[Extract from Queensland Government Industrial Gazette,
dated 17 August, 2007, Vol. 185, No. 16, pages 338-347]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal
Big Issue in Australia Limited AND Q-COMP (First Respondent) and Kenneth Craig Hill (Second Respondent)
(WC/2006/97)
DEPUTY PRESIDENT SWAN
10 August 2007
DECISION
This is an application lodged by Big Issue in Australia Limited (Big Issue/appellant) against a decision issued by QCOMP pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
Mr Kenneth Hill was the subject of a successful workers' compensation claim against Big Issue.
In December 2006, Q-COMP issued its reasons for setting aside the insurer's decision and stated in its correspondence
to Mr Hill, under "Decision Summary" the following:
"In all the circumstances of the case, I am satisfied that:
1. You qualify as a 'worker'.
2. You sustained a personal injury, namely a stress reaction.
3. Your injury arose in the course of your employment and your employment was a significant contributing factor
to your sustained injury.
4. Your injury did not arise out of reasonable management action undertaken in a reasonable way.
Therefore I conclude that the exclusionary provisions do not operate to exclude you from the receipt of
compensation in accordance with section 32(5) of the Act.
My decision is to set aside the decision by WorkCover. Therefore, my decision is that your claim is one for
acceptance.".
Mr Hill, as a party to the proceedings, represented himself. Both Q-COMP and Big Issue were represented by Counsel.
This decision relates to the discrete question of whether Mr Hill was a "worker" pursuant to s. 11 of the Act. For the
claim that Mr Hill was a "worker" to be successful, it had to be established that Mr Hill was a "worker" on the date of
9 May 2006 when an "incident" had occurred around which the original successful application was centred.
Schedule 2, Part 1 of the Act states:
"Part 1 Persons who are workers
1. A person who works under a contract, or at piecework rates, for labour only or substantially for labour only is a
worker.
2. A person who works for another person under a contract (regardless of whether the contract is a contract of
service) is a worker unless (a) the person performing the work (i) is paid to achieve a specified result or outcome; and
(ii) has to supply the plant and equipment or tools of trade needed to perform the work; and
(iii) is, or would be, liable for the cost of rectifying any defect in the work performed; or
(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.
3. A person who works a farm as a sharefarmer is a worker if (a) the sharefarmer does not provide and use in the sharefarming operations farm machinery driven or drawn by
mechanical power; and
2
(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.
4. 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.
5. 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 some one 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.
6. 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.
7. 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.
8. 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.".
Evidence was given on behalf of Big Issue by Mr B. Pennings, formerly Vendor Support and Distribution Manager of
Big Issue in Brisbane, Ms A. Sweetman, Office Administrator for Big Issue, based in Melbourne, and Ms G. Pidutti,
National Vendor Support Manager and Melbourne Vendor Support Distribution Manager, also based in Melbourne. By
agreement between the parties and with the consent of the Bench, the last two witnesses gave their evidence via
telephone.
A significant degree of evidence from the appellant went to establishing that a tripartite contract between Vodafone
Australia Foundation Pty Limited (Vodafone), Big Issue and Mr Hill never eventuated because of Mr Hill's
intransigence around the terms of the contract. As well, and particularly because of the incident which occurred on
9 May 2006 around which Mr Hill makes his claim, the appellant's evidence centred upon the week commencing 8 May
2006.
While I have found that there was no contract on foot between the tripartite parties (for reasons outlined later in this
decision), there is little doubt that Mr Hill believed that a contract (albeit an oral contract) did in fact exist and it was for
this that he was paid during the week commencing 8 May 2006. For reasons outlined later in this decision, I have found
that Mr Hill was engaged as a "worker" during the week in question but that the work performed was not related to the
Vodafone contract.
Mr Hill presents as an intelligent person who also suffers from a disabling mental disorder. Mr Hill was assisted by the
Bench to the extent that he gained a general understanding of Court processes and the giving and taking of evidence.
Mr Hill was able to represent himself adequately during the hearing but like any self-represented person, he was
uncomfortable with and unaware of legal proceedings and concepts and this, coupled with his disorder, made the
experience a very trying one for him.
Evidence
Evidence for the appellant
Benjamin Pennings
 In his previous position with Big Issue, Mr Pennings was responsible for managing the Brisbane office and all
employees, vendors and volunteers.
 As from November 2005, Mr Pennings reported directly to Ms Pidutti and she reported directly to Mr Persson,
General Manager of Big Issue situated in Melbourne.
