Di Paolo v Salta Constructions Pty Ltd
[2015] VSC 31
•12 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2013 4005
| MASSIMO DI PAOLO | Plaintiff |
| v | |
| SALTA CONSTRUCTIONS PTY LTD | First Defendant |
| and | |
| SAFE LABOUR HIRE PTY LTD | Second Defendant |
| and | |
| GCS RAPID ACCESS PTY LTD | Third Defendant |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 September 2014 |
DATE OF JUDGMENT: | 12 February 2015 |
CASE MAY BE CITED AS: | Di Paolo v Salta Constructions Pty Ltd and Ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 31 |
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CHOICE OF LAW – Worker injured in Western Australia – Victoria was the worker’s home State – Worker sued employer and non-employers in Victoria – Applicable limitation period – Questions for determination on agreed or assumed facts – Uniform cross-border compensation legislation – Accident Compensation Act 1985 (Vic) ss 80, 129MA, 129MB – Workers’ Compensation and Injury Management Act 1981 (WA) ss 20, 93AA, 93AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Casey QC and Mr B G Anderson | Shine Lawyers |
| For the First Defendant | Mr M F Wheelahan QC with Mr R Kumar | Wisewould Mahony |
| For the Second Defendant | Mr J Ruskin QC and Mr J C Simpson | K&L Gates |
| For the Third Defendant | Mr N Y Rattray | Moray & Agnew |
HIS HONOUR:
The plaintiff, Mr Massimo Di Paolo, has sued the three defendants for injuries sustained in a workplace in Perth, Western Australia. Mr Di Paolo was, and is, a resident of the State of Victoria, and was working in Perth on secondment at the time of the accident. The issues for present decision concern the effect of national uniform legislation for coverage of workers operating temporarily in another jurisdiction. The questions to be answered concern whether the limitation period fixed by Victorian legislation or that fixed by Western Australian legislation applies to Mr Di Paolo’s claims against the second and third defendants.
Mr Di Paolo’s case is that on 11 August 2009, in the course of his employment with the first defendant, Salta Constructions Pty Ltd (‘Salta’), he was working on a construction site in Perth. He was on a flight of aluminium access stairs which dislodged from the scaffolding to which they were attached and collapsed beneath him. As a result, he fell approximately 8.5 metres to the ground and suffered severe injuries, including spinal and closed head injuries.
Mr Di Paolo’s claims are brought in negligence and for breach of statutory duty against each defendant and for breach of contract against the first defendant. He alleges that the access stairs and scaffolding were supplied by the third defendant, GCS Rapid Access Pty Ltd (‘GCS’), and erected by the second defendant, Safe Labour Hire Pty Ltd (‘Safe Labour Hire’), pursuant to the terms of contracts in writing between the defendants. Salta is a corporation registered in Victoria with its head office in Melbourne. Safe Labour Hire and GCS are corporations registered in Western Australia, where they have their head offices.
Mr Di Paolo contends that the law of Victoria governs his proceeding. Safe Labour Hire and GCS contend that the substantive law governing Mr Di Paolo’s claim for damages, including applicable limitation periods, is the law of Western Australia and not the law of Victoria.
The issue is: are Mr Di Paolo’s claims governed by the limitation period applicable in Victoria, which is six years, or the limitation period in Western Australia, which is three years.
Following the applications made by the plaintiff concerning the second and third defendants’ pleadings and by those defendants to dismiss the proceedings because they were statute barred, ultimately two questions were agreed for the Court to decide. The questions are in the following terms:
A.Is the Plaintiff’s claim for damages in respect of injury against the Second Defendant and Third Defendant governed by the substantive law (including applicable limitation periods) of-
(a) the State of Western Australia?
(b) the State of Victoria?
B.If the answer to Question A is Yes, does the substantive law of Western Australia (including applicable limitation periods) apply to the Plaintiff’s claim for damages against the Second Defendant and Third Defendant:
(a)unmodified by Division 1a of Part IV of the Workers’ Compensation and Injury Management Act 1981 (WA) such that the common law choice of law rules apply without statutory restriction to the Plaintiff’s claim?; or
(b)as modified by Division 1a such that these common law rules are restricted from applying to the Plaintiff’s claim?[1]
[1]The questions were referred for determination pursuant to r 47.04. This occurred pursuant to orders of an Associate Justice made on 29 May 2014 and 20 June 2014 and by my order of 16 September 2014.
I will refer to the Accident Compensation Act 1985 (Vic) as the Victorian Act and the Workers’ Compensation and Injury Management Act 1981 (WA) as the Western Australian Act.
For the reasons that follow, I find that the answers to the first question, question A, are ‘Yes’ and ‘No’ respectively, as the plaintiff’s claims against the second defendant and third defendant are governed by the substantive law (including applicable limitation periods) of the common law of Western Australia.
I find that the answers to the second question, question B, are ‘Yes’ and ‘No’, as the Western Australian Act does not apply and the substantive common law of Western Australia therefore applies, unmodified, in relation to Mr Di Paolo’s claims against the second and third defendants.
