definition of 'worker' is the notion that the person is party to a contract. For a binding contract to exist, an intention to create legal relations must exist along with the following elements:
- (a)offer by one party;
- (b)communicated acceptance by the other party; and
- In Wilms, Deputy President Kaufman summarised the requirements of a contract as outlined in Cheshire & Fifoot's Law of Contract (10th Australian Edition):
1.16 Making a contract. The major elements of formation of a contract are usually identified as following:
- Agreement (offer and acceptance);
- Intention to create legal relations; and
- Certainty of terms.
Offer, acceptance and giving consideration together constitute a process that, to make a contract requires:
- At least two parties;
- A promise or undertaking by at least one of them; and
- An exchange between them, either promise-for-promise (bilateral contract) or promise-for-act (unilateral contract).
Exchange. There can be no offer, acceptance or consideration unless the parties' agreement effects an exchange. According to a classic formula, 'the relation of a quid pro quo must subsist between' the promises of each party (in a bilateral contract) or the promise of one and the act of the other (in a unilateral contract). In short, the party seeking to enforce a contractual undertaking must show that she or he paid a specified 'legal price' (gave requested consideration) in return for that undertaking.
Offer. To show that a party made an offer it is necessary to identify an express of implied promise by that party to perform a specified act in exchange for another party's:
- Specified counter-promise; or
- Specified act.
Acceptance of an offer occurs when an offeree makes the specified counter-promise (bilateral contract) or performs the specific act (unilateral contract) in response to the offer.
Consideration. In a bilateral contract, each promise is the consideration for the other promise. In a unilateral contract, the promise is the consideration for the request act, and the request act is consideration in the legal sense ('good consideration') unless it has some value, at least according to the idiosyncratic rules of the law on this topic. If a promise or act has no value in the eye of the law, it is not good consideration. A promisor who requires a counter-promise or act of no value from the promise is making a conditional gift, not a contract.
Intention to create legal relations need not be present subjectively. In the law of contracts, intention of intentional states are usually established objectively, that is, a party will be held to that intention which would be reasonably inferred in the circumstances.
Certainty and completeness is required, but only in relation to essential terms. The court has wide powers to imply terms and to fix meanings.
- The requirement that parties intended to create a relationship which gave rise to obligations enforceable by law was considered by the High Court in Ermogenous v Greek Orthodox Community of SA Inc, stating:
"It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts".
- The Facebook Messenger messages between the parties up until 24 January 2019 do not relate to the Gladstone Show but provide some insight into the nature of the discussions between the Appellant and Mr Egan. On 24 January 2019, the following Facebook Messenger exchange occurred:
Appellant: Hey Tim keen to start jumping to truck soon if u guys are looking for another rider
Mr Egan: yeh sweet if u hear of any one chasing shows up ur way let me know wat tricks do u have down
Appellant: No footer cans, heel clicker, bar hop sorter trick I made up my self, whip, just started doing no footer cans to heel clicker, smallish superman grab, can drag a tender etc.
Mr Egan: okk sweet as
Appellant: Threw my first flip the other weekend actually turned out the goods, looks good enough to take it to dirt but yeah mate I'll spread it around up hear and see wat I can snag
Appellant: Would be good to get the gig out at benaraby drags and burnout comps etc
Appellant: Most off the events up here crank from Friday through to the Sunday aswell
Mr Egan: yeh that would be wicked
Mr Egan: if u can snag a show ill pay u 800 a show
Appellant: Prime dude wasn't chasing that much but yeah awesome!
Mr Egan: thats the going rate for a non flipper depending on size of the event 600-800
Appellant: yeah man that's awesome keen to ride with u guys
Mr Egan: -thumbs up emoji-
- It is clear that Mr Egan was attempting to source shows for Wide Bay FMX to perform in his responses to the Appellant stating, 'yeh sweet if u(sic) hear of anyone chasing shows up your way let me know wat(sic) tricks do u(sic) have down' and 'if u(sic) can snag a show ill(sic) pay u(sic) 800 a show'. Mr Egan gave evidence that this message referred to a finder's fee if the Appellant was able to find an event for him to perform.