3
 Big Issue is a non-profit organisation directed mainly towards assisting "homeless and other marginalised
people" gain remunerative employment. One way of achieving this goal is through the "vendor" program where
vendors buy a copy of the Big Issue magazine for $2.00 and sell it to the public for $4.00.
 Vendors are not employees of Big Issue.
 Occasionally, funding is received by Big Issue for the express purpose of employing someone and this person is
usually a vendor. The funding is usually of a set amount with Big Issue determining the wage to be paid and the
period of time during which the person would be employed.
 Within the Queensland office of Big Issue, some employees were engaged as casuals, one was a permanent parttime employee and Mr Pennings was the only full-time employee.
 Mr Hill became known to Big Issue around May 2005. He worked as a vendor.
 In October 2005, funding was received from a company sufficient to permit Mr Hill to work for a fixed period of
time from 24 October 2005 to 24 April 2006.
 When that contract expired, Mr Pennings sought another contract for Mr Hill.
 In March 2006, Mr Hill was a winner in the national "Vodafone Award" which permitted 4 persons to work for
their favourite charity or non-profit organisation for one year.
 Mr Hill chose Big Issue as the organisation for which he wished to work.
 At the time of the expiration of his first contract (ending 24 April 2006) and prior to finalising the contract for
the Vodafone work, Mr Pennings sought to obtain work for Mr Hill and was successful in placing Mr Hill in a
Queensland Senator's office.
 Mr Pennings stated that because of the unique situation in which Mr Hill found himself (the hiatus which
occurred with the end of the first contract on 24 April 2006 and the commencement of the new contract
sometime in the near future), when Mr Hill left Big Issue to work for the Queensland Senator, there was no
farewell celebration held for Mr Hill.
 After 24 April 2006, Mr Hill attended the office of Big Issue. Mr Pennings stated that Mr Hill's name was not on
the roster at any time between 10 April 2006 and 24 April 2006 when he was on annual leave.
 Mr Pennings stated that if Mr Hill had come into the office at any time after 24 April 2006, then he did so on a
voluntary basis. Mr Pennings had presumed that Mr Hill's presence in the office may have been connected to his
writing articles for the Big Issue magazine.
 Around the period of 8 May 2006, Mr Hill and Mr Pennings were involved in discussions about the contract
which had been offered by Vodafone to Mr Hill.
 No agreement had been reached between the three parties (Vodafone, Big Issue and Mr Hill) because Mr Hill
had not agreed to what he viewed as a change to his original understanding with Vodafone.
 From 8 May 2006, Mr Pennings stated that he had spent a considerable amount of time discussing the issue
around the contract with Mr Hill, but to no avail. He also stated that Mr Hill came and went from the office as
he saw fit.
 An incident occurred in the Big Issue office on 9 May 2006 between Mr Hill and a vendor of which Mr Pennings
became aware.
 Mr Pennings had hoped that Mr Hill could have commenced his employment under the Vodafone contract on
8 May 2006 as he was sure that Mr Hill had finished his work with the Queensland Senator and Mr Pennings
was worried about Mr Hill's financial situation.
 During the week commencing 8 May 2006, Mr Pennings determined to grant to Mr Hill an "ex gratia" payment
based on the rate of pay Mr Hill would have received from Vodafone had the contract been finalised.
 After a discussion with Ms Pidutti, Mr Pennings stated:
"... we decided to give him an amount calculated arbitrarily on the rate of 35 casual hours. We picked the
figure of 35 out of the air. Although Mr Hill had been in and out of the office that week, speaking to me
about his contract for large amounts of time, our discussions hadn't occupied anywhere near that amount of
time.". [Exhibit 8, para 68.]
 Mr Pennings said that he had advised Mr Hill that the payment made to him was on an ex gratia basis.
 Discussions around the contract with Vodafone continued until Friday 12 May 2006.
 On Monday 15 May 2006, Mr Pennings spoke to Ms Pidutti in Melbourne and advised her that Mr Hill had been
behaving inappropriately at the workplace and he stated that Ms Pidutti told him that she had given Mr Hill "an
oral and written direction not to attend the Big Issue's office until further notice". [Exhibit 8, para 86.]
 By Thursday 18 May 2006, upon believing that the situation with regard to Mr Hill had become untenable, the
offer of employment (in relation to the Vodafone contract) had been withdrawn.
Anouska Sweetman
 In early April 2006, Ms Sweetman had a discussion with Mr Hill advising him that he needed to take his annual
leave before the first contract ended otherwise he would lose his leave loading.
