GIO GENERAL LIMITED v BLACKTOWN RSL CLUB LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, SHELLER JA and SANTOW AJA 5 November 1996 [1996] NSWCA 212 WORKERS' COMPENSATION — boxing contest — employer conducting or holding contest — providers of venue — Workers' Compensation Act 1926 s 6 (14C)(a1); Taren Point Bowling and Recreation Club Ltd v Shapter [1982] NSWLR 219. A boxing contest was conducted by a firm insured by the appellants at the respondent's premises on 15 March 1979. One of the boxers was seriously injured and was paid compensation under the Workers' Compensation Act 1926 by the appellants. The appellants sought contribution from the club or its insurer on the ground of co-ordinate liability under s 6 (14C)(al) of the Act which deemed the boxer to be "employed by the person conducting or holding such contest...". The club provided the venue, controlled the admission of spectators, sold tickets provided by the promoter, but accounted for the full proceeds, and assisted in other ways. HELD, dismissing the appeal: (1) The mere use of club premises for holding contests and the exercise of its ordinary responsibilities and functions as a registered club cannot, without more, deem it to be the employer of contestants: Taren Point Bowling and Recreation Club Ltd v Shapter [1982] NSWLR 219 followed; State Compensation Board (NSW) v Anastassiadis (1986) 2 NSW CCR 1, distinguished; (2) The uninstructed opinion of the spectators as to the role of the club was not the test because the section was concerned with realities, not with appearances. Handley JA. This is an appeal by GIO General Limited and the partners of Meyers Enterprises (the firm) from a judgment of Windeyer J in the Equity Division. The appeal arises out of a boxing contest conducted by the firm at the premises of the Blacktown RSL Club on 15 March 1979. During that contest, one of the boxers, Steven Gawley, was seriously injured. He claimed and has been paid compensation under the Workers" Compensation Act 1926 by the firm which was insured with the company now known as GIO General Limited. The Club was also insured against its liabilities under the Act under one and possibly two policies with Vanguard Insurance Company Limited, now World Marine and General Insurance Limited. Section 6 (14C) of the Act provided so far as relevant: A person engaged for fee or reward to take part — (al) as a boxer, wrestler or referee in any boxing or wrestling contest in or upon the premises of a club registered under the Registered Clubs Act 1976 or Part IIIA of the Gaming and Betting Act 1912; shall be deemed to be a worker employed by the person conducting or holding such contest ... '. JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 18:17:43 2008 /reports/caseml]/case/urj/9607794 UNREPORTED JUDGMENTS This section has been the subject of consideration by this Court in Taren Point Bowling and Recreation Club Limited v Shapter [1982] NSWLR 219 (Taren Point) and State Compensation Board (NSW) v Anastassiadis (1986) 2 NSW CCR 1 (Anastassiadis). The appellants sought contribution from the Club or its insurer in respect of the compensation payments made to the injured boxer. The proceedings were heard by Windeyer J and dismissed. In this Court Mr Neil QC, for the appellants, accepted that co-ordinate liability of the Club and the firm to the injured boxer under s 6 (14C) (al) was fundamental to the appeal. Unless the appellants succeed in establishing the existence of such co-ordinate liability, the appeal must fail. Mr Neil did not question the liability of the firm. Indeed its liability was an essential foundation for the claim for contribution. However in his submission the fact that the firm was liable did not prevent the Club from also being liable as one of the parties conducting or holding the contest. The facts have been helpfully summarised in Mr Lloyd QC's written submissions for the first respondent. The firm arranged the contest and organised it in the sense of providing the participants and the other persons who would be involved. The gross receipts from the sale of tickets were retained by the firm who were entitled to any profits. The promoters obtained the tickets, determined the price, and received the entire proceeds of ticket sales. They arranged advertising in the general media and organised the contest in the sense of arranging and setting up the boxing ring, provided the lighting for the ring, hired the fighters, referee, judges, timekeeper, cardkeeper, announcer, and seconds and arranged for the presence of police. They applied for and obtained the necessary permits from the Police Department and the Department of Sport and Recreation. They had their own workers" compensation policy and met all the expenses. The involvement of the Club included providing the venue for the contest which was held in its premises. It controlled the admission of spectators who were limited to members and guests as required by law. It sold tickets provided by the promoter, both in advance and on the night, but accounted for the proceeds. It provided a public address system, general lighting and seating, and displayed a poster provided by the promoter on its notice board. It provided change rooms and associated facilities for the boxers. Its waiters served drinks to officials and media representatives but the firm reimbursed the Club for the cost. The Club issued numbered tickets in conjunction with the tickets provided by the promoter to ensure that onlymembers and guests attended. A banner was erected on the Club roof which was visible from the railway line to advertise the event. It advertised the event in its journal using copy provided by the promoter. It provided the spotlight used to dramatise the arrival of the boxers. It controlled the general lighting in the auditorium but not the special lighting for the ring. Two of its employees