Agreed and Assumed Facts
The plaintiff and the second and third defendants agreed, or asked the Court to assume, the following facts.[2]
[2]The facts in paragraph 6 are to be assumed. The plaintiff on the one hand and the second defendant on the other prepared statements of agreed facts. There were minor differences between them and there was some discussion about which version the Court should adopt. I have adopted the plaintiff’s statement. The second defendant’s statement of agreed and assumed facts did not contain paragraph 15, contained a different form of paragraph 19 containing contentions of when the plaintiff’s cause of action against the second and third defendants accrued, and contained a final paragraph contending that the plaintiff’s proceeding as against the second and third defendants was filed outside the statutory limitation period under the Limitation Act 2005 (WA).
1.On 11 August 2009 the plaintiff suffered injury (the injury), including head and spinal injury, as a result of an industrial accident (the accident) that occurred on a construction site at 226 Adelaide Terrace, Perth in the State of Western Australia.
2.The plaintiff alleges that the accident occurred when a flight of aluminium access stairs dislodged from modular scaffolding and collapsed beneath the plaintiff causing him to fall to the ground below.
3.The first defendant is and was at all relevant times a corporation with its registered office in the State of Victoria. At all relevant times the first defendant operated a construction business with its head office in Port Melbourne. At the time of his injury, the plaintiff was employed by the first defendant, and was acting in the course of his employment.
4.The second defendant is and was at all relevant times a corporation with its registered office in the State of Western Australia. The plaintiff alleges that the second defendant erected the modular scaffold and aluminium stairs at the construction site.
5.The third defendant is and was at all relevant times a corporation with its registered office in the State of Western Australia. The plaintiff alleges that the third defendant supplied the modular scaffold and aluminium stairs to the construction site.
6.The plaintiff alleges that the injury was caused by the negligence of the defendants. On the assumption that the plaintiff’s injury was caused by the negligence of the second and third defendants, it is to be assumed in the case of each of them that the place of the wrong was within the State of Western Australia.
7.Following the accident, on or about 24 August 2009, the plaintiff made a written claim for compensation against the first defendant pursuant to s 179(1)(b) of the Workers’ Compensation and Injury Management Act 1981 (WA) (the WA Act).
8.QBE Insurance (Australia) Ltd (QBE) was at all relevant times the insurer of the first defendant with respect to liability for claims made under the WA Act.
9.On 17 September 2009, QBE gave notice to the plaintiff under s 57A(3)(a) of the WA Act that liability was accepted for weekly payments and medical expenses in respect of the injury. Thereafter, the first defendant, either itself or by its insurer QBE, commenced to pay compensation to the plaintiff pursuant to the WA Act.
10.On or about 3 December 2009 the plaintiff, by his solicitors, made a written claim against the first defendant in respect of the injury pursuant to the AccidentCompensation Act 1985 (Vic).
11.CGU Worker’s Compensation (Victoria) (CGU) is and was at all relevant times the authorised agent of the Victorian WorkCover Authority and the first defendant’s claims manager with respect to claims made under the AccidentCompensation Act.
12.By a writ filed in County Court proceeding no. CI-09-05826 on 4 December 2009, the plaintiff sought a determination pursuant to s 91A of the Accident Compensation Act that at the time of the accident the plaintiff’s employment was connected with the State of Victoria in accordance with s 80 of the Accident Compensation Act.
13.By letter dated 29 December 2009 CGU initially rejected the plaintiff’s claim for compensation. However subsequently, by letter dated 5 January 2010, CGU accepted liability under the Accident Compensation Act in respect of the injury conditional upon the plaintiff ceasing to receive compensation under the Western Australian claim.
14.The first defendant by its insurer QBE ceased to pay compensation to or on behalf of the plaintiff under the WA Act in respect of the Western Australian claim effective from midnight on 14 January 2010, and the first defendant by its insurer CGU commenced to pay compensation to or on behalf of the plaintiff under the Accident Compensation Act in respect of the period commencing 12.01am on 15 January 2010.
15.Upon acceptance of liability by CGU, QBE sought reimbursement of the compensation which it had paid to the Plaintiff and medical and like expenses paid on his behalf. As at 19 May 2014 QBE had received $7,230.36 of $12,205.60 by way of partial recovery from CGU.[3]
16.On 16 September 2010, the County Court, constituted by His Honour Judge Bowman, ordered in proceeding No. CI-09-05826 that, ‘by consent there is a determination that the plaintiff’s employment is connected with the State of Victoria in accordance with section 80 of the Accident Compensation Act’.
17.On or about 5 November 2012, the plaintiff served upon the first defendant an application under s 134AB(4) of the Accident Compensation Act to commence a proceeding for the recovery of damages.
18.On or about 7 March 2013, the plaintiff was advised by the Victorian WorkCover Authority, pursuant to section 134AB(7)(a) of the Accident Compensation Act, that he was deemed to have a serious injury, thereby entitling him to commence a proceeding for the recovery of damages.
19.By a Writ with Statement of Claim indorsed filed on 5 August 2013, the plaintiff commenced an action for damages against the employer first defendant and non-employer second and third defendants.
