Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh
[2014] WADC 99
•4 AUGUST 2014
ETHNIC INTERPRETERS AND TRANSLATORS PTY LTD -v- SABRI-MATANAGH [2014] WADC 99
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 99 | |
| Case No: | CIVO:191/2013 | 23 JULY 2014 | |
| Coram: | MARTINO CJDC | 4/08/14 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | The employment of the defendant is connected with Christmas Island | ||
| PDF Version |
| Parties: | ETHNIC INTERPRETERS AND TRANSLATORS PTY LTD SAEED SABRI-MATANAGH |
Catchwords: | Workers' compensation Jurisdiction With which State or Territory employment is connected |
Legislation: | Workers' Compensation and Injury Management Act 1981 (Christmas Island), s 20 and s 23C |
Case References: | Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5, 196 FLR 361 Tamboritha Consultants v Knight [2008] WADC 78; 58 SR (WA) 291 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SAEED SABRI-MATANAGH
Defendant
Catchwords:
Workers' compensation - Jurisdiction - With which State or Territory employment is connected
Legislation:
Workers' Compensation and Injury Management Act 1981 (Christmas Island), s 20 and s 23C
Result:
The employment of the defendant is connected with Christmas Island
Representation:
Counsel:
Plaintiff : Mr J J Sheldrick
Defendant : Mr B L Nugawela
Solicitors:
Plaintiff : Spark Helmore Lawyers
Defendant : Shine Lawyers
Case(s) referred to in judgment(s):
Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5, 196 FLR 361
Tamboritha Consultants v Knight [2008] WADC 78; 58 SR (WA) 291
1 MARTINO CJDC: The plaintiff, Ethnic Interpreters and Translators, applies pursuant to s 23C of the Workers' Compensation and Injury Management Act 1981 (Christmas Island) for a determination as to which State or Territory is connected with the employment of the defendant, Mr Sabri-Matanagh. In determining the application the District Court of Western Australia is exercising jurisdiction conferred on it by s 14B(1) of the Christmas Island Act 1958 (Cth). The reference to a State in s 23C of the Workers' Compensation and Injury Management Act 1981 (Christmas Island) includes a reference to a Territory – s 5.
2 The evidence before me on the hearing of the application consisted of affidavits of Malyar Dehsabzi, the sole director of Ethnic Interpreters and Translators, made on 29 January 2014 and 22 July 2014 and affidavits of Mr Sabri-Matanagh made on 5 February 2014 and 15 July 2014. Ethnic Interpreters and Translators objected to the admissibility of portions of Mr Sabri-Matanagh's affidavit of 5 February 2014. Mr Sabri-Matanagh conceded that parts of the paragraphs of that affidavit were inadmissible. The parties reached agreement as to the parts of the affidavit which were admissible. A marked up copy of the affidavit reflecting that agreement was annexed to Ethnic Interpreters and Translators' outline of submissions.
3 Ethnic Interpreters and Translators carries on business providing interpreting and translating services. Annexed to Mr Dehsabzi's affidavit of 29 January 2014 is a copy of a document titled 'Terms of Engagement & Code of Ethics' dated 20 October 2010 and signed by Mr Sabri-Matanagh. The document appears to be a standard form used by the plaintiff at that time. It was not drafted by a legal practitioner. It is common ground between the parties that following Mr Sabri-Matanagh signing that document he provided interpreting services on Christmas Island and in the State of Victoria for which he was paid by Ethnic Interpreters and Translators. It is not in dispute that the document contains contractual terms between the parties. This would seem to follow from the actions of Mr Sabri-Matanagh in signing that form, providing the signed form to Ethnic Interpreters and Translators and then accepting interpreting work from Ethnic Interpreters and Translators and the actions of Ethnic Interpreters and Translators in providing interpreting work to Mr Sabri-Matanagh following the receipt by it of its form signed by Mr Sabri-Matanagh.
4 Mr Sabri-Matanagh claims that on 22 October 2011 he suffered an injury while working for Ethnic Interpreters and Translators on Christmas Island. He has made a claim for workers' compensation in respect of that injury. Ethnic Interpreters and Translators contends that the employment of Mr Sabri-Matanagh is connected with the State of New South Wales. Mr Sabri-Matanagh contends that his employment is connected with the Territory of Christmas Island.
5 Mr Sabri-Matanagh resides in Victoria. Between 20 October 2010 and 22 October 2011 Mr Sabri-Matanagh performed interpreting services for Ethnic Interpreters and Translators on Christmas Island and in Victoria. The details of that work are contained in Mr Sabri-Matanagh's timesheets which are annexed to Mr Dehsabzi's affidavit of 29 January 2014. For work on Christmas Island Mr Sabri-Matanagh was paid travelling time and for days on which he did not work. Ethnic Interpreters and Translators and Mr Sabri-Matanagh agree that the days on Christmas Island for which Mr Sabri-Matanagh was paid should be treated as work days. In the period from 20 October 2010 and 22 October 2011, Mr Sabri-Matanagh worked 68 days on Christmas Island (including those non-working days for which he was paid), 71 days in Victoria and nine days travelling between his home in Victoria and Christmas Island.
