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Foord v Workers' Compensation Regulator[2025] QIRC 27

Foord v Workers' Compensation Regulator[2025] QIRC 27

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Foord v Workers' Compensation Regulator [2025] QIRC 027

PARTIES:

Foord, Tracey Ann

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2024/45

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

30 January 2025

HEARING DATE:

28 October 2024

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. 1.
    The appeal is allowed.
  1. 2.
    The Respondent's decision dated 13 February 2024 is set aside and substituted with a new decision that Mr Fludder was a 'worker' within the meaning of section 11 of Workers' Compensation and Rehabilitation Act 2003 (Qld).
  1. 3.
    The Appellant's application for compensation is remitted to WorkCover Queensland to be determined according to law.
  1. 4.
    The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – ENTITLEMENT TO COMPENSATION – whether a contract was validly formed between the parties – whether the appellant was a worker for the purposes of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where the appellant was a 'contractor' – appeal allowed

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 108, sch 2, sch 6

CASES:

Air Great Lakes Pty Ltd v KS Easter Holdings Pty Ltd [1989] 2 NSWLR 309

Baigorri v Workers Compensation Regulator [2024] ICQ 2

Browne v Dunn (1893) 6 R 67

Church v Workers' Compensation Regulator [2015] ICQ 031

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95

Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11

Koman v The Guitar Gym Pty Ltd [2012] QCATA 195

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Scammell and Nephew Ltd v HC and JG Ouston [1941] AC 251

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010

Smith v Workers' Compensation Regulator [2022] QIRC 003

State of Queensland (Queensland Health) v Q- COMP and Beverley Coyne (2003) 172 QGIG 1447

SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936

The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106

Wilms v Workers' Compensation Regulator [2015] QIRC 021

Workers' Compensation Regulator v Glass (2020) 4 QR 693

APPEARANCES:

Mr G. J. Smart of Wallace & Wallace Lawyers for the Appellant.

Mr B. I. McMillan of counsel, directly instructed by the Respondent.

Reasons for Decision

  1. [1]
    Ms Tracey Ann Foord ('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 under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'). 
  1. [2]
    On 16 May 2023, the Appellant's fiancé,[1] Mr Barry Charles Fludder, suffered fatal injuries on the Cape Hillsborough property owned by Mr and Mrs Shea.
  1. [3]
    The primary question to be determined in this appeal is whether Mr Fludder met the extended definition of 'worker', pursuant to s 11(2) and Schedule 2, Part 1 of the WCR Act.
  1. [4]
    The onus is on the Appellant to satisfy the Commission of that matter, on the balance of probabilities.

Background

  1. [5]
    On 10 May 2023, Mrs Shea posted the following message on a Facebook page for a group called 'Working on the Road in Australia',[2] as follows:

We live on forty three acres just down from Cape Hillsborough National Park and thirty-five minutes North of Mackay.  Would you like to base yourselves with us while you explore the Mackay Region.  We are eight kilometres from Cape Hillsborough itself and only five minutes to other surrounding beaches.  The area is also known for its wildlife and great walking tracks.

We can provide electricity, water and a place to park up.  In return we are looking for…ten hours help a week.  We are looking for someone to help out with whipper snipping, some weeding and helping to organise our shed.  No set schedule and your pets would be welcome.  We have a Husky, two cats and four chickens.

If this sounds like something you would like please feel free to contact me.

You will need your own van.

Cheers

Michele and Dwayne

  1. [6]
    That same day, Ms Foord replied to Mrs Shea's Facebook post.  The message exchange between the two is in evidence.  It reads:

Ms Foord:

Hi there we are heading that way from this Friday.  We would love to come and help out for a cpl weeks.  We are starting work in Mackay 4th june.  We have our own van, no shower though would there be access to one at all?  Thanks Tracey and Barry

Mrs Shea:

Hi Tracey,

More than happy to have you but I don't have access to a shower for you.  If you are happy to set up an outdoor shower that would be fine

Cheers

Michele

Ms Foord:

Hi Michele, that would be great.  We are leaving here tomorrow as they have closed the campground.  We are 10 mins from Gracemere.  Can we have your address so we can look it up on maps.  We have an outdoor shower tent that we could set up so all good.

Tracey

Mrs Shea:

We are at [address provided here] Tracey.  It will come up as Ball Bay but we are closer to Cape Hillsborough.

Cheers[3]

  1. [7]
    Mr Fludder and Ms Foord arrived at the Shea's property on Friday 12 May 2023, set up their caravan and performed work the next morning.
  1. [8]
    Four days later, Mr Fludder was electrocuted whilst fixing a leaking water pipe on the property and died.[4]

Grounds for appeal

  1. [9]
    The Appellant's contention is that Mr Fludder was a "worker" within the meaning of s 11(2) the WCR Act.[5] 
  1. [10]
    The Appellant argued that Mr Fludder "was not excluded from the definition of 'worker' for the purposes of s 11(3) of the Act"[6] because he "met particular circumstances set out in s. 3 of Schedule 2, Part 1 of the Act."[7]
  1. [11]
    Specifically, the 'grounds of appeal' stated in the Appeal Notice filed were as follows:
  1. 1.
    The Regulator fell into error by determining that section 3 of Schedule 2 Part 1 of the Act required consideration of whether or not Mr Fludder had a "contract of service" or a "contract for service."
  1. 2.
    On a correct interpretation of section 3 of Schedule 2 Part 1, particularly when read with section 4 of Schedule 2 Part 2, it does not distinguish between a contract of service and a contract for service.  Rather, by necessary construction of the interaction between section 3 Part 1 and section 4 of Part 2, it is clear that section 3 relates to any contract including but not limited to a contract of service.
  1. 3.
    In the event that section 3 of Schedule 2 Part 1 did require a consideration of whether or not Mr Fludder was engaged under a contract of service or a contract for service, the Regulator has fallen into error by determining contrary to the facts, that Mr Fludder was engaged under a contract for service rather than a contract of service.
  1. 4.
    In the premises, the Regulator wrongly concluded Mr Fludder was not a "worker" within the meaning of section 11 of the Act.[8]