[3]This paragraph was only contained in the plaintiff’s statement of agreed and assumed facts.
I have decided the application on the assumption that the proceeding was filed as against the second and third defendants outside the three year period provided under s 14(1) of the Limitation Act 2005 (WA), which provides that:
An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued.
It is unnecessary for me to make any finding about the accuracy of that assumption. The first defendant did not agree that it should be taken to be accurate.[4]
[4]See discussion at Transcript of Proceedings, Di Paolo v Salta Constructions (Supreme Court of Victoria, S CI 2013 4005, Ginnane J, 16 September 2014) 1–2, 44–8.
The statutory context
Where a question of whether the State of Victoria is connected with a worker’s employment arises in proceedings in a court in relation to a claim for compensation under the Victorian Act, s 91A requires the court hearing the matter to determine the State with which the worker’s employment is connected. That determination is made in accordance with s 80 and the court must cause that determination to be entered in the records of the court.[5] Section 80 limits entitlement to compensation under the Act to employment connected with Victoria. It states:
[5]As to the operation of s 80, see Wadley v Ron Finemore Bulk Haulage Pty Ltd [2013] VSC 5 (J Forrest J) and Wadley v Ron Finemore Bulk Haulage Pty Ltd (Ruling) [2013] VSC 102 (Williams J).
80Entitlement to compensation only if employment connected with Victoria
(1)There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.
(2)The fact that a worker is outside this State when the injury happens does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.
(3)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.
The Western Australian legislation contains a similar provision.
As is stated in the agreed or assumed facts, on 16 September 2010 in the County Court of Victoria, his Honour Judge Bowman ordered by consent that there be a determination that the plaintiff’s employment is connected with the State of Victoria in accordance with s 80 of the Victorian Act.
The parties accepted that Safe Labour Hire and GCS were not Mr Di Paolo’s employers and were therefore each to be described as ‘a person other than a worker’s employer’: s 129MB(2) of the Victorian Act and s 93AB(2) of the Western Australian Act.
The Victorian Act and the Western Australian Act contain almost identically expressed choice of law provisions concerning the applicable substantive law for work injury claims. However, it is appropriate to set out the relevant provisions of the two Acts, contained in the divisions dealing with choice of law.
Victorian Act
Sections 129MA and 129MB of the Victorian Act provide:
129MA The applicable substantive law for work injury claims
(1)If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs —
(a)whether or not a claim for damages in respect of the injury can be made; and
(b) if it can be made, the determination of the claim.
(2)This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.
(3)For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it—
(a)would have been payable but for a provision of the scheme that excludes the worker’s right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or
(b)would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.
(4)A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.
(5) In this Division—
State includes Territory.
129MB Claims to which Division applies
(1)This Division applies only to a claim for damages or recovery of contribution brought against a worker’s employer in respect of an injury that was caused by—
(a)the negligence or other tort (including breach of statutory duty) of the worker’s employer; or
(b)a breach of contract by the worker’s employer.
(2)This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker’s employer in respect of an injury if —
(a)the worker’s employment is connected with Victoria; and
(b)the negligence or other tort or the breach of contract on which the claim is founded occurred in Victoria.
(3)Subsections (1)(a) and (2) apply even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.
(4)A reference in this Division to a worker’s employer includes a reference to—
(a)a person who is vicariously liable for the acts of the employer; and
(b)a person for whose acts the employer is vicariously liable.
Western Australian Act
Sections 93AA and 93AB of the Western Australian Act provide:
93AA. Applicable substantive law for work injury claims
(1)If there is an entitlement to compensation under the statutory workers’ compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs —
(a)whether or not a claim for damages in respect of the injury can be made; and
(b)if it can be made, the determination of the claim.
(2)This Division does not apply if compensation is payable in respect of the injury under the statutory workers’ compensation scheme of more than one State.
(3)For the purposes of this section, compensation is considered to be payable under a statutory workers’ compensation scheme of a State in respect of an injury if compensation in respect of it —
(a)would have been payable but for a provision of the scheme that excludes the worker’s right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or
(b)would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.
(4)A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.
93AB. Claims to which Division applies
(1)This Division applies to a claim for damages or recovery of contribution brought against a worker’s employer in respect of an injury that was caused by —
(a)the negligence or other tort (including breach of statutory duty) of the worker’s employer; or
(b)a breach of contract by the worker’s employer.
(2)This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker’s employer in respect of an injury if —
(a)the worker’s employment is connected with this State; and
(b)the negligence or other tort or the breach of contract on which the claim is founded occurred in this State.
(3)Subsection (1)(a) and subsection (2) apply even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.
(4)A reference in this Division to a worker’s employer includes a reference to —
(a)a person who is vicariously liable for the acts of the employer; and
(b)a person for whose acts the employer is vicariously liable.