- On 27 March 2019, the Appellant sent a message to Mr Egan enquiring as to the setup of Mr Egan's truck and jumps before asking whether his company was performing at the Gladstone Show. The exchange went as follows:
Appellant: Hey Timmy do you set your truck up at 75
Appellant:With a aus comp?
Mr Egan:yeh man
Appellant: Oh yeah sweet thought it was are u guys doing the gladdy show?
Mr Egan:yeh man not sure wat distance it will be there tho I have a few young fellas riding it
Appellant: Ok do u mind if I tag along with you guys?
Mr Egan:deffently come down for a jump
Appellant: Sweet cheers dude I'm keen as
Appellant:How many riders you got so far man?
Mr Egan:3 I think at this stage.
- The messages exchanged on 27 March 2019 do not indicate any agreement that the Appellant would perform in the Gladstone Show. The Appellant offered to 'tag along' and Mr Egan agreed to this arrangement. There was no negotiation about the Appellant being a paid performer at the show.
- At a later date the following text message exchanged occurred between the parties:
Appellant: Hey Timmy do u know how much us riders will be on at all?
Mr Egan: Cause the boys are only learning. Tricks n riding 60 foot its fuk all only $150 for 2 15 min shows.
Appellant: Ok sweet that's okay.
Mr Egan: A full 75 rider non flipper with enough tricks to. Trick every jump gets $800.00 per nite
Mr Egan: flipper is 1500.
Appellant: Oh yeah sweet.
- Mr Egan gave evidence that he did not believe the Appellant had the capacity as a stunt rider to do a 15 minute show doing every trick and so essentially could not be a performer in a show.
- Mr Egan gave evidence that 'the boys' referred to in the message at  were the riders Mr Booth, Mr Dahtler and Mr Thorogood and that he had misread the Appellant's text message with his response relating to those riders only. There is also evidence indicating that by April 2019, Mr Egan had prepared and sent an invoice to the Gladstone Show Society regarding the services to be provided. The invoice confirmed that Mr Egan was quoting to supply four riders and Mr Egan gave evidence that the four riders were himself, Mr Booth, Mr Dahtler and Mr Thorogood. This evidence supports Mr Egan's assertions that he had never intended to engage the Appellant to perform at the Gladstone Show as he had already engaged the other three riders.
- In Mr Egan's evidence, he confirmed that he misunderstood the Appellant's text message, stating:
Counsel:You provided the response that's in the bubble below that. Can I just ask you to explain your response?
Mr Egan:Yeah, my response – so I fully misunderstood his text message. It would literally just got caught my eve and I'd reply. And I’d replied with: Because the boys are only learning tricks and riding 60 foot, it’s fuck all only $150 for the two 15-minute shows.
So I'm literally not taking him as a rider, saying, "us riders", I’m [indistinct] talking about the boys that are organised already to ride.
Counsel:All right. Okay. So was the context you saved for your response?
Counsel:All right. You then go on to note in the next bubble by you on that page: A 475(sic) rider non-flipper with enough tricks to trick every jump gets $800 per night, and a flipper is 1500.
Counsel: What the(sic) purpose of you providing that information?
Mr Egan:That was just me generally talking to him, trying to explain the freestyle motocross scene to Reece.
- Mr Egan's reference to 'the boys' makes it more likely that he was referring to Mr Booth, Mr Thorogood and Mr Dahtler and not the Appellant. I accept Mr Egan's evidence that he misread the Appellant's message and his response referred to the amount that three riders were being paid. The phrase 'cause the boys are only learning…' indicates that Mr Egan was referring to the other riders and not the Appellant. This is consistent with the invoice sent confirming that four riders (including Mr Egan) would be provided. There is also no evidence prior to this message exchange that negotiations had occurred between the parties that the Appellant would be paid to perform at the Gladstone Show.