Legislative provisions

  1. [12]
    Section 108 of the WCR Act provides that compensation is payable for an injury sustained by a 'worker'.
  1. [13]
    Section 11 of the WCR Act defines who is a worker (emphasis added):
  1. 11
    Who is a worker
  1. (1)
    A worker is –
  1. (a)
    a person who—
  1. (i)
    works under a contract; and
  1. (ii)
    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, chapter 2, part 2-5; or
  1. …
  1. (2)
    Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
  1. (3)
    However, schedule 2, part 2 sets out who is not a worker in particular circumstances.
  1. (4)
    Only an individual can be a worker for this Act.
  1. [14]
    Schedule 2 of the WCR Act provides:
  1. Schedule 2 Who is a worker in particular circumstances
  1. Part 1 Persons who are workers
  1. 1
    A person who works a farm as a sharefarmer is a worker if—
  1. (a)
    the sharefarmer does not provide and use in the sharefarming operations farm machinery driven or drawn by mechanical power; and
  1. (b)
    the sharefarmer is entitled to not more than 1/3 of the proceeds of the sharefarming operations under the sharefarming agreement with the owner of the farm.
  1. 2
    A salesperson, canvasser, collector or other person (salesperson) paid entirely or partly by commission is a worker, if the commission is not received for or in connection with work incident to a trade or business regularly carried on by the salesperson, individually or by way of a partnership.
  1. 3
    A contractor, other than a contractor mentioned in part 2, section 4 of this schedule, is a worker if—
  1. (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
  1. (b)
    the contractor—
  1. (i)
    does not sublet the contract; or
  1. (ii)
    does not employ a worker; or
  1. (iii)
    if the contractor employs a worker, performs part of the work personally.
  1. 4
    A person who is party to a contract of service with another person who lends or lets on hire the person's services to someone else is a worker.
  1. 5
    A person who is party to a contract of service with a labour hire agency or a group training organisation that arranges for the person to do work for someone else under an arrangement made between the agency or organisation and the other person is a worker.
  1. 6
    A person who is party to a contract of service with a holding company whose services are let on hire by the holding company to another person is a worker.
  1. 7
    A person (an intern), other than a person mentioned
  1. in chapter 1, part 4, division 3, subdivision 1, 2, 3 or 4, is a worker if the person—
  1. (a)
    is performing work for a business or undertaking without payment of wages to gain practical experience in the type of work performed by the business or undertaking, or to seek to obtain a qualification; and
  1. (b)
    would be a worker if the work performed by the person were for the payment of wages.
  1. Part 2 Persons who are not workers
  1. 1
    A person is not a worker if the person performs work under a contract of service with—
  1. (a)
    a corporation of which the person is a director; or
  1. (b)
    a trust of which the person is a trustee; or
  1. (c)
    a partnership of which the person is a member; or
  1. (d)
    the Commonwealth or a Commonwealth authority.
  1. 2
    A person who performs work under a contract of service as a professional sportsperson is not a worker while the person is—
  1. (a)
    participating in a sporting or athletic activity as a contestant; or
  1. (b)
    training or preparing for participation in a sporting or athletic activity as a contestant; or
  1. (c)
    performing promotional activities offered to the person because of the person's standing as a sportsperson; or
  1. (d)
    engaging on any daily or other periodic journey in connection with the participation, training, preparation or performance.
  1. 3
    A member of the crew of a fishing ship is not a worker if—
  1. (a)
    the member's entitlement to remuneration is contingent upon the working of the ship producing gross earnings or profits; and
  1. (b)
    the remuneration is wholly or mainly a share of the gross earnings or profits.
  1. 4
    A person who, in performing work under a contract, other than a contract of service, supplies and uses a motor vehicle for driving tuition is not a worker.
  1. 5
    A person participating in an approved program or work for unemployment payment under the Social Security Act 1991 (Cwlth), section 601 or 606 is not a worker.
  1. 6
    A person is not a worker if—
  1. (a)
    the person works for another person under a contract; and
  1. (b)
    a personal services business determination is in effect for the person performing the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60.
  1. [15]
    The dictionary in Schedule 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.

Claim details

  1. [16]
    Ms Foord contacted WorkCover on 12 July 2023 to lodge an application for compensation on behalf of her deceased fiancé,[9] Mr Fludder, who had "sustained fatal injuries on 16 May 2023 when he contacted live electrical wiring while fixing a leaking pipe" on the Cape Hillsborough property owned by Mr and Mrs Shea.[10]
  1. [17]
    WorkCover Queensland rejected the application on 25 August 2023.[11]
  1. [18]
    Through her legal representative, Ms Foord applied to the Workers' Compensation Regulator ('the Regulator') to review that decision on 31 October 2023.[12]  The grounds for review submitted were that WorkCover's decision did not appear to have considered the extended definition of worker under Schedule 2, Part 1, s 3.  Ms Foord's contention was that "Mr Fludder was clearly a contractor and is a worker under the extended definition" contained in Schedule 2, Part 1, s 3 of the WCR Act.[13]
  1. [19]
    The Regulator provided reasons for the decision dated 13 February 2024, confirming the decision of WorkCover that Mr Fludder was not a 'worker' under the WCR Act.[14]  The Regulator's review concluded that:

…I note the assertion is that Mr Fludder was a contractor because he had some sort of contract in existence with D & M Shea and as he was working as a contractor for D & M Shea at the time of his death, schedule 2, part 1, section 3 applies to the application.  I disagree with this assertion.

Schedule 2, part 1, section 3 of the Act only applies to a person who regularly carries out a trade or business as a contractor either individually or by way of a partnership, and the person has then made a contract with someone else to perform work unrelated to the trade or business they regularly carry on as a contractor.

Ms Foord provided no information or evidence to WorkCover or via her legal representative at review, that would indicate Mr Fludder ordinarily worked as a contractor either individually or by way of a partnership and that the work he performed on D & M Shea's property was unrelated to the work he regularly carried on under his normal contractor trade or business.  Rather, during a telephone conversation with WorkCover on 14 July 2023, Ms Foord advised that she and Mr Fludder were travelling around in their caravan doing house sits.  She also advised they only planned to stay at D & M Shea's property for two weeks as Mr Fludder had found work as a cane haul operator with a farmer outside of Mackay.

As no information was given to WorkCover or at review by Ms Foord or her legal representative demonstrating Mr Fludder operated a trade or business either as an individual contractor or as a contractor by way of a partnership and the work Mr Fludder performed at D & M Shea's property was unrelated to his contractor trade or business, I cannot be satisfied schedule 2, part 1, section 3 is satisfied in this instance.

In the absence of such information or evidence, I determine Mr Fludder is not a 'worker in particular circumstances' pursuant to schedule 2, part 1, section 3 of the Act.[15]

  1. [20]
    Ms Foord subsequently filed this appeal against the Regulator's decision on 4 March 2024.

What legal tests must be satisfied for this appeal to succeed?

  1. [21]
    An appeal such as this is a hearing de novo.[16]  That is clearly in my mind, despite noting elements of the Respondent's review decision that is subject of this appeal.
  1. [22]
    Ms Foord bears the onus to prove, on the balance of probabilities, that Mr Fludder was a "worker" under the extended definition pursuant to Schedule 2, Part 1, s 3 of the WCR Act. 
  1. [23]
    As explained by Deputy President Merrell in Ribeiro v Workers' Compensation Regulator:[17]

The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.[18]

Question to be determined

  1. [24]
    The question to be decided is:
  • Was Mr Fludder a "worker" under the extended definition pursuant to Schedule 2, Part 1, s 3 of the WCR Act?
  1. [25]
    That is informed by:
  1. whether Mr Fludder is a contractor, other than a contractor mentioned in Part 2, s 4 of the schedule; and
  1. whether Mr Fludder made a contract with someone else for the performance of work that is not incident to a trade or business regularly carried on by Mr Fludder, individually or by way of a partnership; and
  1. whether Mr Fludder sublet the work or employed a worker.[19]
  1. [26]
    It is not disputed that Mr Fludder was not a worker under s 11(1) of the WCR Act.  This matter is confined to whether Mr Fludder was a worker pursuant to s 11(2), which requires a consideration of Schedule 2, Part 1, s 3 of the WCR Act.

Evidence and submissions

  1. [27]
    Three exhibits were in evidence at the Hearing:

Exhibit 1. Facebook post by Ms Michele Shea on 10 May 2023 'Working on the road in Australia'

Exhibit 2. Facebook messages between Ms Shea and Ms Foord in the period 10 – 11 May 2023

Exhibit 3. Mud map drawn by Ms Foord of the area where the van was parked on the Shea property

  1. [28]
    The evidence of the witnesses and exhibits tendered at the Hearing, together with the Statements of Facts and Contentions, the Appeal Notice and other materials filed in this matter were considered in this Decision.  I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.