The uniform legislation, of which the provisions of the Victorian and Western Australian Acts form part, followed the Heads of Workers’ Compensation Authorities endorsing national principles in July 2003. Those national principles were contained in uniform legislation which was inserted into State Acts by amending legislation. The purpose of the amendments to the Victorian Act included:
(vi)to provide that compensation is only payable under that Act in respect of employment connected with Victoria; and
(vii)to make provision as to the substantive law governing claims for damages in respect of injuries to workers; …[6]
[6]Accident Compensation and Transport Accident Acts (Amendment) Act 2003 s 1(a).
The Explanatory Memorandum of the Western Australian legislation introducing the uniform legislation into the Western Australian Act states that its objectives were:
1. INTRODUCTION
Employers are often required to obtain workers’ compensation coverage for an individual worker in more than one State or Territory, even if these workers are working only temporarily in another jurisdiction. The key objectives of the amendments to the Workers’ Compensation and Rehabilitation Act, 1981 (the Act) introduced by this Bill are to:
(a)Eliminate the need for employers to obtain workers’ compensation coverage for a worker in more than one jurisdiction and ensure each worker is connected to one jurisdiction.
(b)Ensure workers’ working temporarily in another jurisdiction only have access to the workers’ compensation entitlements and common law provisions in their home State or Territory, or ‘State of connection’, which is the term used in the Bill.
(c)Provide greater certainty for injured workers as to the State or Territory in which to make a workers’ compensation claim and what the associated entitlements are.
(d)Allow employers to determine in which jurisdiction to insure each of their workers, before the worker commences work.
(e)Allow a court to determine the ‘State of connection’ and have that determination recognised by other courts in other jurisdictions, so only one determination is made.[7]
[7]Explanatory Memorandum, Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA) 1.
The plaintiff placed particular reliance on statements in the Western Australian Explanatory Memorandum and I will set out some of its terms:
2. Background
National principles were endorsed by the Heads of Workers’ Compensation Authorities (HWCA) in July 2003, which cleared the way for Western Australia and all other States and Territories to progress cross border related amendments to their legislation, to ensure national coverage of the cross border workers’ compensation principles. The nationally agreed principles are reflected in the key objectives of the amendments.
The tests for establishing the home ‘State of connection’ are set out in proposed section 20 (Compensation not payable unless worker’s employment connected with this State). If a home jurisdiction cannot be established by the first test, that is, where is the usual place of employment, the second test – where the worker is usually based – will be applied.
If applying the first two tests identifies no State or Territory, the final test, being the employer’s principal place of business in Australia, is applied. If no ‘State of connection’ can be determined for an injured worker and the worker is not entitled to compensation for the same matter, under the laws of a place outside Australia, the worker’s employment is deemed to be connected with the jurisdiction the worker is in when their injury occurred.
While the series of tests to help establish ‘State of connection’ represent the cornerstone for achieving the key objectives it is also important to ensure that:
(i)There is no fallback to any other jurisdiction (except in the circumstances outlined in (vi) below).
(ii)The determination of the ‘home’ jurisdiction will not be affected by the worker undertaking a temporary period of work for the same employer for a period up to and including six months in another State or Territory.
(iii)The benefits of the ‘home’ jurisdiction will apply to a worker temporarily working in another State or Territory for the period of work up to and including six months.
(iv)When six months has expired, the intention of the employer and the worker as to the temporary nature of the work in the other jurisdiction must be reviewed.
(v)As far as possible, workers on ships are to be treated the same as other workers. Some modification may be required to address specific requirements for such workers. For example, some seafarers may come within the first connection test if they usually work within one State or Territory. If it were necessary to move to the second test, i.e. where they are based, and they are based on a ship, the ship would be linked to one State or Territory.
(vi)In relation to common law access:
· A claim in tort in respect of a work-related personal injury suffered by a worker is to be determined in accordance with the substantive law of the State or Territory with which the workers’ employment is connected (as determined by the tests in section 20 above) at the time of the injury.
· The relevant rules will apply to actions taken against an employer or a person for whom the employer may be vicariously liable.
· Courts will apply the substantive law of the ‘home’ jurisdiction which under the amendments is the substantive law governing –
(a)Whether or not a claim for damages in respect of the injury can be made; and
(b)If it can be made, the determination of the claim. …
7.Section 15 is repealed. It will be replaced and extended by sections 20 and 23 to ensure compensation is only payable in relation to employment connected with Western Australia and to ensure a person is not compensated twice. …
36.A further aim of the choice of law model is to ensure common law damages claims and statutory compensation claims arising out of a work related injury are both able to be dealt with under the law of the same jurisdiction.
37.Section 93AA(1) stipulates that if a worker is entitled to compensation under a State or Territory statutory workers’ compensation scheme, the substantive law of the State or Territory [of connection] governs whether or not a claim for damages can be made and what the determination of the claim is. This ensures workers can only pursue common law claims in the ‘State of connection’, which provides certainty and consistency. …
41.Section 93AB(1) explains Division 1a relates to a worker’s claim for common law damages against the employer for a disability caused by negligence or other tort of the worker’s employer, or a breach of contract by the worker’s employer.
