CHOICE OF LAW – Worker normally based in Victoria injured in Western Australia while on temporary assignment in that State – Determination made under s 91A of Accident Compensation Act 1985 that worker’s employment connected with Victoria – Proceeding commenced in Victoria by worker four years after the injury against Victorian-based employer and two Western Australian non-employers who had no connection with Victoria — Substantive law of Victoria relevantly includes six year limitation period whereas substantive law of Western Australia relevantly includes three year limitation period – Substantive law of Victoria applies to claim against employer – Whether substantive law of Victoria or that of Western Australia applies to claims against non-employers – Substantive law of Western Australia applies if common law choice of law rules applicable.
STATUTORY INTERPRETATION — Scope of modifications to common law choice of law rules effected by s 129MB of Accident Compensation Act 1985 and s 93AB of Workers’ Compensation and Injury Management Act 1981 (WA) — Fact that claim against employer is governed by the statutory modifications to common law choice of law rules does not mean that those modifications also apply to claims against non-employers — Accident Compensation Act 1985 ss 80, 91A, 91C, 129MA, 129MB, 129ME — Workers’ Compensation and Injury Management Act 1981 (WA) ss 20, 23B, 23D, 93AA, 93AB, 93AE – Application for leave to appeal granted and appeal dismissed.
STATUTORY INTERPRETATION — Principles of statutory interpretation — Primacy of the text of statute — Purposive approach — Extrinsic material — Circumstances in which court can reject an interpretation of a statutory provision which is said to create inconvenience and difficulties — Circumstances in which the word ‘and’ is capable of having a disjunctive meaning.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr T J Casey QC with Mr B G Anderson
Shine Lawyers
For the First Respondent
Mr M F Wheelahan QC with Mr R Kumar
Wisewould Mahony
For the Second Respondent
Mr J Ruskin QC with Mr J C Simpson
K & L Gates
For the Third Respondent
Mr N Y Rattray
Moray & Agnew Lawyers
OSBORN JA
KYROU JA:
Introduction and summary
On 11 August 2009, the applicant fell and was seriously injured on a construction site in Perth. He was then employed by the first respondent, Salta Constructions Pty Ltd (‘Salta’), a construction company based in Melbourne, and was working temporarily in Perth in the course of his employment with Salta. According to the applicant, the accident occurred when,…
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
AGLC
Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230
Case
[2015] VSCA 230
Decision Date
CaseChat Overview and Summary
Di Paolo v Salta Constructions Pty Ltd involved a worker who was normally based in Victoria but was injured in Western Australia while on a temporary assignment there. The dispute was resolved by the Supreme Court of Victoria, which was asked to determine the applicable law for the claims against both the employer and two non-employers. The worker filed a lawsuit in Victoria four years after the injury against the employer and two non-employers, none of whom had any ties to Victoria. The primary legal issues were whether the substantive law of Victoria or Western Australia should apply to the claims against the employer and non-employers, respectively. The court examined the differences in limitation periods under the respective laws and the implications of statutory modifications to common law choice of law rules.
The court found that the statutory modifications to common law choice of law rules, as provided by s 129MB of the Accident Compensation Act 1985 and s 93AB of the Workers’ Compensation and Injury Management Act 1981 (WA), applied to the claim against the employer. However, these modifications did not extend to the claims against the non-employers. The court emphasised the importance of the text of the statute and took a purposive approach in interpreting the statutory provisions. The court also considered the circumstances in which it could reject an interpretation that would create inconvenience and difficulties, and examined the potential disjunctive meaning of the word 'and'. The court concluded that the substantive law of Victoria applied to the claim against the employer, while the substantive law of Western Australia applied to the claims against the non-employers.
The court granted leave to appeal but dismissed the appeal, leaving the decision of the lower court intact. The final orders affirmed that the substantive law of Victoria applied to the claim against the employer, and the substantive law of Western Australia applied to the claims against the non-employers. This outcome reflected the court's interpretation of the statutory provisions and the common law choice of law rules, and highlighted the importance of statutory interpretation in determining the applicable law in complex cases involving multiple jurisdictions.