Witnesses

  1. [29]
    The witnesses for the Appellant's case were:
  • Ms Tracey Ann Foord, the Appellant herself.
  1. [30]
    The Respondent's witnesses were:
  • Mr Dwayne Shea; and
  • Mrs Michele Shea.
  1. [31]
    Though Mr and Mrs Shea were called to give evidence and sworn in as witnesses at the Hearing, they declined to answer questions which may expose them to risk of prosecution,[20] claiming privilege against self-incrimination.[21]  Upon inquiry, I was told that there was an ongoing investigation by WHS into the matter.[22]

Summary

  1. [32]
    The WCR Act is beneficial legislation.  The effect of that was explained by his Honour Martin J in Simon Blackwood (Workers' Compensation Regulator) v Mahaffey:[23]
  1. [46]
    …The task remains one of ordinary statutory construction – one where a beneficial interpretation of the whole of the section or chapter will be applied should more than one interpretation be available. It is not the case that a reader advances through the Act, identifying one section (or sub-section) as beneficial while another is not. The section and its various parts must be read in context. The correct approach is to construe s 32 in the ordinary way and then to call in aid the principles concerning beneficial legislation if that becomes necessary.
  1. [33]
    The approach I have taken below is to explain my finding that Mr Fludder was a 'worker' in the particular circumstances set out in Schedule 2, Part 1, s 3 of the WCR Act. 
  1. [34]
    In doing so, I have had regard to his Honour Davis J's recent decision in Baigorri v Workers Compensation Regulator,[24] that sets out the:
  1. [24]
    …three elements which must be fulfilled before a person qualifies as a "worker" within the extended definition in Schedule 2 Part 1 s 3, namely:
  1. (i)
    The person must be a contractor other than a contractor mentioned in Part 2 s 4 of the Schedule (the first element);
  1. (ii)
    the contractor makes a contract with someone else for the performance of work (the second element); and
  1. (iii)
    the work performed by the contractor is not incident to a trade or business regularly carried on by the contractor, individually or by way of a partnership (the third element).
  1. [25]
    They are undoubtedly the three elements of the relevant extension of the definition of "worker" as defined by s 3 of Part 1 of Schedule 2 of the WCR Act.
  1. [35]
    The first matter is whether Mr Fludder was a "contractor", pursuant to the definition provided in Schedule 6 of the WCR Act.  I have found that Mr Fludder was a "contractor." 
  1. [36]
    In arriving at the conclusion that he was a "contractor" so defined, I have considered the principles of a contract as summarised by Power IC in her recent decision in Smith v Workers' Compensation Regulator.[25]  I have found that Mr Fludder met the definition of "contractor" because the nature of the agreement reached with the Sheas was a contract for the performance of work.  Specifically, that work included "helping out with whipper snipping, some weeding and helping to organise" the shed and generally "help clean up the property" ready for sale.
  1. [37]
    There was no need for me to then consider the meaning of "incident to a trade or business regularly carried on by the contractor, individually or by way of partnership," pursuant to s 3, in any great detail because the Regulator no longer pressed the point that was originally contained in the Respondent's statement of facts and contentions,[26] following Davis J's decision in Baigorri v Worker's Compensation Regulator.[27]  As the Regulator noted at the Hearing, "…His Honour's judgement…makes abundantly clear that the law in Queensland is now that if a person contracts with another for the performance of work, they are a contractor, by definition, and are also a worker…And so the question, relevantly for this hearing, is whether or not Mr Fludder was a contractor in that he entered into a contract for the performance of work with either or both of Mr and Mrs Shea."[28] 
  1. [38]
    Having cleared the hurdle of the criteria at Schedule 2, Part 1, s 3(a), I then moved to consider whether Mr Fludder "sublet the contract", pursuant to s 3(b)(i).  I have found that Mr Fludder did not sublet the contract, there is no material before me that indicated otherwise.  (The Regulator did not contend that was the case at the Hearing either).
  1. [39]
    With respect to the question of whether Mr Fludder "employed a worker" (pursuant to s 3(b)(ii)(iii)), there is no evidence to suggest that Ms Foord was 'employed by' Mr Fludder - and even if she was employed by him it would not matter because Mr Fludder fulfilled the condition of "performing part of the work personally".  (The Regulator did not contend that was the case at the Hearing either).
  1. [40]
    Mr Fludder may yet have been excluded from the meeting the definition of 'worker' under Schedule 2, Part 1, s 3 if he was found to have been "a contractor mentioned in part 2, section 4 of this schedule."  That reads: "A person who, in performing work under a contract, other than a contract of service, supplies and uses a motor vehicle for driving tuition is not a worker."  That does not apply to Mr Fludder because the nature of the work he contracted to perform did not include "driving tuition."  (The Regulator did not contend that was the case at the Hearing either).
  1. [41]
    I also note that s 11(4) of the WCR Act states that "Only an individual can be a worker for this Act."  The individual in this case was Mr Fludder.  The Respondent had earlier submitted that Ms Foord and Mr Fludder had "registered a family partnership under the name of B. C. Fludder and T. A. Foord and were assigned the…(ABN) of 97 189 212 178.  At no time from July 2020 to 10 May 2023 were the Appellant and / or Mr Fludder conducting a trade or business."[29]  Relevantly, at the commencement of the Hearing,[30] the Respondent stated it no longer pressed its contention that "if an agreement was reached between the Appellant and Mr Fludder and Mr and Mrs Shea…the agreement was between Mr and Mrs Shea and the partnership of the Appellant and Mr Fludder…"[31]  (That meant Mr Fludder would not be excluded on the grounds of s 11(4) of the WCR Act either).
  1. [42]
    Finally I have found that Mr Fludder was performing work at the time he suffered the fatal injuries. 
  1. [43]
    In my view, Mr Fludder's efforts to fix the leaking water pipe are consistent with the work he contracted to perform for Mr and Mrs Shea.  Although it is clearly not "whipper snipping", "weeding" or "helping to organise [a] shed",[32] fixing a leaking water pipe does fall under the description of "general clean up of the property"[33] getting ready for sale. 
  1. [44]
    For those reasons, I have concluded that Mr Fludder (a 'contractor') was also a 'worker' under the terms of Schedule 2, Part 1, s 3 because he met the criterion contained at s 3(a) and (b) – and was not excluded from being a "worker in particular circumstances" under Part 2, s 4.
  1. [45]
    My reasons follow.

Consideration

Principles of a contract

  1. [46]
    Industrial Commissioner Power summarised contract principles in her recent decision in Smith v Workers' Compensation Regulator.[34]  Her consideration of the relevant elements is apposite here too: [35]
  1. [45]
    To determine whether a contract existed between Mr Egan and the Appellant, the principles of contract law must be considered.
  1. [46]
    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:
  1. (a)
    offer by one party;
  1. (b)
    communicated acceptance by the other party; and
  1. (c)
    consideration.
  1. [47]
    In Wilms, Deputy President Kaufman summarised the requirements of a contract as outlined in Cheshire & Fifoot's Law of Contract (10th Australian Edition):
  1. 1.16 Making a contract. The major elements of formation of a contract are usually identified as following:
  • Agreement (offer and acceptance);
  • Consideration;
  • Intention to create legal relations; and
  • Certainty of terms.
  1. 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)
  1. or promise-for-act (unilateral contract).
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. Certainty and completeness is required, but only in relation to essential terms. The court has wide powers to imply terms and to fix meanings.
  1. …
  1. [48]
    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:
  1. "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".
  1. …
  1. [64]
    In G Scammell and Nephew Ltd v HC and JG Ouston, it was stated:
  1. 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.
  1. [65]
    …As noted in Koman v The Guitar Gym Pty Ltd:
  1. 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.
  1. …
  1. [69]
    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:
  1. 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.

Was there an 'agreement' to perform work in return for water, electricity and a place to park up the caravan?

