Di Paolo v Salta Constructions Pty Ltd

Case [2015] VSCA 230


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0019

MASSIMO DI PAOLO Applicant
v
SALTA CONSTRUCTIONS PTY LTD First Respondent
SAFE LABOUR HIRE PTY LTD Second Respondent
GCS RAPID ACCESS PTY LTD Third Respondent

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JUDGES: OSBORN and KYROU JJA and GARDE AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 4 August 2015
DATE OF JUDGMENT: 4 September 2015     First revision: 4 September 2015
MEDIUM NEUTRAL CITATION: [2015] VSCA 230
JUDGMENT APPEALED FROM: Di Paolo v Salta Constructions Pty Ltd [2015] VSC 31 (Ginnane J)

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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

  1. 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,…

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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.

Orders

Orders of the court

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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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