42.Section 93AB(2) specifies Division 1a also applies to a common law claim or the recovery of contribution brought against a person other than a workers’ employer if the worker’s employment is connected with Western Australia and the negligence or other tort or the breach of contract on which the claim is based occurred in Western Australia.[8]
[8]Explanatory Memorandum, Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA) 8–9.
The Explanatory Memorandum of the Victorian legislation introducing the uniform legislation indicates a similar purpose to the Western Australian legislation. The Victorian Explanatory Memorandum states that pt 3 of the amending legislation:
amends the Accident Compensation Act 1985 to provide a new framework for coverage of workers operating temporarily in another jurisdiction as part of a nationally agreed approach to these issues.[9]
[9]Explanatory Memorandum, Accident Compensation and Transport Accident Acts (Amendment) Bill 2003 (Vic) 1.
The Victorian Explanatory Memorandum also states:
Clause 21 inserts a new Division 6AB into Part IV of the Accident Compensation Act 1985 which specifies the applicable law which governs claims for damages in respect of work injuries. The clause inserts new sections 129MA to 129MF.
New section 129MA(1) establishes the basic principle underpinning these provisions which is that if there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State governs whether or not a claim for damages in respect of the injury can be made and, if it can be made, the determination of the claim. The remaining subsections of that section clarify the intended application of this principle.[10]
[10]Explanatory Memorandum, Accident Compensation and Transport Accident Acts (Amendment) Bill 2003 (Vic) 9.
The parties’ submissions about the two questions
I will set out the parties’ submissions in the same order as they were presented at the hearing.
Second defendant’s submissions
Safe Labour Hire submitted that the statutory workers compensation schemes of Victoria and Western Australia distinguish between claims brought against an employer and claims brought against other persons including an entity that is not the employer of the worker. Where a claim is brought against an employer, the law of the State connected with the employment is the substantive law to be applied, but the position is different with claims brought against persons other than the worker’s employer.
Where a claim for damages is brought against an employer, the only preconditions to the application of the statutory choice of law provisions under s 129MB(1) of the Victorian Act, or s 93AB(1) of the Western Australian Act, are that the worker has an entitlement to compensation under the statutory workers compensation scheme and that the claim is in respect of an injury caused by negligence or breach of contract by the employer, wherever occurring.
Where a claim for damages is brought against a person other than an employer, such as Safe Labour Hire, there are two statutory preconditions, contained in both s 129MB(2) of the Victorian Act and s 93AB(2) of the Western Australian Act, that must be satisfied before the statutory choice of law rules apply. The first is that the worker’s employment is connected with the respective State and the second is that the negligence or other tort on which the claim is founded occurred in that State.
Safe Labour Hire conceded that the first of the preconditions under s 129MB(2) of the Victorian Act had been met as a result of the County Court’s order of 16 September 2010. However, it submitted that the second precondition had not been satisfied, as the negligence on which Mr Di Paolo’s claim is founded occurred in Western Australia and not in Victoria.
Safe Labour Hire submitted that the position in respect of the Western Australian Act was the reverse of the position in Victoria. Mr Di Paolo satisfied the second precondition contained in s 93AB(2) of the Western Australian Act as his injury occurred in that State. However, the first precondition was not satisfied because, by the County Court order of 16 September 2010, Mr Di Paolo’s employment was determined to be connected with the State of Victoria. Western Australian law recognised that determination of connection: s 23D(1)(b) of the Western Australian Act.
Safe Labour Hire submitted that, because neither the substantive law of Victoria nor Western Australia applied pursuant to the statutory choice of law rules, the common law choice of law rules set out in John Pfeiffer Pty Ltd v Rogerson[11] determined the substantive law that applied to Mr Di Paolo’s damages claim against it. Therefore, the substantive law of the place of the alleged wrong (the ‘lex loci delicti’) governed the rights of the parties. The place of the alleged wrong was Western Australia.
[11](2000) 203 CLR 503. See also M Davies, AS Bell and PLG Brereton, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 9th ed, 2014) 480–2.
The substantive common law of Western Australia, unmodified by statute, includes s 14(1) of the Limitation Act 2005 (WA), which limits the period for the commencement of personal injury proceedings to three years since the cause of action accrued. As Mr Di Paolo’s injury occurred on 11 August 2009 and the proceeding to which the questions before the Court relate was commenced on 5 August 2013, the action was brought outside the limitation period and the claim is statute barred.
As previously stated, in Victoria and Western Australia, the legislation deals separately with claims against employers and persons other than employers. Mr Di Paolo’s submissions would have the effect of adding words to s 129MB(1) and s 93AB(1) in order to extend their operation to persons other than employers. His interpretation would limit the operation of s 129MB(2) and s 93AB(2) to cases where the worker brought an action only against persons other than the employer. That interpretation would confine the operation of the non-employer subsections to the rare case where the worker did not sue the employer but only an entity other than the employer. The legislation did not intend that outcome. The Victorian Explanatory Memorandum indicates that the ‘remaining subsections [s 129MB(1) and (2)] clarify the intended application’ of the Part of the amending Act dealing with choice of law.