- Further Facebook Messenger messages were exchanged between the parties on 11 April 2019, 26 April 2019, 7 May 2019, 30 May 2019 and 31 May 2019, however, do not mention the Gladstone Show. The only evidence to support the conclusion that a contract existed between the parties is the text messages exchanged on an unknown date prior to 3 June 2019 as outlined in  above.
- On 3 June 2019 the following text messages were exchanged between the parties:
Appellant: Hey man is $150 for the Caboolture show aswell?
Mr Egan: Yeh.
- The Appellant submits that this communication made it clear that the Appellant understood that he was being paid for the Gladstone Show 'as well' as the Caboolture show. The Appellant submits that Mr Egan did nothing to disavow that understanding because he shared that understanding. I am not persuaded that the above message exchange confirms that an agreement had been made that Mr Egan pay the Appellant $150.00 for the Gladstone Show. The phrase 'as well?' is insufficiently clear to allow an inference to be made that it was said in reference to the Gladstone Show. In the absence of evidence of any other relevant discussions between the parties, this exchange is simply not clear enough to form the basis of an agreement to perform at the Gladstone Show.
- The only communications capable of supporting the formation of a contract are the text messages and Facebook Messenger messages between the Appellant and Mr Egan. The Appellant was given the opportunity in cross-examination to give evidence as to whether any other discussions were had that could support his contention that an agreement had been made, however he could not recall any specific conversation.
- The Appellant was cross-examined about the lack of evidence of any discussions prior to the above message exchange on 27 March 2019 indicating that the issue of the Appellant being paid to perform at the Gladstone Show had been raised. The Appellant gave evidence that he felt like there was some discussion whereby Mr Egan had agreed to pay him and that he interpreted or assumed that Mr Egan's response to his text meant that he was being paid $150.00 to perform. The Appellant agreed in evidence that prior to that message there had been no discussion between he and Mr Egan about him being paid to perform at the Gladstone Show.
- Both the Appellant and Mr Egan confirmed in evidence that all of their previous communication had been by some form of electronic messaging and they had never met in person prior to 31 May 2019, when the Appellant attended Mr Egan's property along with Mr Booth and Mr Dahtler to practice stunts. At the time the parties met in person, the evidence was that the parties did not discuss the Gladstone Show or the Appellant being paid to perform at the event.
- In G Scammell and Nephew Ltd v HC and JG Ouston, it was stated:
In order to constitute a valid contract the parties must so express themselves that their meaning can be determined with a reasonable degree of certainty. It is plain that unless this can be done it would be impossible to hold that the contracting parties had the same intentions; in other words the consensus ad idem would be a matter of mere conjecture.
- It seems to me that the Appellant and Mr Egan have not expressed themselves such that their meaning can be determined with a reasonable degree of certainty. It will be an exercise in conjecture to now determine the terms of any agreement given this lack of clarity. Consequently, I am not satisfied that there is sufficient evidence to indicate that there was an intention by both parties to create legal relations. As noted in Koman v The Guitar Gym Pty Ltd:
To establish elements of a contractual relationship required a finding as to whether the parties evinced an intention to create legal relations. In contract law, this intention must be mutual, a consensus ad idem or 'meeting of the minds' in which both parties consider themselves contractually bound.
- The Appellant submits that Mr Egan's subjective intention regarding whether or not he intended to offer to pay the Appellant $150.00 to jump at the Gladstone Show is irrelevant to the exercise of determining whether or not a contract was formed. The Appellant contends that it is the objective conduct of the parties which is determinate. An objective assessment of the conduct as set out in the written messages exchanged between the Appellant and Mr Egan do not, in my view, indicate that an agreement had been made that Mr Egan would pay the Appellant $150.00 to jump at the Gladstone Show.
- Mr Egan paid $200.00 to the Appellant through his Go Fund Me Account, which had been established by the Appellant's friend to assist the Appellant following his injury. The Appellant submits that this sum was in fact payment under the contract and that because it was significantly greater than any other donations, an inference ought to be drawn that Mr Egan paid an extra $50.00 because the Appellant was seriously injured and he did not have the Appellant's bank account details.