 Mr Hill's termination pay covered the period until 24 April 2006.
 In May 2006, Ms Sweetman was instructed by Ms Pidutti "to process a payment to Mr Hill which was the
equivalent of 35 casual hours work or $791.88 (gross)". [Exhibit 10, para 19.]
4
 Ms Sweetman said she was not aware of the circumstances under which the payment had been made to Mr Hill
at that time, but sometime after she says she was advised by Mr Pennings and Ms Pidutti that the payment was
an ex gratia payment "to tide him [Mr Hill] over until his Vodafone contract could start". [Exhibit 10, para 21.]
 Ms Sweetman had worked for Big Issue for the previous 12 months and up until that time, each payment she had
processed for casual or part-time staff had been accompanied with a timesheet signed by the local manager. This
was not the case for Mr Hill's payment.
Gemma Pidutti
 Reference was made to Mr Hill's first contract.
 "During the period of Mr Hill's fixed term employment, I did not, at any stage, guarantee that Big Issue would
offer Mr Hill ongoing employment or extend this contract.". [Exhibit 9, para 16.]
 Reference was made to the Vodafone Award which had been won by Mr Hill.
 No contract ever eventuated between the parties because Mr Hill did not agree to the terms contained in the draft
written contract.
 During the week commencing 8 May 2006, Ms Pidutti was aware that discussions were ongoing with Mr Hill for
the purpose of finalising the contract.
 Concern had been expressed by Mr Pennings to Ms Pidutti about Mr Hill's behaviour at the Big Issue office and
on 16 May 2006, Ms Pidutti stated that "given that we knew him to be a vulnerable person with no income other
than a small pension, Big Issue decided to give him one-off ex-gratia payment as a sign of goodwill". [Exhibit 9,
para 55.]
 Ms Pidutti further stated that "this payment was not made because he had been working for Big Issue, but just to
try to maintain a good relationship so that we could resolve the issues and move forward with the project".
[Exhibit 9, para 61.]
Evidence for the second respondent
Kenneth Craig Hill
 Mr Hill referred to an e-mail sent from Mr Pennings to Ms Pidutti "urging her to classify me as a casual, so as to
avoid WorkCover responsibilities. He refers to WorkCover as a 'stunt', which indicates his contempt for the
workers compensation system". [Exhibit 11, para 1.]
 Mr Pennings had stated, two weeks earlier than 8 May 2006, that the applicant was on a full-time contract.
 Mr Pennings stated that Mr Hill was a "worker" at the time of his injury on 9 May 2006.
 On 16 May 2006, Ms Pidutti sent two e-mails to Mr Hill stating "that I should take time off work, and also that
my expenses incurred as a result of my work from 1st May to 12th May would be reimbursed". [Exhibit 11, para
2.]
 The receipts for the above show that all receipts were issued by Big Issue.
 On 15 June 2006, Ms Pidutti e-mailed WorkCover stating that Mr Hill was employed as a casual from 8 May
2006 to 14 May 2006.
 Ms Pidutti changed her views on this by 20 June 2006.
 Ms Pidutti also agreed that Mr Hill was a worker at the time of his injury on 9 May 2006.
 On 27 October 2006, Ms Pidutti wrote to the "Industrial Relations Commission (IRC), stating that I was not
employed on any basis and that the salary paid to me was not salary at all, but an 'ex-gratia payment'. She also
states that she had deliberately short paid me by three hours so that it would not appear that I was employed at
all, or that I was a casual employee. The decision to short pay me by three hours was made after I applied for
WorkCover, in a deliberate attempt to mislead WorkCover and IRC". [Exhibit 11, para 4.] This is evidenced in
Ms Pidutti's statement to the Australian Industrial Relations Commission. [Exhibit 11, para 6.]
 Mr Hill believed that he was engaged at the relevant time under the "Vodafone-funded contract".
The correspondence (e-mails) passing between the parties
Date
20 June 2006
8.15 a.m.
From
Gemma
Pidutti
To
Prue Carne
Re
Dates of pay
18 June 2006
5.21 p.m.
Prue Carne
Gemma
Pidutti
Dates of pay
Message
"Hi Prue
Yes his last day of work and was paid was Friday
12 May 06. I did it as week ending.
Thanks
Gemma". [Emphasis added.]
"Hi Gemma
Can you please confirm that the last day Craig
worked was 14/05/06. This is a Sunday and it
conflicts with Ben's statement advising the 12th, being
5
Date
From
To
Re
15 June 2006
12.02 p.m.