acted as doormen with Mrs Meyers supervising the collection of tickets. URJ GIO GENERAL LIMITED v BLACKTOWN RSL CLUB LIMITED (Handley JA) 3 (a) (b) (c) On these facts Mr Neil submitted that the Club was liable, as well as the firm, to the injured boxer. His first submission was that Taren Point was wrongly decided and should not be followed. The Court declined to allow that question to be reopened, particularly in view of the decision in Anastassiadis. Mr Neil's principal submission was that the decision in Taren Point was distinguishable. In that case, this Court noted that Parliament had not provided in s 6 (14C) (al) that a Club should, in every case, be deemed the employer of the participants in sporting contests of this nature held on its premises. Since Parliament had not so provided but had fastened liability on the persons conducting or holding such contests, the mere use of club premises as the venue for such a contest, and the exercise of its ordinary responsibilities and functions as a registered club, cannot without more, deem it to be the employer of the contestants. In Taren Point, Hutley JA said, at 221-2: ... to hold a licensed club liable for injuries suffered by a wrestler in a contest on the premises under this provision, it is necessary to find that the club was performing an active role as organiser or promoter of the contest. A licensed club may be an organiser or promoter of a contest, but this involves it doingthings additional to the mere conduct of the club and the observance of the general legal burdens thrown upon it. ... the licensed club did the following things: It gave permission for the contest to take place; It laid down the conditions under which any person could attend the wrestling contest. ... the club as owner of the premises and with duties to perform under the laws relating to clubs had the power to exclude persons not qualified to be on the club premises from getting to the part of the premises set aside for the contest; It provided the audience, in the sense that the only persons entitled to be on the premises would be members of the audience. ... it had permitted the exhibition of posters ... in connection with the contest and persons attending the contest enjoyed the benefit of the licensed club's facilities ... Also, the staff of the licensed club were available to control the behaviour of those participating and the audience ... I am of the opinion that neither the findings of the Commission nor the additional facts found in the evidence, ... provide any evidence that the licensed club was holding or conducting the wrestling contest. The evidence only permitted the inference that it provided the venue of the contest and the opportunity for others to recruit the audience. This is not evidence of either holding or conducting the wrestling contest ... *. In my judgment, the decision in Taren Point is substantially in point in the present case. It cannot be distinguished as a decision on its own facts because this Court held that the evidence and findings could not in law support an award against the Club. Mr Neil also relied upon the decision in Anastassiadis. In that case this Court held that the evidence was such as to support in law a finding either way, the decision in the particular case being one of fact. The facts in Anastassiadis are distinguishable from the facts of the present case. The various matters referred to by Kirby P at pp 5-6 demonstrate that that club took an active and promotional role in JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:17:43 2008 /reports/caseml]/case/urj/9607794 UNREPORTED JUDGMENTS relation tothe contest. Admission to the contest was free, and the club paid the promoter for his services in organising and holding the contest. The decision that there was evidence that would have supported an award against the club is perfectly understandable but there is no equivalent evidence in the present case. In my opinion, the appellant obtains no support from the decision in Anastassiadis. The findings of Windeyer J on the facts of this case were as follows: It is of course a question of fact as to whether the club was holding the contest. There was no doubt Meyers was conducting it and holding it. I have concluded that the club was not holding the contest but allowing it to be held in its premises. It provided certain support by way of seating, lighting and ticket sales; but it took no part of the proceeds of the contest, took no part in organising it, and obtained no authorities for it to be held. Auxiliary support for a contest organiser need not make the supporter a holder of the contest. Mr Neil's final submission involved invoked the view of the man on the Blacktown bus. He submitted that the members of the Club and their guests would think that the Club was holding the contest because it was being held in the Club premises and with the permission of the Club. In my judgment the uninstructed view of members of the Club and their guests as to the identity of the holder of the contest is not the relevant test. The section is concerned not with appearances but with realities. The realities have been found by Windeyer J and they demonstrate that the statutory test was not satisfied in this case. In view of Mr Neil's proper concession that success on this question was fundamental to the appeal, I conclude for the reasons given that the appeal fails and should be dismissed with costs. Sheller JA. I agree. Santow AJA. I agree. Handley JA. The order of the Court therefore is the appeal dismissed with costs. Orders accordingly. Counsel for the appellant: M J Neil QC/A J Candy Solicitors for the appellant: Hunt and Hunt Counsel for the respondent 1: D H Lloyd QC/S B Benson Solicitors for the respondent 1: Piggott Stinson Stuart Thom Counsel for the respondent 2: A R Ashburner Solicitors for the respondent 2: Pieterse and Pieterse