Mr Di Paolo’s interpretation would allow a party to ‘forum shop’ for a favourable substantive law and enable a worker to bring a second claim against non-employers if a claim against the employer failed.
Under Mr Di Paolo’s interpretation, he would be able to select the substantive law of Victoria with its six year limitation period rather than the Western Australian limitation period of three years, because of a consent order made by the County Court. That order was made without notice to, or the consent of, Safe Labour Hire or GCS. Prior to the making of the County Court order, Mr Di Paolo had received workers compensation under the Western Australian scheme, presumably because his employment was then so connected to Western Australia.
Mr Di Paolo’s interpretation would have the effect that if the employer was sued, then the limitation period of the State found to be the connected State would apply to all claims brought by the worker in respect of the alleged wrong. But that would not be the result where the non-employer was the only defendant. There was no logical reason for that outcome and no support for it in the legislation.
There is no reason why the substantive law of one State may not apply in respect of the employer and the substantive law of another State apply in respect of certain non-employer defendants. The limitation provisions form part of the substantive law of the State.[12] The uniform legislation intends to apply the statutory choice of law rules to a narrower range of circumstances in claims brought against a non-employer than in the case of claims brought against an employer.
[12]McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1, 42–4 (Brennan, Dawson, Toohey and McHugh JJ); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553 (McHugh J).
Mr Di Paolo’s preferred narrow construction of s 129MB(2) and s 93AB(2) requires insertion of the word ‘only’ after the word ‘brought’ and renders the inclusion of the word ‘also’ redundant. The inclusion of the word ‘also’ supports the second defendant’s interpretation of the statutory choice of law provisions. Further, in contrast to s 129MB and s 93AB, s 129MA(1) and s 93AA(1) contain the wide expression ‘a claim for damages in respect of the injury’, but without specifying whether or not the person against whom the claim is made is an employer or non-employer. The initial task before applying s 129MB(2) and s 93AB(2) is determining the persons to whom those provisions relate.
It may be that the States and Territories have not reached a uniform view concerning choice of law rules for all claims by cross-border workers against non-employers.
Third defendant’s submissions
GCS adopted the submissions made by Safe Labour Hire. It further submitted that it was appropriate that the Victorian Act have no application to Mr Di Paolo’s claim against Safe Labour Hire or GCS, given that the accident occurred in Western Australia and neither Safe Labour Hire nor GCS had any relevant connection to Victoria. In the case of a claim against a non-employer, connection of the employment to a State is not determinative of the law to be applied. The statutory choice of law rules apply in more limited circumstances in the case of claims against non-employers than to claims against employers.
First defendant’s submissions
Salta made no substantive submissions, but stated that it did not put Western Australian law ‘in issue in this proceeding’ and had no interest in the outcome of this proceeding, other than forensic interests.
Plaintiff’s submissions
Mr Di Paolo submitted that the law of Victoria governed his claims against all of the defendants. Consequently, his claims were not statute barred.
The relevant Victorian and Western Australian statutory provisions must be interpreted in the context that they form part of a national workers compensation scheme intended to operate uniformly across States and directed at remedying the problems of compensating workers who worked in more than one State. The choice of law provisions modify common law principles and form part of a scheme intended to provide certainty and consistency in outcome by establishing a uniform system of providing statutory benefits and common law damages.
Under the uniform legislation, workers working temporarily in another jurisdiction only have access to the workers compensation and common law entitlements of their ‘home related territory’.
The preconditions contained in s 129MB(2) and s 93AB(2) apply to a claim solely against persons other than the employer, but not to a claim made against both an employer and a person or persons other than that employer.
Where a claim is made against an employer and the worker has an entitlement to compensation under the statutory workers compensation scheme of a State, under s 129MB(1) or s 93AB(1) the only statutory precondition to the application of the substantive law of that State to the claim is that the claim be in respect of an injury caused by the negligence or breach of contract by the employer, wherever occurring.
If a claim is commenced against an employer, the whole proceeding, including any claim against the person other than the employer, is by force of s 129MB(1) or s 93AB(1) (or similar provisions in other States) subject to the substantive law of the State where the worker has an entitlement to compensation under a statutory workers compensation scheme.
Further, the preconditions in s 129MB(2) and s 93AB(2), that the worker’s employment be connected with the particular State and that the negligence or other tort on which the claim is founded had occurred in that State, mean that these provisions only operate where a claim is brought by a worker who has been injured in his home State. Therefore, an interpretation of s 129MB(1) or s 93AB(1) that restricts their operation to claims brought only against an employer, and excludes claims in the same action brought against persons other than the employer, would create a lacuna in relation to claims commenced by cross-border workers.
Safe Labour Hire’s and GCS’s interpretation would result in claims against employers being undertaken under one State law, while claims in the same action against persons other than the employer would be undertaken under another State law. This was not the purpose of the uniform legislation. Claims made only against non-employers were not as rare as the second and third defendants contended.
The laws of Victoria and Western Australia governing Mr Di Paolo’s claims in tort and contract differ in significant respects, including as to the assessment of damages.[13]
[13]The plaintiff provided a table showing those differences.
