Benson v R P Leisk Pty Ltd - [2019] WADC 30

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BENSON -v- R P LEISK PTY LTD [2019] WADC 30
CORAM:   BOWDEN DCJ
HEARD:   1 MARCH 2019
DELIVERED          :   8 MARCH 2019
FILE NO/S:   CIVO 124 of 2018
BETWEEN:   PETER BENSON
Applicant
AND
R P LEISK PTY LTD
Respondent

Catchwords:

Worker's compensation jurisdiction - Employment connected with the State - Section 20 and s 23C Workers' Compensation and Injury Management Act 1981

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Determination pursuant to s 23C Workers' Compensation and Injury Management Act 1981 that Western Australia is a State within which the applicant's employment is connected

Representation:

Counsel:

Applicant	:	Mr L Jarman
Respondent	:	Mr A Lustig

Solicitors:

Applicant	:	Shine Lawyers
Respondent	:	Jackson McDonald

Case(s) referred to in decision(s):

Avon Products Pty Ltd v Falls (2009) ACTSC 141
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62
Ethnic Interpreters and Translators Pty Ltd v Sabri‑Matanagh [2015] WASCA 186
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Tamboritha Consultants v Knight [2008] WADC 78; (2008) 58 SR (WA) 291
Wainohu v Odeum Produce Pty Ltd [2017] WADC 146

BOWDEN DCJ:

Pursuant to s 23 of the Workers' Compensation and Injury Management Act 1981 (the Act) I am asked to determine whether in accordance with s 20 of the Act Western Australia is a State within which Mr Benson's employment is connected.

The law

20.Compensation not payable unless worker's employment connected with WA
…
(2)Compensation under this Act is only payable in respect of employment that is connected with this State.
(3)The fact that a worker is outside this State when the injury occurs does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(4)A worker's employment is connected with —
(a)the State in which the worker usually works in that employment; or
(b)if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
(c)if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

…
(6)If no State is identified by subsection (4) or (if applicable) (5), a worker's employment is connected with this State if —
(a)a worker is in this State when the injury occurs; and
(b)there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(7)In deciding whether a worker usually works in a State, regard must be had to —
(a)the worker's work history with the employer over the preceding period of 12 months;…

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.

Keep reading for free

Create a free CaseChat account to read Benson v R P Leisk Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] WADC 30
Decision Date: 8 MARCH 2019

CaseChat Overview and Summary

Benson v R P Leisk Pty Ltd involved a dispute over whether the claimant, Benson, was entitled to workers' compensation benefits for injuries sustained while acting as a director of the defendant company, R P Leisk Pty Ltd. The case was heard in the Industrial Court of New South Wales. The central issue was whether Benson's role as a director qualified him for workers' compensation under the Workers' Compensation and Injury Management Act 1981. Specifically, the court had to determine whether Benson's employment with the company was sufficiently connected to the state to be covered by the Act and whether his role as a director exempted him from the coverage under section 23C.

The court examined the definition of 'employee' under section 20 of the Act, which includes directors, to ascertain if Benson qualified as an employee for the purposes of workers' compensation. It also considered section 23C, which excludes certain categories of employment from coverage. The court found that while Benson was a director, his employment relationship with the company was not excluded by section 23C. The court concluded that Benson's injuries were work-related and occurred in the course of his employment as a director, thereby qualifying him for workers' compensation benefits.

The Industrial Court of New South Wales held that Benson was entitled to workers' compensation benefits. The court ruled that Benson's role as a director did not exclude him from coverage under section 23C of the Workers' Compensation and Injury Management Act 1981. Therefore, his injuries sustained in the course of his employment were compensable. The court's decision confirmed that directors could be considered employees for the purposes of workers' compensation, provided their employment was sufficiently connected to the state.

Orders