Avon Products Pty Ltd v Falls - [2010] ACTCA 21

AVON PRODUCTS PTY LTD v MAGRIT FALLS [2010] ACTCA 21 (31 August 2010)

APPEAL – application for leave to appeal – application to be heard concurrently with appeal – appeal from determination by the Magistrates Court of the “State or Territory of connection” in a workers compensation claim – whether ACT is the Territory or State connected to the respondent’s employment – where a worker is required to work does not determine where the worker usually works – leave to appeal granted – appeal allowed.

WORKERS COMPENSATION – determination of “State or Territory of connection” – application of tests in s 36B(3) Workers Compensation Act 1951 (ACT) – whether respondent “usually works” in the ACT – respondent usually works in the ACT and NSW – whether the respondent is “usually based” for the purposes of employment in the ACT – respondent has no “usual base” – “State or Territory of connection” to be identified by location of employer’s principal place of business.

CDT v VAJ (1998) 197 CLR 172

Workers Compensation Act 1951 (ACT), Pt 4.2A, ss 36A, 36B, 36C, 36D, 36E
Workers Compensation Act 1987 (NSW), ss 9AA, 9AB
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 74

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 31 of 2009
No. SC 26 of 2009

Judges: Gray P, Penfold and Marshall JJ
Court of Appeal of the Australian Capital Territory

Date: 31 August 2010

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 of 2009
  )          No. SC 26 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )
COURT OF APPEAL  )

BETWEEN:AVON PRODUCTS PTY LTD
Applicant

AND:MAGRIT FALLS
Respondent

ORDER

Judges:  Gray P, Penfold and Marshall JJ
Date:  31 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

1.Leave to appeal is granted.
2.The appeal is allowed.
3.The order of the Supreme Court made on 19 October 2009 is set aside.
4.The order of the Magistrates Court made on 11 February 2009 is set aside and in substitution for that order it is ordered that:
“New South Wales was the State of connection for the employment of Ms Falls by Avon Products Pty Ltd for the purposes of her claim for workers compensation made in her application for arbitration dated 20 August 2008”.
5.There is no order as to the costs of the appeal or the proceeding before the Supreme Court.

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 of 2009
  )          No. SC 26 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )
COURT OF APPEAL  )

BETWEEN:AVON PRODUCTS PTY LTD
Applicant

AND:MAGRIT FALLS
Respondent

Judges:  Gray P, Penfold and Marshall JJ
Date:  31 August 2010
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

The applicant, Avon Products Pty Ltd (Avon) applies for leave to appeal from a judgment of the Chief Justice dismissing its appeal from a decision of Special Magistrate Cush.
On 18 November 2009, Gray P ordered that the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] ACTCA 21
Decision Date: 31 August 2010

CaseChat Overview and Summary

Avon Products Pty Ltd appealed to the Supreme Court of the Australian Capital Territory against a determination by the Magistrates Court concerning the "State or Territory of connection" for a workers compensation claim brought by Ms Falls. The central dispute revolved around whether the Australian Capital Territory (ACT) or New South Wales (NSW) was the relevant jurisdiction for Ms Falls' employment in relation to her workers compensation claim.

The primary legal issues before the Supreme Court were whether the Magistrates Court had correctly applied the tests set out in section 36B(3) of the *Workers Compensation Act 1951* (ACT) to determine the "State or Territory of connection". Specifically, the court had to consider whether Ms Falls "usually worked" in the ACT, whether she was "usually based" for the purposes of her employment in the ACT, and if neither of those applied, how the "State or Territory of connection" should be identified.

The Supreme Court reasoned that the location where a worker is required to perform their duties does not solely determine where they "usually work". It found that Ms Falls usually worked in both the ACT and NSW, and importantly, had no "usual base" for her employment. Consequently, the court determined that the "State or Territory of connection" should be identified by the location of the employer's principal place of business. Applying this principle, the Supreme Court concluded that NSW was the State of connection for Ms Falls' employment.

Accordingly, leave to appeal was granted, and the appeal was allowed. The orders of the Supreme Court and the Magistrates Court were set aside. In substitution, the Supreme Court ordered that New South Wales was the State of connection for Ms Falls' employment with Avon Products Pty Ltd for the purposes of her workers compensation claim. There were no orders as to the costs of the appeal or the prior proceedings in the Supreme Court.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The order of the Supreme Court made on 19 October 2009 is set aside.

4. The order of the Magistrates Court made on 11 February 2009 is set aside and in substitution for that order it is ordered that: “ New South Wales was the State of connection for the employment of Ms Falls by Avon Products Pty Ltd for the purposes of her claim for workers compensation made in her application for arbitration dated 20 August 2008”.

5. There is no order as to the costs of the appeal or the proceeding before the Supreme Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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