6 Section 20(4) of the Workers' Compensation and Injury Management Act 1981 (Christmas Island) makes provision as to the State or Territory with which a worker's employment is connected. As Commissioner Herron (as his Honour then was) said in Tamboritha Consultants v Knight [2008] WADC 78; 58 SR (WA) 291 at [15], the subsection provides a sequential or cascading series of steps or tests for determining whether a worker's employment is connected with the State or Territory under consideration. It is only necessary to consider each step or test if the use of the earlier test does not result in one State or Territory being identified. If no State or Territory is identified by the tests contained in s 20(4) then s 20(6) applies and a worker's employment is connected with this State or Territory if:
(a) a worker is in this State [or Territory] 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 The first test is in s 20(4)(a) and is 'the State [or Territory] in which the worker usually works in that employment'. In deciding whether a worker usually works in a State or Territory regard must be had to:
(a) the worker's work history with the employer over the preceding period of 12 months; and
(b) the intentions of the worker and the employer.
- but regard must not be had to any temporary arrangement under which the worker works in a State or Territory for a period of not longer than six months – s 20(7).
8 Counsel for Ethnic Interpreters and Translators submitted that Mr Sabri-Matanagh's work was split between Victoria and Christmas Island and that no one State or Territory can be identified as the State or Territory in which he usually worked. Counsel for Mr Sabri-Matanagh submitted that the time spent travelling to and from Christmas Island should be regarded as time spent working on Christmas Island and that when the nine days travelling are added to the 68 days working on Christmas Island, the total of days spent in relation to Christmas Island of 77 days is greater than the 71 days that Mr Sabri-Matanagh worked in Victoria and that this demonstrates that Mr Sabri-Matanagh usually worked on Christmas Island. Counsel for Mr Sabri-Matanagh also relies upon the intention of Mr Sabri-Matanagh and Ethnic Interpreters and Translators. He points to the 'Terms of Engagement & Code of Ethics' dated 20 October 2010 and signed by Mr Sabri-Matanagh which provides, in par 4, that any 'out station interpreting' assigned to Mr Sabri-Matanagh would include travelling time and to par 11 which provides:
I confirm that I shall not engage in any misconduct with any other person at the island and will be in my senses at all times.
- He submits that the island referred to is Christmas Island.
9 Counsel for Mr Sabri-Matanagh also refers to Mr Sabri-Matanagh's affidavit of 15 July 2014 in which Mr Sabri-Matanagh deposed that at the time of accepting employment with Ethnic Interpreters and Translators he was employed in Melbourne. It was his intention to obtain employment out of the city as employment out of the city was far more lucrative than employment in urban areas. He had always wanted to work on Christmas Island and saw the contract with Ethnic Interpreters and Translators as a way of furthering his career. Mr Sabri-Matanagh also deposed that it is highly unlikely that he would have accepted employment with Ethnic Interpreters and Translators if the employment was for a position based in Melbourne or Parramatta and that it 'was therefore my understanding that the contract of employment was for a position based predominantly on Christmas Island'.
10 Annexed to Mr Sabri-Matanagh's affidavit of 15 July 2014 is a document titled 'State of Boarder Questions' which was attached to Ethnic Interpreters and Translators' reply dated 28 August 2013 to Mr Sabri-Matanagh's application for arbitration at WorkCover. The document appears to contain Ethnic Interpreters and Translators' answers to questions about Mr Sabri-Matanagh's employment. That document included the following questions and answers:
TEST A
1 Which State does the worker spend the greatest proportion of time working in?
Christmas Island, Western Australia
2 Which State does the worker's contract of employment conditions indicate they are connected to?
Christmas Island, Western Australia and other states apart from NSW
3 What is the worker's history of work in each State in that employment?
Christmas Island, Western Australia – 3 months
Victoria – 1 month
4 Which State will future work be in based on future work plans?
All States apart from NSW
TEST B
1 What is the State specified on the worker's contract of employment?
Our Contract doesn't mention specific state.
2 Which State is the location the worker will attend routinely to receive directions or collect materials?
NSW and where he is doing the job.
3 Which State is the location the worker usually reports for work?
NSW and where he is doing the job.
4 Which State is the location from which the worker's wages are paid?
New South Wales
TEST C
1 In which State is the employer's address registered on the Australian Business Register in connection with their ABN?
New South Wales
…
3 In which State is the employer's business mailing address?
New South Wales.
