Emu (AUS) Pty Ltd v Victorian WorkCover Authority - [2012] VSC 610

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4105 of 2011

EMU (AUS) PTY LTD (ACN 115 944 799)	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 & 29 November 2012
DATE OF JUDGMENT:	12 December 2012
CASE MAY BE CITED AS:	EMU (AUS) PTY LTD v VICTORIAN WORKCOVER AUTHORITY
MEDIUM NEUTRAL CITATION:	[2012] VSC 610

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ACCIDENT COMPENSATION – Compulsory WorkCover insurance policy – Premiums calculated by reference to the “predominant activity” conducted at a workplace – Appeal by way of hearing de novo – Inquiry into which of the activities contributes more than any other activity to the value of goods and services – Whether classification corresponds to the predominant activity – Accident Compensation (WorkCover Insurance) Act 1993 (Vic) ss 7, 15, 17, 26, 36J – WorkCover Insurance Premiums Order (No. 18) 2010/2011, sch 1 items 3, 7, sch 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Stuckey	Arnold Bloch Leibler
For the Defendant	Ms G L Schoff S.C. with Ms R L Enbom	Corrs Chambers Westgarth

HIS HONOUR:

The Plaintiff appeals from a decision of the Victorian WorkCover Authority made 2 June 2011 in relation to the calculation of the Plaintiff’s insurance premium for the 2010/2011 policy period. The appeal is brought pursuant to s 36J of the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) and the appeal is a hearing de novo.[1]
[1]United Petroleum Pty Ltd v Victorian WorkCover Authority [2011] VSC 570 (Osborn J).

The Plaintiff was obliged to have in force a WorkCover insurance policy with the Authority for the 2010/2011 policy period.[2] The premium payable by the Plaintiff for the insurance policy in respect of that period is to be determined in accordance with the Premiums Order[3] made by the Governor in Council.[4] WorkCover Insurance Premiums Order (No. 18) 2010/2011 dated 9 June 2010 came into force on 30 June 2010 and specifies the premiums payable by employers for WorkCover insurance policies in force in respect of policy periods between 4.00pm 30 June 2010 and 4.00pm 30 June 2011. The Authority determined that the Plaintiff’s premium was to be calculated upon the basis that the predominant activities at its workplace caused it to fall within Group Class 246 “Footwear”, C2460A “Footwear or Footwear Components Mfg” in Schedule 4 to the Premiums Order. The Plaintiff, in contrast, contended that its premium was more appropriately calculated by reference to Group Class 477 “Textile and Clothing Wholesalers”, F4773A “Footwear Wholesalers”. During the course of the hearing classification F4673T “Footwear Agencies” was relied upon in the alternative by the Plaintiff.
[2]Accident Compensation (WorkCover Insurance) Act 1993 (Vic) s 7.
[3]Accident Compensation (WorkCover Insurance) Act 1993 (Vic) ss 17 and 26.
[4]Accident Compensation (WorkCover Insurance) Act 1993 (Vic) s 15.

The premium payable by an employer depends upon the industry classification of a workplace. Item 7 of Schedule 1 of the Premiums Order provides that the…

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: [2012] VSC 610
Decision Date: 12 December 2012

CaseChat Overview and Summary

Emu (AUS) Pty Ltd, a company involved in the production of footwear and accessories, sought judicial review of a decision made by the Victorian WorkCover Authority regarding the calculation of its WorkCover insurance premiums. The dispute centred on the interpretation of the "predominant activity" at Emu's workplace and how this affected the premiums. The case was heard in the Supreme Court of Victoria.

The key legal issue before the court was determining which activity at Emu's workplace contributed more than any other to the value of goods and services, thereby identifying the predominant activity for the purposes of calculating WorkCover insurance premiums. This required an inquiry into the nature and extent of the activities conducted by Emu, and whether the classification of these activities corresponded with the predominant activity. The court needed to consider relevant sections of the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) and the WorkCover Insurance Premiums Order (No. 18) 2010/2011.

The court examined the activities of Emu, focusing on whether the production of footwear and accessories constituted the predominant activity. It considered evidence and submissions from both parties, including expert testimony on the economic contributions of the various activities. The court concluded that the classification of activities aligned with the predominant activity for WorkCover insurance purposes, and upheld the decision of the Victorian WorkCover Authority. The appeal was dismissed.

The final orders of the court confirmed the decision of the Victorian WorkCover Authority regarding the classification of the predominant activity for WorkCover insurance premium calculation purposes. The court's decision provided clarity for both Emu and the Authority in future dealings, ensuring compliance with the legislative framework governing WorkCover insurance in Victoria.

Orders