Gemma
Pidutti
Prue Carne
Dates of pay
26 May 2006
Steven
Persson
Craig Hill
16 May 2006
3.44 p.m.
Gemma
Pidutti
Craig Hill
Confirmation
of the
withdrawal of
offer of
employment
with the Big
Issue in
Australia
Limited
Expenses
16 May 2006
12.53 p.m.
Gemma
Pidutti
Craig Hill
Next few days
16 May 2006
10.33 a.m.
Ben
Pennings
Gemma
Pidutti
Steven
Persson
George
Halkias
URGENT
again
Message
the Friday was the last day that Craig worked and
was paid. If this is correct, can you please alter & resend this email to me so that the records match 100%.
Thank you.
Regards
Prue Carne". [Emphasis added.]
"Hi Prue
Here are the list of pay dates - let me know if this is
clear.
Craig worked on an employment contract from Sarina
Russo Employment (we paid Craig and then they
reimbursed us) from 25/10/05 - 24/4/06.
He was then paid on a casual basis from 8th May to
w/ending 14th May for 35hrs on a casual rate.
There has no pay other than the above week.
Thanks.". [Emphasis added.]
"... Given with withdrawal of this offer and the
cessation of your casual employment with The Big
Issue, you should not represent yourself as being
employed or an agent of The Big Issue in any
dealings with vendors or third parties in the future.
Yours sincerely,
Steven Persson". [Emphasis added.]
"Hi Craig
Just to let you know that I have spoken to Craig. You
[sic] expenses will be going through tonight which
means you will receive it tomorrow. I asked her
about petty cash and she told me that they did not
have enough in petty cash to cover those expenses
and it would be quicker to do it this way.
Thanks
Gemma Pidutti".
"Hi Craig
Just to follow up on the conversation we had earlier
we are still concerned about the way you are feeling.
We appreciate your patience in allowing us some
further time to look into some of the issues that you
have raised and to review aspects of the project with
a view to moving forward.
To this effect we believe it would be best if you took
a few days off until we can come back to you with a
plan to resolve some of the existing issues. I know
you are concerned about how this may be viewed by
Vodafone but I think they will be most understanding
and happy that we are moving forwards.
Thanks [sic] you for your understanding.
Regards
Gemma Pidutti". [Emphasis added.]
"Hi all
Things are getting ridiculous and Craig has send [sic]
info/emails to a journalist going totally against what
he agreed yesterday - the journo doesn't start to 5:30
but I have left her a message to call me - I will just
apologise to her for Craig mixing her up in this
matter rather than to bag him or anything.
We need to sort this matter TODAY - currently it
stands that Craig has refused to sign a reasonable
employment contract and thus his work over the
last few days has been casual - if we pay him
tomorrow under the new contract rates, we are
basically accepting that the unsigned contract is valid
which could cause us all sorts of mess.
6
Date
From
To
Re
11 April 2006
1.35 p.m.
Craig Hill
Anouska
Sweetman
Public holidays
10 April 2006
3.51 p.m.
Anouska
Sweetman
Craig Hill
Public holidays
10 April 2006
3.06 p.m.
Craig Hill
Anouska
Sweetman
Public holidays
Message
Gemma has asked Craig not to come in for a couple
of days so we can sort this out - I'm sure this will
feed into what he has going on and he may start
causing trouble - he told Gemma that he will be
calling Vodafone today.
I think we need to be proactive and sort this out asap
- it is calmer here now he is gone but in a way I'd
rather know what he is up to or not - he saw a doctor
this morning which may be to do with the stress leave
and workcover thing.
Again, it is important that we are classifying him
as currently casual as he refuses to sign the contract
- this needs to remain until/if we decide to run with
the program - he may try and pull a workcover
stunt today but as he is casual I don't think this
applies.
Ben. xxxxx
Kind Regards,
Ben Pennings". [Emphasis added.]
"Hi Anouska
I normally work Mon, Tue and Fri. Just wondering
why I wouldn't get Good Friday as well?
Regards
Craig".
"Your finish date will be the same Craig - your
contract, and our contract with Sarina Russo is only
valid until the 24th April.
From the details Gemma has distributed about
staffing, you would only have 1 public holiday in the
time you have taken leave - the Monday.
This actually works out better for you. If you finish
your contract without taking your annual leave we
pay the days owing to you at your normal rate - you
are only paid leave loading (which we have paid in
advance) when you are still an employee and take
time off.