  1. [47]
    Mrs Shea's Facebook post and subsequent message exchange with Ms Foord are reproduced at paragraphs [5]-[6] of this Decision. 
  1. [48]
    This case turns on whether or not Mr Fludder entered into a contract with Mr and / or Mrs Shea.
  1. Message exchange sign off
  1. [49]
    The Respondent submitted that because the message exchange was between Mrs Shea and Ms Foord, "…there is no evidence at all that Mr Fludder ever intended to enter into that agreement."  The Respondent's position is it is not sufficient that Ms Foord signed off her message to Mrs Shea with "Thanks, Tracey and Barry."[36] 
  1. [50]
    However, the Appellant's representative highlighted that does not mean the message was sent by Ms Foord without Mr Fludder's knowledge and agreement.  As the Respondent's contention was not put to Ms Foord in cross-examination, the Appellant's representative stated it cannot be relied upon under the rule in Browne v Dunn.[37] 
  1. [51]
    I have accepted the Appellant's submission on that point.  Though in any case my view is that it is more likely than not that the message from Ms Foord was sent with Mr Fludder's knowledge and consent because as a result of those communications, both he and Ms Foord arrived at the Shea property on Friday 12 May 2023. 
  1. Performing work or volunteering
  1. [52]
    The Respondent's position was that Mr and Mrs Shea did not offer employment to Mr Fludder and Ms Foord "but an expectation that they would help, that they would perhaps volunteer, might be another word that could've been used."[38]  The Respondent noted that the types of tasks Mr and Mrs Shea hoped for 'help' with were as listed in the Facebook post.
  1. [53]
    The Respondent said that if the Commission is "satisfied that the evidence demonstrates terms that are sufficiently clear to evidence some form of contract between Mr Fludder and Mr and / or Mrs Shea, the Regulator's contention is that that was a contract to occupy a space on their property, and not a contract for the performance of work."[39]  The Respondent concluded that "Any tasks performed by Ms Foord or Mr Fludder were in the nature of volunteering…in return…for that favour offered to them by Mr and Mrs Shea."[40]
  1. [54]
    The Appellant submitted that Mr Fludder was not a volunteer because congruent promises had been made and acted upon – to exchange land, water and power in return for labour.[41]
  1. [55]
    As I will explain below, I have found there was a contract to perform work between Mr Fludder and Mr and Mrs Shea.  That contract was comprised of written components (the Facebook post and subsequent message exchange between Ms Foord and Mrs Shea) and the oral discussions that occurred once Mr Fludder and Ms Foord reached the property, started to perform work under Mr and Mrs Shea's direction in fulfillment of their obligations, and further established the terms in conversations between the couples.
  1. [56]
    Ms Foord had told WorkCover the couple arrived at the Shea's property on Friday 12 May 2023 "and he spent the next morning doing yard work."[42] 
  1. [57]
    Ms Foord's evidence to the Commission was that she too performed work the following day (Saturday 13 May 2023) in the 'tea house' business conducted on the Shea's property.[43] 
  1. [58]
    Ms Foord's evidence was that she and Mr Fludder had dinner with Mr and Mrs Shea on Saturday evening, 13 May 2023, where the matter of work to be performed was further discussed.[44]  The Appellant contended it was agreed between the two couples that Ms Foord would help out Mrs Shea in the tea house, whilst Mr Fludder would perform work on the property under Mr Shea's direction.
  1. [59]
    In the Statement of Facts and Contentions filed on 13 May 2024, the Appellant submitted that (emphasis added):
  1. On or about 13 May 2023, the Deceased and the Appellant had verbal discussions with Mr and Mrs Shea ("the Agreement").  It was agreed:
  1. (a)
    on the part of the Appellant, she would assist Mrs Shea in the operation of the Old Station Tea House business which Mr and Mrs Shea then operated.
  1. (b)
    On the part of the Deceased, he would help Mr Shea with the gardens, the whipper snipping, removing old trees and general clean up as Mr and Mrs Shea were preparing the property for sale.[45]
  1. [60]
    In its Statement of Facts and Contentions filed on 18 June 2024, the Regulator "denies that a conversation in the terms alleged by the Appellant took place on or about 13 May 2023" and "denies that an agreement was reached between the Appellant and Mr Fludder and Mr and Mrs Shea on or about 13 May 2023".[46]
  1. [61]
    Ms Foord's evidence of her understanding of the arrangement with Mr and Mrs Shea was that "we were to complete 10 hours of work while we were there."  It was Ms Foord's understanding that Mr and Mrs Shea "were to direct us in what work that we – was required."  What Mr Fludder and Ms Foord got for that 10 hours work per week was permission "to park our van up and hook up to their…electricity and water."[47]
  1. [62]
    I find it most probable that conversation on Saturday evening 13 May 2023 took place as Ms Foord said it did.  That is because Mrs Shea's Facebook post makes clear that work is to be performed in return for a place to park up the caravan.  Further, Ms Foord's evidence at the Hearing was that she was put to work by Mrs Shea in the tea house business and, critical to this present appeal, was that Mr Fludder performed yard and maintenance work around the property under the direction of Mr Shea. 
  1. [63]
    Given that clear agreement to perform work in return for a place to park up the caravan contained in the documentary evidence of Mrs Shea's initial Facebook post, I find it most probable that work was undertaken as agreed, in the manner Ms Foord said that it occurred.  It does not follow that Mr Fludder and Ms Foord took it upon themselves to perform hours of work in the tea house kitchen and in the grounds of the property unless so obligated to do so.
  1. Was that 'Agreement' a 'Contract'?
  1. [64]
    Having found that there was an 'agreement' to perform work in exchange for "electricity, water and a place to park up" the caravan, I will now consider whether that constituted a contract.
  1. [65]
    It is not disputed that there was no written contract[48] and no money changed hands.[49]  Though that is not required for the existence of a contract.[50]  As noted in the Regulator's decision dated 13 February 2024, a contract can be written, oral or implied by conduct.[51]  The elements of a binding contract include offer, acceptance and consideration.[52]  Contract principles considered by Power IC in her recent decision in Smith v Workers' Compensation Regulator[53] have been extracted above.
  1. Appellant's position
  1. [66]
    The Appellant submitted that:
  • A contract was formed between Mr Fludder and Ms Foord with Mr and Mrs Shea.
  • The Facebook post contained "the language of bargains", specifically use of the phrase "in return" we are looking for 10 hours help a week.[54]  That quid pro quo is "the exchange of congruent promises, that gives rise to a prima facie conclusion that the parties intended to be bound by their promises."[55]
  • "There is an agreement…that starts with the Facebook advertisement, proceeds through into exhibit 2 where there's communication of offer and acceptance, and is finalised in oral discussions at the property between the Sheas and Ms Foord and Mr Fludder…the contract is one that is partly oral and partly in writing."  (Exhibits 1 and 2 constitute the written part of the contract).[56]
  • "There was an agreement where something was being offered in exchange for something else, and that is the very essence of consideration."[57]  "Something of value passed both ways in this particular case, and that it was an exchange of congruent promises."[58]  Mr and Mrs Shea were looking for labour because they needed work done in order to prepare their property for sale.  It was not a case that Mr and Mrs Shea were being "generous with their land because they support the grey nomad lifestyle.  It was an arrangement which was put in place which ultimately benefited the Sheas in a real and material way."  "The requirement for consideration has been made out."[59]
  1. Respondent's position
  1. [67]
    The Respondent submitted that:
  • There is insufficient evidence to find a contract of any kind existed.[60]
  • The situation was best characterised as an "exchange of favours" between Mr Fludder and Ms Foord with Mr and Mrs Shea "as part of the grey nomad movement."[61] 
  • There was no set schedule and pets were welcome, which was "an odd thing to have included in an advertisement that was seeking someone to come and do work in an employment-like relationship."[62] 
  1. [68]
    In its Statement of Facts and Contentions filed on 18 June 2024, the Regulator "denies that Mr and Mrs Shea had any intention to enter into legal relations with the Appellant and Mr Fludder."[63]  Though the Regulator goes on to state that "if an agreement was reached between the Appellant and Mr Fludder and Mr and Mrs Shea" it was "a short-term and informal license to occupy" until 4 June 2023, and "the agreement was not an employment agreement and was not either a contract of service or a contract for service."[64]
  1. Intention to be legally bound
  1. [69]
    The Respondent submitted that Ms Foord gave evidence to the effect that the parties had no intention to "be bound by that agreement" because if they did not like the situation they could leave, and if the Sheas had not wanted them to stay they could also ask them to move on.[65] In the Respondent's view, there was certainly no intention to ultimately subject that agreement to the adjudication of the courts.[66]  Further, it was the Respondent's position that if Ms Foord indicated she had no intention to be legally bound, than there is no evidence that Mr Fludder considered he was so bound – concluding the parties had no intention to be legally bound by the agreement.[67] 
  1. [70]
    The Respondent submitted there was also the issue of whether or not the right of immediate termination was a term of the contract.[68] 
  1. [71]
    With respect to intention to be legally bound, the Appellant's position is that "the parties conducted themselves in accordance with the terms of the agreement that was reached…the Sheas gave their property and their land and their water, and Mr Fludder and Ms Foord gave up their labour…there was an intention that this promise would be binding on them."[69]  Citing Mahoney JA in Air Great Lakes Pty Ltd v KS Easter Holdings Pty Ltd,[70] the Appellant submitted that "The law will hold a binding contract to have been made, even though neither had any actual subjective intention that there be a contract, in the sense that neither party gave any thought to the matter."[71]  "There was an objective intention to be legally bound by this".[72]
  1. [72]
    The Appellant submitted that Ms Foord's evidence was that Mr and Mrs Shea could have asked them to leave – or Ms Foord and Mr Fludder could have left – if either couple found they did not like the situation on the property.  The Appellant asserted "That's not evidence that no contract was entered.  That's a term of the agreement…that says, this agreement is terminable at will.  And that's not surprising where the contract involves a degree of cohabitation, because there may be conflicts between the parties.  But just because a contract can be terminated doesn't mean a contract doesn't exist."[73]  "One of the benefits of engaging contractors is the freedom to contract, which includes the freedom not to contract, and so it's not remarkable at all that a contract would include a right to terminate it…it doesn't make it a remarkable contract, or significantly differ from a range of agreements that might exist which says that this contract can be terminated."[74] 
  1. [73]
    With respect to the issue of 'intention to enter into legal relations', I note the Regulator's decision dated 13 February 2024 recognised that (citations omitted):

