Casper v WorkCover Queensland [2000] ICQ 21 (2000) 164 QGIG 157

16 June, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 157 INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation Act 1990 – s. 6.7 – appeal against decision of industrial magistrate Peter Arthur Casper AND WorkCover Queensland (No C4 of 2000) PRESIDENT HALL 8 June 2000 DECISION The issue, both before the Industrial Magistrate and before this Court, is whether the appellant is a “worker” for the purposes of the Workers’ Compensation Act 1990. The Industrial Magistrate held that he was not a “worker” because he had not entered into a contract of employment with the alleged employer, viz Budbay Pty Ltd. His Worship took that view because he held that there was no mutuality of obligation and no intention to create legal relations. On the appeal to this Court it has been accepted that the appellant cannot be held to be a “worker”, if he was not a party to a contract of employment. It has been accepted also that to establish a contract of employment the appellant had to establish a mutuality of obligation and an intention by the parties to be legally bound. The appeal was pleaded on the ground that there had been an error of law. There was no error of law. His Worship stated every legal principle with precision and accuracy and referred to every relevant reported decision. There is no basis for asserting that the decision is, on the facts, so manifestly unjust as to compel the conclusion that there has been an unidentifiable error of law. The submissions were rather different. The appeal proceeded as if it was an appeal by way of a rehearing. I think that it follows from s. 6.7(2) of the Workers’ Compensation Act 1990 that the appeal was in truth an appeal by way of a rehearing, and I have dealt with the matter on that basis. The appellant was interested in increasing his logable hours in the hope of gaining employment as a commercial pilot. He approached Mr McVinish of Budbay Pty Ltd who provided the planes and the pilots used by the Ramblers Parachuting Club at Toogoolawah in the Brisbane Valley. He sought the opportunity, without reward, to fly those planes at the weekend in order to get his hours up. The Industrial Magistrate held: “I find the arrangement was that he volunteered to make himself available every second Sunday in the hope of getting a flight and getting some hours up. There was no obligation to fly every second Sunday, it was only that if he wanted to fly, to turn up, and he might get a flight. There was no requirement to do anything, as other pilots were available including Allan McVinish. If he wanted the opportunity to fly and increase his flying hours he had to be there and sometimes the opportunity presented itself and sometimes it didn’t.”. On His Worship’s finding that the appellant had no obligation to attend at the site on Saturday and His Worship’s finding that Budbay Pty Ltd had no obligation to allow him to fly any of its planes, that conclusion that there was no mutuality of obligation and no intent to create legal relations is inevitable. It must be remembered that Warren v Coombes (1979) 142 CLR 521 at 551 per Gibbs ACJ, Jacobs and Murphy JJ, does no more than allow an appellate Court to substitute an inference drawn from facts which are undisputed or which, having been disputed, are established by the findings by the Court of first instance. Much has been made of the very significant measure of control which Mr McVinish exercised over the appellant’s activities in flying the aircraft. Whilst the presence of control (or more accurately the right to exercise control) is critical to characterisation of a contract as a contract of employment, the existence of control is not necessarily evidence that a contract of employment exists. It seems to me that in this case the control that was exercised was the sort of control that the alter ego of the proprietor of the aeroplane might have been expected to exercise, in order to protect the aeroplane and discharge the obligation to the parachutists who were flying in it. In all the circumstances I dismiss the appeal. I have been asked to deal with the matter of costs on the basis that the relevant power is that of s. 6.7(3) of the Workers’ Compensation Act 1990. Although that provision refers to costs on appeal being “in the discretion of the Industrial Court” costs under the provision were traditionally awarded on the basis that costs follow the event. Doubtless a statutory discretion cannot be given up to established practice, but the justification for withholding the grant of costs developed in this case, viz that there was no authority directly in point, seems to me to be quite insubstantial. I order that the appellant pay the respondent’s costs of and incidental to the appeal. I am told that the parties can agree on the quantum of costs. Lest that expectation prove incorrect, I reserve the matter of assessment of costs. Dated this eighth day of June, 2000. D.R. HALL, President. Released: 8 June 2000 Appearances:– Mr D. P. O’Gorman instructed by Quinlan Miller and Treston, Solicitors for the appellant. Mr G. Jones of Counsel instructed by WorkCover Queensland for the respondent. ########################################################################################################################## # -- 1 of 1 --