If the interpretation of s 129MB(1) and s 129MB(2) advanced by Mr Di Paolo is not accepted, common law choice of law principles apply the Victorian substantive law, so that the lex loci delicti applies. This is because s 23D of the Western Australian Act requires Western Australian courts to recognise a determination of connection made by the court of another State. Western Australian courts would therefore recognise the County Court’s order of 16 September 2010 which determined a connection with the State of Victoria. Section 20(2) of the Western Australian Act provides that compensation is only payable under that Act where a connection with that State has been determined. Because a determination has been made of a connection to Victoria, no entitlement to compensation arises under s 93AA of the Western Australian Act. The substantive law of Victoria would therefore govern Mr Di Paolo’s claim for damages.
Mr Di Paolo foreshadowed that if it was found that Western Australian law applied to his claims against the second and third defendants, he would apply to this Court for an extension of time within which to bring proceedings against those defendants.
Consideration of submissions
In order to answer the two questions referred for determination, the Court must construe the choice of law provisions contained in the uniform legislation as enacted in Victoria and Western Australia, particularly ss 129MB(1) and 129MB(2) of the Victorian Act and ss 93AB(1) and 93AB(2) of the Western Australian Act. Whilst both parties referred the Court to extrinsic material, in particular the Explanatory Memoranda of the legislation, the first task is to determine the plain meaning of the words used in the sections. The following statements by the High Court indicate the connection for the purposes of statutory interpretation of the text of the legislation and the context and purpose of the legislation. They establish that the text must be considered in its context.
In Project Blue Sky Inc v Australian Broadcasting Authority,[14] McHugh, Gummow, Kirby and Hayne JJ stated:
Ordinarily, that meaning (the legal meaning) [of a statutory provision] will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
[14](1998) 194 CLR 355, 384 [78] (citation omitted).
In CIC Insurance Ltd v Bankstown Football Club Ltd,[15] Brennan CJ, Dawson, Toohey and Gummow JJ stated:
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
[15](1997) 187 CLR 384, 408 (citations omitted).
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[16] Hayne, Heydon, Crennan and Kiefel JJ stated:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[16](2009) 239 CLR 27, 46–7 [47] (citations omitted).
In Thiess v Collector of Customs,[17] French CJ, Hayne, Kiefel, Gageler and Keane JJ stated:
[17](2014) 250 CLR 664, 671–2 [22]–[23].
Statutory construction involves attribution of meaning to statutory text. As recently reiterated:[18]
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.
Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act1901 (Cth) that ‘the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation’ is in that respect a particular statutory reflection of a general systemic principle. For:[19]
it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
[18]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (citation omitted).
[19]Cabell v Markham (1945) 148 F (2d) 737, 739, quoted in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629, 644 [27].
The context of the uniform legislation was the recognition by government of the need to address problems arising from cross-border employment. The purpose of the statutory choice of law rules is to enable determination of the substantive law to govern injury claims by workers occurring in a jurisdiction other than their home jurisdiction. The legislation is intended to provide uniformity and harmony concerning choice of law rules. Giving effect to that objective is important.[20]
[20]See Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 17–22.
The choice of law provisions contained in the uniform legislation determine the substantive law to be applied where a worker is entitled to compensation in respect of an injury under the statutory workers compensation scheme of a State. The legislation provides that the substantive law of the State, which includes limitation provisions, governs whether or not a claim for damages in respect of the injury can be made and, if it can be made, the determination of the claim.
The provisions, which have been the subject of debate in this case, s 129MB and s 93AB, specify the claims to which the choice of law divisions contained in the uniform law provisions apply. If the worker’s claim does not come within the statutory choice of law divisions, then the statutory choice of law rules in s 129MA of the Victorian Act and s 93AA of the Western Australian Act do not apply to it.
The first effect of the statutory choice of law divisions is to specify the applicable substantive law which governs certain claims for damages in respect of work injuries. More particularly, the divisions have that effect ‘if there is an entitlement to compensation under the statutory workers compensation scheme of a State’. The remaining sub‑sections of s 129MB and s 93AB clarify the intended application of this principle.[21]
[21]Explanatory Memorandum, Accident Compensation and Transport Accident Acts (Amendment) Bill 2003 (Vic) 9.
Sections 129MB and 93AB specify the claims to which the divisions apply. Their first subsections specify claims brought against a worker’s employer. Their second subsections apply to claims brought against persons other than a worker’s employer and apply to only some such claims. It is unclear why the word ‘only’ is contained in s 129MB(1) but not in s 93AB(1). It is difficult to give it any relevant meaning. The word ‘only’ does not mean that s 129MB(1) contains the only circumstances in which the section applies, because the next subsection extends it to other claims, that is those against non-employers.
