Case: Teen Ranch Pty Ltd v Brown (1995) 87 IR 308
Outcome: referred to
CAO next addressed the relevance of control to the establishment of a contractual relationship and submitted to the negative of any proposition to that effect. I was referred to Swift Placements at [31], where the following appears: 'Here, of course, Mr Terkes operated the machined owned by Mr Warman and at its premises, but, unless Warman engaged him to do work for it on certain terms then the fact it may have had a degree of control over such work would count for little other than as providing some evidence that it may have employed him.' A further exemplification of judicial discussion of the significance of control to the existence or otherwise of a contract of service in favour of a worker may be found in Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 where the New South Wales Court of Appeal (Handley JA, with whose reasons Mahoney and Powell JJA agreed) withheld from finding that a binding legal relationship of employer and employee was established in relation to an injured volunteer worker at a religious camp, in circumstances, where that person's volunteer work at the camp fell within the description of '[f] amily, social and domestic arrangements' (at 310); accordingly that injured person was held not to qualify for workers compensation, as an employee the subject of a contract of employment. 159 CAO drew attention to the purported characterisation of the so-called triangular arrangement appearing at [52]-[53] of the reasons of Mummery LJ. I have already extracted earlier (at [85] in these reasons) much of what appears in [53]; in [51] his Lordship referred to the legitimacy of having regard to ' the fact, if it be the case, that a series or a number of transactions are intended to operate in combination with one another or are ingredients of a wider transaction intended as a whole'. That approach does not sit readily with the approach taken in the Australian authorities in relation to circumstances involving labour hire operators (such as in Forstaff). CAO's contentions were in summary to the effect that the analysis of Mummery LJ (and implicitly therefore also of Sedley LJ) fell 'rather short', in that the first issue normally required to be resolved in labour hire cases, such as Brook Street , is simply whether there existed a contract at all between the worker and the client of the labour hire agency, or else between the worker and the labour hire agency. I was referred to Ermogenous and Teen Ranch , both of which involved an issue as to whether the parties mutually intended to enter into a contractual relationship, the element of intention in that regard being paramount. The respective factual circumstances in those United Kingdom and Australian cases were some distance removed from the industrial context of the relationships involved in the present proceedings. 169 I would next move to a consideration of the detailed attention afforded by the parties to Cable &amp; Wireless , which I have earlier foreshadowed that I would do more extensively in the context of my recitation of CAO's submissions than did the applicants, CAO having given perhaps more extensive attention to Cable &amp; Wireless . That case was decided by the United Kingdom Court of Appeal subsequently of course to Brook Street by a different bench being Sir Anthony Clarke MR and Smith and Kay LJJ. The joint judgment of their Lordships at [35] expressed the opinion that '... the view of the majority in Dacas was correct'. It was submitted by CAO nevertheless that the decision in Cable &amp; Wireless was 'not compelling', in that the United Kingdom Court of Appeal once more did not address 'the fundamental problem of intention to create legal relations as a threshold question', or more precisely, to create a contractual relationship. In that latter regard, it was submitted by CAO that the Court of Appeal's reasoning in Cable &amp; Wireless was 'out of step with the law in Australia', exemplifying in that regard Ermogenous and Teen Ranch , and in any event, that the decision in Cable &amp; Wireless was of little relevance to the present case because of what was described as its vastly different factual circumstances.