I hope this make [sic] sense, but if it doesn't let me
know.
Anouska".
"Hi Anouska
The next three public holidays are on my normal
work days, which coincide with the 8.3 days leave I
am currently on. How will this affect my final
finishing date for this contract.
Craig Hill".
Consideration of evidence
While Mr Hill referred to oral communications he had with representatives from Vodafone around the issue of the
tripartite agreement and the proposed contract, these issues were not addressed within Mr Hill's statement before the
Commission. These issues were pursued by the appellant's witnesses and addressed by Mr Hill in his evidence. The
bottom line in all of this was that the contract was not signed by Mr Hill as he was unable to agree to the terms as
outlined in the contract. There is sufficient documentary evidence before the Commission to validate that fact. [Exhibit
14, pgs. 22-25, 32-35, 38-41.]
The question of whether Mr Hill "worked" during the week commencing 8 May 2006 will now be considered.
What I believe has infiltrated into the situation regarding Mr Hill is the unpleasant relationship which existed between
Mr Hill and Mr Pennings, specifically, and on-going friction between Mr Hill and other members of the Big Issue
management team. This much is clear from the evidence. [Attachment GP-3 of Exhibit 9.] That being so, it does not
have any bearing upon whether or not Mr Hill worked during the week in question.
7
I have considered the evidence of all witnesses around this point. What is inescapable is the material contained within
the various e-mails which have been cited above. I have not accepted that the payment made to Mr Hill was an ex
gratia payment.
Mr Pennings' e-mail of 16 May 2006, I believe, sets out the real situation:
"Again, it is important that we are classifying him as currently casual as he refuses to sign the contract - this needs to
remain until/if we decide to run with the program - he may try and pull a workcover stunt today but as he is casual
I don't think this applies.". [Exhibit 11.]
Where reference is made to the week in question, all references in the e-mails previously cited go to Mr Hill having
worked during the week of the incident. It is only later in the piece that references are made to Mr Hill's alleged ex
gratia payment.
Mr Hill in his evidence states that, together with the negotiations around the Vodafone contract, he had also performed
duties at the offices of Big Issue during the week commencing 8 May 2006. He supports this claim by stating that he
was able to access the restricted area of the office (an area not normally available to volunteers); that he had attended to
vendors at the counter; that he had handled money on behalf of Big Issue; that he had been asked to "take a few days
off"; that he had been paid for the week in question and that it was not an ex gratia payment.
With regard to the question of attending to vendors at the counter, Mr Pennings said that this may have occurred and if
it had, Mr Hill was not on a roster and he had not been asked to perform these duties by him. While Mr Hill stated that
a person called Amy had asked him to mind the counter for her, this was not contained within his statement to the
Commission and I am unable to consider that part of the claim because the appellant was not in a position to respond to
it.
I have been unable to accept Mr Pennings' evidence that Mr Hill was not working for Big Issue during the week in
question. As for Mr Hill, while he thought he was working under the Vodafone contract and was misguided in that
respect, at no time did he think he was not "working".
The relevant Payroll Advice given to Mr Hill was as follows:
"The Big Issue
148 Londsdale Street
MELBOURNE VIC 3000
Payroll Advice
17/05/2006 To 24/10/2006
24/10/2006
Page 1
8:13:43 AM
----------------------------------------------------------------------------------------------------------------------------- ------------------The Big Issue
Cheque No: PAY49
A.B.N.: 61 071 598 439
Payment Date: 17/05/2006
Craig Hill
Pay Frequency: Fortnightly
Pay Period:
1/05/2006 To 14/05/2006
Annual Salary: $44,707.00
Hourly Rate:
$22.625
Employment Classification:
Superannuation Fund:
Hesta Super Fund
Employment Type:
CASUAL
Gross Pay: $791.88
Net Pay: $437.88
Description
Hours
Calc. Rate
Base Hourly
Fringe Benefits - Craig
PAYG Withholding
Super Guarantee - Mgt/Admin
[Attachment GP-11 of Exhibit 9.]
35
$22.625
Amount
$791.88
-$314.00
-$40.00
$43.01
YTD
Type
Wages
Deductions
Tax
Superannuation Expenses".