- I do not accept that an inference can be drawn that the Go Fund Me payment was in fact payment under a contract between the parties. It is particularly unlikely given that the amount of $200.00 was not the amount alleged to have been agreed upon. The submissions that Mr Egan paid $50.00 in addition to the contracted amount due to the nature of the injuries and that it was paid into via Go Fund Me because he did not have the Appellant's bank account details is entirely speculative. It would also be highly unusual to pay a contractor for work performed via a donation web page. I accept Mr Egan's evidence that this payment was simply a donation to assist the Appellant in his recovery.
- As referred to in Wilms, McHugh JA considered in Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd circumstances where the parties had differing versions of their contractual relationship, stating:
It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of "offer", "acceptance", "consideration" and "intention to create a legal relationship" which are the benchmarks of the contract of classical theory.
- The circumstances in this matter are similarly difficult to fit into the common analysis of a contractual relationship. However, even allowing for an interpretation of contract principles where the language used may be informal rather than commercial, there is insufficient evidence that there was an offer for the Appellant to be paid to perform at the Gladstone Show, or that any agreement to such an offer had been communicated. It has not been made out that consideration flowed between the parties. The Appellant did not perform at the Gladstone Show and the Respondent did not make a payment of $150.00 for this service. There is no evidence that there was a 'meeting of the minds' or mutual intention that the parties considered themselves contractually bound and hence, in my view, no contract was validly formed between the parties.
- The Appellant has not discharged its onus to prove, on the balance of probabilities, that an agreement was reached between himself and Mr Egan that he be paid to perform at the Gladstone Show. It is not sufficient to show that it is possible that a contract had been formed, rather it has to be more probable than not that a contract was formed. I am not persuaded that there is sufficient evidence to establish that a contract was formed between the Appellant and Mr Egan.
- On the basis that the Appellant has not contracted with Mr Egan for the performance of work or provision of a service, the Appellant does not satisfy the definition of the term 'contractor' as outlined in sch 6 of the WCR Act and consequently is not a 'worker' for the purposes of sch 2 pt 1 s 3 of the WCR Act.
- Following my determination that no contract existed between the Appellant and Mr Egan for the performance of work, it is not necessary to consider the competing submissions with respect to the interpretation of the second aspect of sch 2 pt 1 s 3 of the WCR Act, that is whether the Appellant is excluded by virtue of performing work that is not incident to a trade or busines regularly carried on by the Appellant. To satisfy this secondary requirement a valid contract must be in place, which is not the case in this matter.
- I make the following orders:
- The appeal is dismissed.
- The decision of the Workers' Compensation Regulator is confirmed.
- Failing agreement on costs, to be the subject of a further application to the Commission.
- Liberty to apply.
 Exhibit 1.
  QIRC 30.
 Bist v London and South Western Railway Co  AC 209.
 Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328; Bird v Commonwealth (1988) 165 CLR 1.
 Exhibit 5.
 (1959) 101 CLR 298.
  QIRC 19.
 Ibid -.
 Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd  NSWSC 1081.
  QIRC 021.
 N. Seddon, R. Bigwood and M. Ellinghuase, Cheshire and Fifoot Law of Contract (LexisNexis Butterworths, 10th ed, 2012) 10-12.
 (2002) 209 CLR 95.
 Ibid .
 Exhibit 1.
 Ibid; wording of the messages has been directly extracted from the exhibit.
 Exhibit 1, page 2.
 Exhibit 5; wording of the messages has been directly extracted from the exhibit.
 Exhibit 2; wording of the messages has been directly extracted from the exhibit.
 Exhibit 6.
 T 1-62, ll 1-22.
 Exhibit 2; wording of the messages has been directly extracted from the exhibit.
  AC 251.
 Ibid 268.
  QCATA 195.
 Ibid .
 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95.
 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.
 (1988) 5 BPR 11.
 Ibid 110.
- Published Case Name:
Smith v Workers' Compensation Regulator
- Shortened Case Name:
Smith v Workers' Compensation Regulator
 QIRC 3
10 Jan 2022