I accept the submission of Safe Labour Hire and GCS that the words of ss 129MB(1) and 129MB(2), and ss 93AB(1) and 93AB(2), distinguish between claims made against an employer and claims made against persons other than employers. This is apparent in s 129MB(1) which states that the Victorian Act’s choice of law division ‘applies only to a claim … brought against a worker’s employer’ where the injury was caused by the negligence or other tort of the worker’s employer or a breach of contract by the worker’s employer. Section 129MB(2) extends the application of the Victorian Act’s choice of law division to ‘a claim … brought against a person other than a worker’s employer’ where two preconditions are met: the worker’s employment is connected with Victoria and the negligence or other tort or breach of contract on which the claim is founded occurred in Victoria.
I consider that there is no ambiguity in the wording used in either the Victorian or Western Australian provisions. The legislation identifies the ‘worker’s employer’ and ‘a person other than a worker’s employer’ as two separate classes. Section 129MB(1) applies to employers and employers alone. Section 129MB(2) applies to persons other than employers and only to such persons.
The plaintiff’s submission requires adding the word ‘only’ to the text of s 129MB(2). While words can be implied or inserted into a statute where there is a clear necessity, no necessity exists in this case.[22] To adopt the plaintiff’s interpretation of the provisions would broaden the scope of s 129MB(1) and s 93AB(1) so that they include a class of person to whom different claim preconditions expressly apply under s 129MB(2) and s 93AB(2). Such an interpretation would remove the distinction the legislatures have drawn between an employer and a person other than an employer. I do not consider that to be permissible.
[22]Cf Taylorv Owners — StrataPlan No 11564 (2014) 306 ALR 547.
I do not read the Explanatory Memoranda of the Victorian Act and Western Australian Act as supporting the plaintiff’s interpretation of the choice of law rules. Rather, they suggest that the legislation is primarily directed at claims against employers.
I accept the plaintiff’s submission that the objective of the uniform legislation is to ensure harmony and consistency in respect of claims by cross-border employees by a national workers compensation ‘scheme’. But the text of the legislation indicates that the choice of law provisions apply only to some, and not all, workers’ claims made against non-employers. I accept that one approach available to Parliament would have been to enact legislation that had the effect that when a claim against an employer is connected to a State, then claims against non-employers are also governed by the laws of that State. That would have the benefit of enabling all claims arising from one injury to be dealt with in the same proceeding. However, I do not consider that the choice of law provisions of the Victorian and Western Australian legislation have that purpose or that effect.
There is no basis for concluding that s 93AB(2) and s 129MB(2) only apply when no claim is brought against the employer. The legislative scheme is primarily directed at the choice of the law that applies to claims by the worker against the employer. The statutory choice of law rules only apply to claims against other persons in the circumstances specified in s 129MB(2) and s 93AB(2).
The County Court’s determination made under s 80 of the Victorian Act is sufficient to establish Mr Di Paolo’s entitlement under s 129MA(1) to have his claim against his employer heard under the substantive law of Victoria. That determination of connection also satisfies one of the two s 129MB(2) choice of law preconditions relevant to Mr Di Paolo’s claim against Safe Labour Hire and GCS, who are persons other than his employer. However, it does not satisfy the second precondition. The alleged negligence or breach of contract did not occur in Victoria. Therefore, the claims against Safe Labour Hire and GCS do not fall within the scope of s 129MB(2). The Victorian statutory choice of law provisions therefore do not apply to the claims against Safe Labour Hire and GCS: s 129MA(1).
Nor do the Western Australian choice of law provisions apply to Mr Di Paolo’s claims against the second and third defendants. Mr Di Paolo’s claims against Safe Labour Hire and GCS satisfy one of the two s 93AB(2) choice of law preconditions, as the alleged negligence occurred in Western Australia. But the other precondition that the employment be connected with that State is not satisfied. Therefore, the claims against Safe Labour Hire and GCS do not fall within the scope of s 93AB(2) and, therefore, the Western Australian statutory choice of law provisions do not apply to those claims.
The Victorian and Western Australian statutory modifications to the common law choice of law rules do not govern Mr Di Paolo’s claim against the second and third defendants.
Accordingly, common law choice of law principles apply in relation to Mr Di Paolo’s claims against Safe Labour Hire and GCS. The substantive common law of the place of the alleged wrong, Western Australia, including the Limitation Act 2005 (WA), governs the rights of the parties in respect of those claims.
As stated, s 14(1) of the Limitation Act 2005 (WA) provides that an action for damages relating to a personal injury by a person cannot be commenced if three years have elapsed since the cause of action accrued.
Conclusion
I propose to answer the two questions as follows:
A.Is the Plaintiff’s claim for damages in respect of injury against the Second Defendant and Third Defendant governed by the substantive law (including applicable limitation periods) of-
(a) the State of Western Australia? Answer: yes.
(b) the State of Victoria? Answer: no.
B.If the answer to Question A is Yes, does the substantive law of Western Australia (including applicable limitation periods) apply to the Plaintiff’s claim for damages against the Second Defendant and Third Defendant:
(a)unmodified by Division 1a of Part IV of the Workers’ Compensation and Injury Management Act 1981 (WA) such that the common law choice of law rules apply without statutory restriction to the Plaintiff’s claim? Answer: yes.
(b)as modified by Division 1a such that these common law rules are restricted from applying to the Plaintiff’s claim? Answer: no.
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