…The conduct of one party commencing to perform for another work of a type normally performed by employees can give rise to an inference of the intention to create legal relations, the offer of work and the acceptance of the work offered: cf Dietrich v Dare…[75]

  1. [74]
    In my view, the parties conducted themselves in accordance with the terms of their agreement.  Mr Fludder and Ms Foord performed work under the direction of Mr and Mrs Shea.  In return, Mr and Mrs Shea permitted Mr Fludder and Ms Foord to park up on their property and provided them with power and water, as promised. 
  1. Ten hours work per week
  1. [75]
    The Appellant submitted that "Ms Foord said that she assumed that both she and Mr Fludder had to do the 10 hours, but that is not sufficiently uncertain…to devoid the entire agreement of an arrangement…It's good practice…to err on the side of caution in discharging your contractual obligations rather than risk underdoing it.  And…the conduct of the parties suggests that…was the common understanding because Ms Foord was put to work in the kitchen…And so it – it's not unusual that the exact obligations under a contract aren't specified…so long as the agreement is sufficiently clear that the obligation can be determined."[76]
  1. [76]
    Further, the Appellant's position was that 10 hours work was to be performed, and the work to be done was discussed in broad terms at dinner. 
  1. [77]
    The Appellant concluded that "There was sufficient agreement as to how the tasks were going to be apportioned, that the obligations of the parties were clear."[77]
  1. [78]
    The Respondent submitted there was such "gross uncertainty of terms, terms so uncertain as to not be capable of forming a binding contract".  The Respondent asserted that Ms Foord's evidence was that "there were no set tasks that were expected of them at any stage communicated by Mr or Mrs Shea…there were no set times…there was substantial uncertainty, even in her evidence today, as to exactly what the nature of the purported agreement was in terms of whether it was required that they each did 10 hours of work, or that they did 10 hours of work together, and in what circumstances they did those 10 hours of work."   Further, "they didn't keep any records" of hours worked.[78] 
  1. [79]
    I accept that it is not conclusively known whether both Mr Fludder and Ms Foord were expected to perform "ten hours help a week" – or whether it was ten hours work between them.  That was evident in Ms Foord's evidence at the Hearing.[79] 
  1. [80]
    Ms Foord explained that "It really was not specified.  It was just 10 hours a week.  See we each got upon ourselves that we – I would do 10 hours and Barry would do 10 hours."  Ms Foord agreed with the proposition put to her that she and Mr Fludder would have done more than the minimum required.[80] 
  1. [81]
    I agree it is probable that 10 hours work per week was expected of both Mr Fludder and Ms Foord, as both of them received the benefit of somewhere to park up, water and power whilst on the Shea's property.  It is clear that all parties proceeded on that understanding, given both Mr Fludder and Ms Foord performed work under the respective direction of Mr and Mrs Shea from the morning after their arrival, and the work to be done was further discussed between the couples at dinner.  For those reasons, I do not consider that the term was sufficiently uncertain to disturb the existence of a contract in the particular circumstances of this case.
  1. Installation of new tap
  1. [82]
    The Respondent's position was that the installation of a new tap by Mr Shea did not mean that he intended to be bound, or had some obligation to Ms Foord and Mr Fludder.  Mr Fludder and Ms Foord arrived "expecting to have access to water for the purpose of staying on the property…that water was for their benefit…Mr Shea facilitated the installation of the tap to assist them.  Now, that's entirely inconsistent…with (Ms Foord's) other evidence that they were directed, or Mr Fludder was directed, to use Ms Foord's word, to fix that pipe as part of the work that they had contracted to do, because, indeed, the tap was only installed for their benefit, on her evidence."[81]
  1. [83]
    The Respondent concluded that "even if you do infer…that…the tap was installed in performance of a promise made by Mrs Shea on behalf of Mr and Mrs Shea, then we say that supports the secondary contention of the Regulator and that is that this was a contract for the right to occupy a van site, effectively with water and power, not for the performance of work."[82]
  1. [84]
    The Appellant submitted that a new tap was installed after Ms Foord and Mr Fludder's arrival at the Shea property.[83]
  1. [85]
    I accept Ms Foord's evidence at the Hearing that Mr Shea facilitated the installation of a new tap, proximate to the site where Mr Fludder and Ms Foord had been directed to park their caravan, after their arrival.  In my view, that was done in fulfillment of Mr and Mrs Shea's side of the agreement with Mr Fludder and Ms Foord, as expressed in the original Facebook post. 
  1. Nature of the Agreement
  1. [86]
    While the Regulator denied the Facebook post constituted an offer of employment,[84] in my view the Facebook post contained the elements of an 'offer' of "electricity, water and a place to park up", "in return" for "ten hours help a week".  The messages exchanged between Mrs Shea and Ms Foord demonstrates exploration of the terms so offered, which I believe was then subject of further conversation between the two couples upon Ms Foord and Mr Fludder's arrival at the Shea's property.  Ultimately, Mr Fludder and Ms Foord did perform work on the Shea's property, consistent with the terms agreed.
  1. [87]
    On the balance of probabilities, I consider they would only have done so to uphold their end of the bargain made with Mr and Mrs Shea. 
  1. [88]
    While Mr Shea did not answer the questions put to him at the Hearing (a right he was entitled to exercise, in such circumstances), the Regulator's decision dated 13 February 2024 recorded that:
  1. WorkCover spoke with Mr Shea on 26 July 2023.  Mr Shea confirmed Mr Fludder passed away from a tragic accident while Mr Fludder and Ms Foord were staying on his property.  Mr Shea also advised that neither Mr Fludder nor Ms Foord were paid, rather he had a domestic arrangement with them to help clean up the property.[85]
  1. …
  1. In an email to WorkCover on 15 August 2023, Mr Shea advised 'there was an understanding that they would give a few hours help in return for somewhere to park up until he started work'.[86]
  1. [89]
    In WorkCover's reasons for decision issued to Ms Foord on 25 August 2023, it was stated that:

…Whilst there was no written contact under this arrangement it would be fair to assume that Barry was working under a form of a contract, that being the verbal agreement that he would complete work in exchange for a place to park the caravan and access power and water.[87]

  1. [90]
    The Regulator's decision dated 13 February 2024 also held that:

As noted above, the authorities support an employment contract being formed in very informal ways and the existence of an employment contract can in fact be inferred one party commencing to perform for another work of a type normally performed by employees.  This type of labouring work that was being performed by Mr Fludder at D & M Shea's property is the type of work that is usually performed by employees or contractors.

Given the above, I am satisfied that the provision of electricity, water and a place on the property for Mr Fludder to park his caravan, in return for work being performed, is sufficient consideration to support the existence of an informal verbal contract between Mr Fludder and Mr and Mrs Shea.[88] 

  1. [91]
    Though this is clearly a hearing de novo, I agree with those earlier assessments of WorkCover and the Regulator as to the existence of a contract.
  1. [92]
    Returning to the legislative provisions set out earlier in this Decision, the definition of 'contractor' contained in the WCR Act is "…a person who has contracted with someone else for the performance of work..."  For the reasons above, I have found Mr Fludder was a person who had agreed to perform work on the Shea's property and commenced doing so the very morning after his arrival.  I am satisfied that the elements of a contract (offer, acceptance, consideration) were established, given the Facebook post and subsequent message exchange in evidence, together with the evidence of Ms Foord that work had commenced, and verbal discussions occurred after their arrival at the property.  As explained above, I have considered the matters of 'intention to be bound' and 'certainty of terms' of the agreement – and found that is no impediment to the existence of a contract in the particular circumstances of this case.
  1. [93]
    Therefore, I find that Mr Fludder was a person who had contracted with Mr and Mrs Shea for the performance of work (including "whipper snipping, some weeding and helping to organise our shed" and generally to "help clean up the property" ready for sale).
  1. Was Mr Fludder a 'worker'?
  1. [94]
    Having established then that Mr Fludder was "a person who has contracted with someone else for the performance of work", he is "contractor" pursuant to the definition at Schedule 6. 
  1. [95]
    I will now consider whether Mr Fludder was a "worker", pursuant to Schedule 2, Part 1, s 3.  That is:
  1. 3
    A contractor, other than a contractor mentioned in part 2, section 4 of this schedule, is a worker if—
  1. (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
  1. (b)
    the contractor—
  1. (i)
    does not sublet the contract; or
  1. (ii)
    does not employ a worker; or
  1. (iii)
    if the contractor employs a worker, performs part of the work personally.
  1. Schedule 2, part 2, s 4 – Driving tuition
  1. [96]
    With respect to the potential for exclusion under "part 2 section 4", Mr Fludder's eligibility is not impacted under Schedule 2, Part 2, s 4 of the WCR Act as he was not engaged in "driving tuition".  (I have earlier noted this element was not pressed by the Regulator at the Hearing).
  1. [97]
    Ordinarily, that would leave the remaining criterion under Schedule 2, Part 2, s 3 to consider:
  1. Whether it was "…not incident to a trade or business regularly carried on by the contractor, individually or by way of a partnership"; and
  1. Whether Mr Fludder "sublet the contract" or ""employed a worker" (or if so, then whether he "performed part of the work personally."
  1. Whether it was "incident to a trade or business regularly carried on"
  1. [98]
    His Honour Davis J explained in Baigorri v Workers' Compensation Regulator[89] that:
  1. [64]
    In construing s 3 of Part 1 of Schedule 2, the starting point is the making of a contract with another party "for the performance of work".  That contract is entered into at a particular point in time and is the act which potentially constitutes a contractor as a "worker".  At that point in time, the person does not become a "worker" if the work that he has contracted to perform is "incidental to a trade or business regularly carried on by the contractor."  In other words, if there is an existing business for "the performance of work" and the person enters into a contract with someone for "the performance of work" incidental to the business, then the person does not become a "worker."
  1. [99]
    The Australian Law Dictionary[90] provides the following definition:
  1. incidental to (casually linked to, in the sense of occurring only in conjunction with) some right or interest…
  1. [100]
    I have earlier noted, satisfaction of this particular element was not ultimately contested by the Regulator at the Hearing, given his Honour's decision of the ICQ in Baigorri v Workers' Compensation Regulator[91] on appeal.
  1. Whether Mr Fludder "sublet the contract" or "employed a worker"
  1. [101]
    As stated earlier in the consideration of this decision, there is nothing before me to indicate that Mr Fludder "sublet the contract", pursuant to s 3(b)(i). 
  1. [102]
    With respect to the question of whether Mr Fludder "employed a worker" (pursuant to s 3(b)(ii)(iii)), there is no evidence to suggest that Ms Foord was 'employed by' Mr Fludder – and even if she was employed by him, it would not matter because Mr Fludder fulfilled the condition of "performing part of the work personally". 
  1. [103]
    I have earlier noted, this element was not pressed by the Regulator at the Hearing either.
  1. Was Mr Fludder performing work or volunteering when he attempted to fix the leaking water pipe?
  1. [104]
    In summary, the Respondent submitted that Mr Fludder attempted to fix the leaking water pipe for his and Ms Foord's own convenience and benefit "by ensuring they had fresh water available at the site of their caravan on Mr and Mrs Shea's property."[92]  The Respondent asserted that Mr Fludder acted to try to repair the leaking water pipe "without the knowledge of Mr or Mrs Shea."[93]  The Respondent therefore concluded that "In undertaking the repair work Mr Fludder was acting as a volunteer."[94]
  1. [105]
    In the Respondent's Statement of Facts and Contentions, it was further elaborated that "The site where the Appellant and Mr Fludder's caravan was ultimately situated on the Shea's property did not have a tap of running water available."  The Respondent further asserted that on Monday, 15 May 2023 Mr Shea bought a new pipe and fittings to supply water to the caravan site and that he and Mr Fludder connected it up that afternoon.  The Respondent said "Mr Shea turned on the water to allow Mr Fludder to fill the tanks on the caravan…(then) Mr Shea turned off the water.  In the course of carrying out the installation of the new pipe and fittings there was a discussion between Mr Shea and Mr Fludder about the water pipe being repaired if Mr Fludder wanted higher water pressure at the caravan site.  Mr Shea and Mr Fludder investigated the leak and located where the leak was occurring, and it was left on the basis that they would look at the issue together the next day Tuesday 16 May 2023 upon Mr Shea's return to the property.  In the course of that conversation the Respondent denies that Mr Shea provided any direction or instruction to Mr Fludder regarding the repair of the water pipe…On 16 May 2023 Mr and Mrs Shea left the property to attend an appointment.  Prior to leaving neither Mr Shea or Mrs Shea provided any instruction of direction to Mr Fludder about repairing the leaking water pipe.  Mr Fludder attempting to repair the water pipe was done without the knowledge of Mr or Mrs Shea."[95] 
  1. [106]
    Ms Foord's evidence was that a new tap had been installed, so she and Mr Fludder had access to water as promised.  Ms Foord said "…we were told that we would have water and power to our caravan, um, on arrival, and that wasn't the case.  Um, so Dwyane organised a tap to be installed so that we could, um, put water to our outdoor shower for us to be able to use that."  Ms Foord agreed with the proposition put to her that "this new tap is where you connected your water for the caravan."[96]  Ms Foord's evidence was that the new tap was fitted on Monday 19 May 2023 when Mr Shea "…came over and brought in the new tap and the new hose, and Barry and him installed the new hose so that we could actually use our outdoor shower."[97]  Also on that day, Ms Foord said Mr Shea picked up Mr Fludder on the quad bike and they went to view the water leak area.  Ms Foord confirmed she was not present at the conversation between the two men about fixing the water pipe.[98]  Mr Fludder took Ms Foord to look at the area later that day, and she saw "a trench already dug out, and it was covered in water, um, and that was where (Mr Shea) and (Mr Fludder) had done to – check."[99]  Mr Fludder told Ms Foord he was going to fix the water leak.[100]  When Mr Fludder and Ms Foord joined Mr and Mrs Shea for dinner again on Monday evening, Ms Foord said they "…discussed that the, um, - the water pressure in our van wasn't very good.  The showerhead wasn't very good…that was when (Mr Shea) told us that there was another water leak."[101] 
  1. [107]
    The following morning was Tuesday 20 May 2023.  Ms Foord's evidence was that she and Mr Fludder talked about how they would spend the day and that Mr Fludder had wanted to explore the Cape Hillsborough area "but I reminded him that we were here to do some jobs and that we needed to fix this water leak first before we went and explored."[102]  Ms Foord went on to explain that she said that to Mr Fludder because "we were only there for the two weeks, and we need to help them out as much as we could…it was one of the jobs that they asked us to do as part of – part of our time there."[103]
  1. [108]
    Exhibit 3 is a mud map of the property. It shows the location of the caravan proximate to power and water, next to the "old house".  The Appellant submitted Mr Shea had told Mr Fludder and Ms Foord that "the water leak had been there for some months…Exhibit 3 [shows]…that the water leak was quite far away from the new tap, and so it's a conflation of the evidence…to say that working on the water leak was solely for the benefit of Ms Foord and Mr Fludder because it related to the new tap.  The water leak didn't relate to the new tap; those are two different things on the evidence…"[104]
  1. [109]
    I accept Ms Foord's evidence that Mr Fludder had wanted to go exploring on the morning of his death - but that she had told him to go and fix the leaking water pipe instead because they needed to do the work promised in order to discharge their obligation.  The Appellant concluded that because Mr Fludder did go to attempt to fix the leaking water pipe, instead of exploring the area as he had wanted to do, "you'd infer from the fact of that conversation, and from the fact that he went to do the work, that he agreed that that was part of his obligation under the contract."[105]
  1. [110]
    In my view, the reason Mr Fludder went to work on the water pipe was because it was one of the jobs Mr Shea had asked Mr Fludder to do.  Mr Fludder had put aside his preference to be at leisure that day because he recognised his obligation to perform the work in return for the electricity, water and place to park up, as agreed with Mr and Mrs Shea.