8
As can be seen from the Payroll Advice, deductions were made for taxation and superannuation purposes. Witnesses
Pennings [Transcript, pgs. 39, 40] and Sweetman [Transcript, pgs. 110, 112] did not understand what constituted an ex
gratia payment. Ms Sweetman affirmed in cross-examination from Mr Hill that when notified by Mr Pennings to make
up the payment for Mr Hill, Mr Pennings said that the payment was for "work" performed by Mr Hill. It was only some
time after the event, that Ms Sweetman said she was told the payment had been an ex gratia payment. I believe
Ms Sweetman's evidence was truthful when questioned by Mr Hill when she confirmed, upon the advice of
Mr Pennings, that the payment was made for "work" performed by Mr Hill. It is understood that because Ms Sweetman
was in Melbourne, she would not have personally known whether Mr Hill had "worked" during the week in question.
I have taken into consideration that no specific contract was drawn up for Mr Hill during that period (which is usually
the case for casual/part-time workers with Big Issue), however, one cannot escape the documents in evidence and the
actual evidence in this case.
I believe that it was only when it became evident to Mr Pennings that casual work could not attract a WorkCover claim,
it was then that Mr Pennings' version of events changed.
In its final submissions, Q-COMP requested that the Commission take into account the fact that despite Mr Pennings'
belief that no employment contract existed between Big Issue and Mr Hill during the week commencing 8 May 2006,
Mr Pennings, nonetheless, was content for Mr Hill to remain in the office because he was hopeful that the Vodafone
contract would eventuate.
Submissions and conclusions
Ms Moody made reference, in her final submissions, to the decision in Ermogenous v Greek Orthodox Community of
SA Inc [2002] HCA 8, 187 ALR 92 at 99-100 where Gaudron, McHugh, Hayne and Callinan JJ stated:
"Intention to create contractual relations
[24] 'It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a
legally enforceable duty.' [Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 at 457 per Dixon
CJ, Williams, Webb, Fullagar and Kitto JJ.] 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'. [South
Australia v Commonwealth (1962) 108 CLR 130 at 154 per Windeyer J.]
[25] ... Because the search for the 'intention to create contractual relations' requires an objective assessment of the
state of affairs between the parties [Masters v Cameron (1954) 91 CLR 353 at 362 per Dixon CJ, McTiernan and
Kitto JJ; ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-9 per Gleeson CJ.] (as distinct
from the identification of any uncommunicated subjective reservation or intention that either may harbour) the
circumstances of which might properly be taken into account in deciding whether there was the relevant intention
are so varied as to preclude the formation of any prescriptive rules.".
In this case, the reality of the situation is that Mr Hill does suffer from a disabling mental condition and taking this into
consideration, the fact that he believed a different party was paying for his services when in reality he was being paid by
Big Issue does nothing to diminish his claim. I believe that both parties knew a contract for work was on foot and acted
accordingly. Within this context, the abovementioned decision [at point 25] is significant.
In Casper v WorkCover Queensland (2000) 164 QGIG 157 Hall P stated:
"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.".
With respect, the facts of that case can be distinguished from those in this case. There is no doubt that extra care should
have been taken by management of Big Issue with regard to Mr Hill because of his mental condition. In this case,
I have accepted that Mr Hill was working during the week in question (although he thought a different body was paying
for such work); he was present at the workplace; he was permitted to be in the restricted area of the office; he had
assisted vendors at the counter; he was "asked to take a few days off" and Big Issue, in all of its correspondence,
referred to payment for work for the week at a casual hourly rate. Mr Hill was then paid for work performed. I have
also accepted Mr Hill's evidence that he left the Senator's office because he had work to do at Big Issue. [Transcript, pg.
131.] Further, the pay which was received by Mr Hill had all the hallmarks of pay attaching to an employee with no
signs whatsoever of it being an ex gratia payment.
9
I believe that Mr Pennings was involved in avoiding the reality of the situation with Mr Hill in the mistaken belief that,
because of the difficulties he encountered with him, the position taken was somehow justified. Mr Hill may have been
difficult to deal with on many occasions (and this is evident from material placed before the Commission) but it is
hardly surprising given the nature of the work undertaken by Big Issue and the clients it seeks to assist.
I dismiss the appeal and affirm the decision of Q-COMP.
Order accordingly.
D.A. SWAN, Deputy President.
Hearing Details:
2007 13 July
Released: 10 August 2007
Appearances:
Ms S. Moody, Counsel, instructed by Ms S. McCartney of Freehills, for the
Appellant.
Mr S. McLeod, Counsel, instructed by Ms A.M. Treston of Q-COMP, for
the First Respondent.
Mr K.C. Hill, Second Respondent.
Government Printer, Queensland
The State of Queensland 2007.