Costs

  1. [111]
    In light of my conclusions above, an order will be made in favour of the Appellant to allow the appeal and set aside the Respondent's review decision dated 13 February 2024.  I will now consider the issue of costs.
  1. [112]
    In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2), Justice Davis considered the issue of costs in a Workers' Compensation Appeal and relevantly stated the following: [106]
  1. [16]
    The power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act.   It therefore follows that costs ought ordinarily follow the event.   While costs would normally follow the event of the appeals to the QIRC, there is a discretion to make some other costs order.  In Davidson v Blackwood, the point is made that in the absence of any reasons to make any other costs order, costs follow the event.  That does not remove the discretion to make some other order and does not extinguish the necessity to give reasons why any costs order was made…
  1. …
  • Section 558 provides as follows:
  1. "558
    Powers of appeal body
  1. (1)
    In deciding an appeal, the appeal body may—
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. (2)
    If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
  1. (3)
    Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation." (emphasis added)
  • By s 558(3), what is "in the appeal body's discretion" (here the QIRC ) are the "costs of the hearing".  The "costs of the hearing" may be quite a different thing to the "costs of the appeal".
  • The power to award costs is not a common law power.  It is one granted by statute.  Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so.
  1. …
  1. [25]
    However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act.  In determining the proper construction of s 558(3), and in particular the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole.
  1. [26]
    In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC.  It has drawn a clear distinction between different parts of the appeal process.  While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given.  The costs are limited to the "costs of the hearing".
  1. [27]
    The law of costs recognises "costs of action" and "costs of trial".  In my view, they equate to "costs of appeal" and "costs of hearing" respectively.  The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms:
  1. "1.19
    An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution."
  1. [28]
    I accept that distinction.  I consider that the term "costs of the hearing" in s 558(3) is equivalent to "costs of trial" recognised by the law of costs and explained by Professor Dal Pont.
  1. [29]
    Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not "costs of the appeal" but "costs of the hearing" and costs assessors should assess the "costs of the hearing" as they would "costs of trial" as explained by Professor Dal Pont.
  1. [113]
    Costs in Workers' Compensation Appeals ordinarily follow the event.  Had the Respondent not defended this proceeding, Ms Foord would not have incurred the expense which she did during the hearing of this matter. An award of costs in favour of the Appellant is reasonable and appropriate, not to punish the Respondent for defending the proceeding but rather out of fairness to the Appellant in ensuring appropriate indemnification. For those reasons, a costs order will be made in favour of Ms Foord.
  1. [114]
    For the reasoning outlined in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[107] the Respondent will only be required to pay the "costs of the hearing" rather than the "costs of the appeal".
  1. Conclusion
  1. [115]
    For those reasons, I am satisfied that Ms Foord has proved to the required standard that:
  • Mr Fludder was a "worker" under the extended definition pursuant to Schedule 2, Part 1, s 3 of the WCR Act
  1. Orders

  1. [116]
    I order accordingly.
  1. 1.
    The appeal is allowed.
  1. 2.
    The Respondent's decision dated 13 February 2024 is set aside and substituted with a new decision that Mr Fludder was a 'worker' within the meaning of section 11 of Workers' Compensation and Rehabilitation Act 2003 (Qld).
  1. 3.
    The Appellant's application for compensation is remitted to WorkCover Queensland to be determined according to law.
  1. 4.
    The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Footnotes

[1] T1-4, line 13.

[2] Exhibit 1; Respondent's Statement of Facts and Contentions filed 18 June 2024, [8].

[3] Exhibit 2.

[4] Appellant's Statement of Facts and Contentions filed 13 May 2024, Attachment A, [6].

[5] Ibid [10].

[6] Ibid [12].

[7] Ibid [11].

[8] Form 9 – WCR notice of appeal filed 4 March 2024, 3.

[9] T 1-6, line 21.

[10] Form 9 – WCR notice of appeal filed 4 March 2024, Attachment 1, 1.

[11] Ibid 2.

[12] Ibid 3.

[13] Ibid.

[14] Ibid 1.

[15] Form 9 – WCR notice of appeal filed 4 March 2024, Attachment 1, 16-17.

[16] Church v Workers' Compensation Regulator [2015] ICQ 031, [27]; State of Queensland (Queensland Health) v Q-COMP and Coyne (2003) 172 QGIG 1447.

[17] [2019] QIRC 203.

[18] Ribeiro v Workers' Compensation Regulator [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. 

[19] Form 9 – WCR notice of appeal filed 4 March 2024, Attachment 1, 4.

[20] Mention, 24 October 2024, T 1-2, lines 28-29.

[21] Mention, 24 October 2024, T 1-2, line 39; T 1-24, line 14; T 1-27, line 20.

[22] T 1-29, line 26.

[23] [2016] ICQ 010.

[24] [2024] ICQ 2.

[25] [2022] QIRC 003.

[26] Filed 18 June 2024, [33]; T 1-2, lines 36-38.

[27] [2024] ICQ 2, [47]; T 1-38, lines 6-16.

[28] T 1-38, lines 10-18.

[29] Respondent's Statement of Facts and Contentions filed 18 June 2024, [6]-[7].

[30] T1-1, line 37.

[31] Respondent's Statement of Facts and Contentions filed 18 June 2024, [12a].

[32] As per Facebook post by Mrs Shea.

[33] As per Mr Shea's statement to WorkCover on 26 July 2023.

[34] [2022] QIRC 003.

[35]Smith v Workers' Compensation Regulator [2022] QIRC 003, citing Wilms v Workers' Compensation Regulator [2015] QIRC 021; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Scammell and Nephew Ltd v HC and JG Ouston [1941] AC 251; Koman v The Guitar Gym Pty Ltd [2012] QCATA 195; Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11.

[36] T 1-40, lines 39-45.

[37] (1893) 6 R 67; T 1-47, lines 6-10.

[38] T 1-40, lines 7-8.

[39] T 1-42, lines 18-21.

[40] T 1-42, lines 35-39.

[41] T 1-35, lines 25-44.

[42] Form 9 – WCR notice of appeal filed 4 March 2024, Attachment 1, 5.

[43] T 1 – 8, lines 1-13.

[44] T 1 – 10, lines 21-48; T 1-11, lines 1-10.

[45] Appellant's Statement of Facts and Contentions filed 13 May 2024, [4]-[6].

[46] Respondent's Statement of Facts and Contentions filed on 18 June 2024 [11].

[47] T 1-17, lines 9-19.

[48] Form 9 – WCR notice of appeal filed 4 March 2024, Attachment 1, 5.

[49] Ibid 5.

[50] Ibid 6.

[51] Ibid 4.

[52] Ibid 5.

[53] [2022] QIRC 003.

[54] T 1-29, lines 46-49.

[55] T 1-30, lines 1-5.

[56] T 1-30, lines 24-30.

[57] T 1-30, lines 36-37.

[58] T 1-31, lines 4-5.

[59] T 1-31, lines 10-24.

[60] T 1-39, line 37.

[61] T 1-39, line 14.

[62] T 1-40, lines 13-15.

[63] Respondent's Statement of Facts and Contentions filed 18 June 2024, [11].

[64] Ibid [12].

[65] T 1-39, lines 7-12.

[66] T 1-39, lines 16-19.

[67] T 1-40, line 39-45.

[68] T 1-39, line 21-26.

[69] T 1-33, lines 28-32.

[70] [1989] 2 NSWLR 309.

[71] T 1-33, lines 39-44.

[72] T 1-34, lines 29-31.

[73] T 1-37, lines 15-21.

[74] T 1-47, lines 12-17.

[75] Form 9 – WCR notice of appeal filed 4 March 2024, Attachment 1, 6.

[76] T 1-36, lines 23-35.

[77] T 1-36, lines 41-49.

[78] T 1-41, lines 16-27.

[79] T 1-17, lines 23-43.

[80] T 1-17, lines 23-43.

[81] T 1-41, lines 32-47.

[82] T 1-46, lines 25-30.

[83] T 1-46, lines 39-49.

[84] Respondent's Statement of Facts and Contentions filed 18 June 2024, [8].

[85] Form 9 – WCR notice of appeal filed 4 March 2024, Attachment 1, 2.

[86] Ibid 12.

[87] Ibid 2.

[88] Ibid 8.

[89] [2024] ICQ 002.

[90] Australian Law Dictionary (Edited Trischa Mann), Third Edition, Oxford University Press, 454.

[91] [2024] ICQ 002.

[92] Respondent's Statement of Facts and Contentions filed 18 June 2024, [20].

[93] Ibid [13], [15]-[17].

[94] Ibid [29].

[95] Respondent's Statement of Facts and Contentions filed 18 June 2024, [13], [15]-[17].

[96] T 1-9, lines 37-44.

[97] T 1-11, lines 26-49.

[98] T 1-19, lines 43-46.

[99] T 1-12, lines 15-40.

[100] T 1-13, lines 4-5.

[101] T 1-11, lines 26-49.

[102] T 1-14, lines 41-45.

[103] T 1-15, lines 1-7.

[104] T 1-46, lines 39-49.

[105] T 1-36, lines 1-6.

[106][2021] ICQ 13, citing Workers' Compensation Regulator v Glass (2020) 4 QR 693; SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106.

[107] [2021] ICQ 13.

Close

Editorial Notes

  • Published Case Name:

    Foord v Workers' Compensation Regulator

  • Shortened Case Name:

    Foord v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 27

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    30 Jan 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Baigorri v Workers' Compensation Regulator [2024] ICQ 2
5 citations
Jump To
Cite 1 - [2024] ICQ 2
Cite 2 - [2024] ICQ 2
Cite 3 - [2024] ICQ 2
Cite 4 - [2024] ICQ 2
Cite 5 - [2024] ICQ 2
Browne v Dunn (1893) 6 R 67
2 citations
Jump To
Cite 1 - (1893) 6 R 67
Cite 2 - (1893) 6 R 67
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Ermogenous v Greek Orthodox Community of SA Ltd (2002) 209 CLR 95
2 citations
Jump To
Cite 1 - (2002) 209 CLR 95
Cite 2 - (2002) 209 CLR 95
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11
2 citations
Jump To
Cite 1 - (1988) 5 BPR 11
Cite 2 - (1988) 5 BPR 11
Koman v The Guitar Gym Pty Ltd and Anor [2012] QCATA 195
2 citations
Jump To
Cite 1 - [2012] QCATA 195
Cite 2 - [2012] QCATA 195
R v A2 (2019) 93 ALJR 1106
2 citations
Jump To
Cite 1 - (2019) 93 ALJR 1106
Cite 2 - (2019) 93 ALJR 1106
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
3 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [2019] QIRC 203
Cite 3 - [2019] QIRC 203
Scammell (G.) & Nephew Ltd. v Ouston (1941) AC 251
2 citations
Jump To
Cite 1 - (1941) AC 251
Cite 2 - (1941) AC 251
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
2 citations
Jump To
Cite 1 - (2000) 49 NSWLR 262
Cite 2 - (2000) 49 NSWLR 262
Smith v Workers' Compensation Regulator [2022] QIRC 3
5 citations
Jump To
Cite 1 - [2022] QIRC 3
Cite 2 - [2022] QIRC 3
Cite 3 - [2022] QIRC 3
Cite 4 - [2022] QIRC 3
Cite 5 - [2022] QIRC 3
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
SZTAL v Minister for Immigration and Water Protection (2017) 91 ALJR 936
2 citations
Jump To
Cite 1 - (2017) 91 ALJR 936
Cite 2 - (2017) 91 ALJR 936
Wilms v Workers' Compensation Regulator [2015] QIRC 21
2 citations
Jump To
Cite 1 - [2015] QIRC 21
Cite 2 - [2015] QIRC 21
Workers' Compensation Regulator v Glass(2020) 4 QR 693; [2020] QCA 133
2 citations
Jump To
Cite 1 - (2020) 4 QR 693
Cite 2 - (2020) 4 QR 693
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13
2 citations
Jump To
Cite 1 - [2021] ICQ 13
Cite 2 - [2021] ICQ 13

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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