12 In Tamboritha Commissioner Herron concluded that the requirement to have regard to the period of 12 months does not preclude having regard to a longer period. As the period greater than 12 months is so small nothing turns on that issue in this case. I agree with Gray J in Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5, 196 FLR 361 at [22] and [26] that the test is not a quantitative test. In the context in which it appears in s 20 the word usually means habitual or customary or 'in a regular manner'. As Commissioner Herron said in Tamboritha at [76] if the test for determining with which State the worker's employment was connected was by reference to the State in which the worker worked for the majority of his time, s 20(4)(a) would have been expressed in those terms. The expression 'usually works' is not synonymous with where the worker 'works for the majority of the time'. In having regard to Mr Sabri-Matanagh's work history with Ethnic Interpreters and Translators over the period preceding 22 October 2011, I conclude that at times Mr Sabri-Matanagh worked in Christmas Island and at times he worked in Victoria. That work history does not demonstrate that Mr Sabri-Matanagh usually worked in either Christmas Island or Victoria.
13 In my view there is nothing in the 'Terms of Engagement & Code of Ethics' that indicates that the intentions of Mr Sabri-Matanagh or Ethnic Interpreters and Translators were that Mr Sabri-Matanagh would usually work on Christmas Island. I accept that the reference to island in par 11 is likely to be a reference to Christmas Island. The contract contemplated that Mr Sabri-Matanagh would perform some work on Christmas Island, but not that he would usually work there.
14 The statements as to Mr Sabri-Matanagh's personal intentions in his affidavit of 15 July 2014 do not demonstrate an intention that he would usually work on Christmas Island. Mr Sabri-Matanagh hoped to get work on Christmas Island, for which he would be remunerated at a higher rate than if he worked in a city. However that is not the same as an intention usually to work on Christmas Island.
15 The document titled 'State of Boarder Questions' does not support a conclusion that Mr Sabri-Matanagh usually worked in a State or Territory. Mr Sabri-Matanagh's work history is not accurately stated in the answer to the third question. The answer to the first question appears to be based on that error, but whether or not that is so, the answer to the first question does not demonstrate where Mr Sabri-Matanagh usually worked. As I have said 'usually works' is not synonymous with where the worker 'works for the majority of the time'.
16 I conclude that there is no State or Territory in which Mr Sabri-Matanagh usually worked.
17 The next test is contained in s 20(4)(b) and is 'the State [or Territory] in which the worker is usually based for the purposes of that employment'.
18 Counsel for Ethnic Interpreters and Translators submitted that Mr Sabri-Matanagh lived on Christmas Island when he was working there and that he lived in Victoria when he was working there and that no one State or Territory can be identified as the State or Territory in which he was usually based. Counsel for Mr Sabri-Matanagh also submitted that there was no State or Territory in which Mr Sabri-Matanagh was usually based.
19 In Tamboritha Commissioner Herron referred, in par [83], to the guidance provided as to the place at which a worker is based for the purposes of employment contained in s 53AA of the Work Health Act 1986 (NT). The Workers' Compensation and Injury Management Act 1981 (Christmas Island) does not have a corresponding provision.
20 The words 'usually based for the purposes of that employment' indicate that it is not the place where the worker lives. The section is concerned with location 'for the purposes of ' the worker's employment. There is no evidence that Mr Sabri-Matanagh was usually based in any one State or Territory. When he worked on Christmas Island he was based there. When he worked in Victoria he lived in that State and, for the purposes of the work he did in Victoria, his employment did not have any relationship with Christmas Island. I accept the submissions of both counsel that there was no State or Territory in which Mr Sabri-Matanagh was usually based for the purposes of his employment.
21 The next test is contained in s 20(4)(c) and is the State or Territory 'in which the employer's principal place of business in Australia is located'. Counsel for Ethnic Interpreters and Translators submitted that its head office is in New South Wales and that its principal place of business is in that State. Counsel for Mr Sabri-Matanagh submitted that there was insufficient evidence to determine Ethnic Interpreters and Translators' principal place of business.
22 The expression is not defined in the Act. As Commissioner Herron said in Tamboritha at [66], the expression does not mean the principal place of business registered by a corporation with the Australian Securities and Investment Commission. If that was the intention of the Parliament the legislation would have so provided. The expression has its ordinary English language meaning of the chief, most important or main place of business from where the employer conducts most or the chief part of its business.
23 Mr Dehsabzi deposed in his affidavits that he is the sole director of Ethnic Interpreters and Translators. The company's head office is located in an office in Parramatta, New South Wales. Mr Dehsabzi is personally based in that office. All ultimate decisions in relation to the company's operations are his responsibility. Ethnic Interpreters and Translators also has an office in Melbourne, Victoria. The employees working out of that office are responsible to Mr Dehsabzi. Eleven employees work in the office in Parramatta and two work in the office in Melbourne. Ethnic Interpreters and Translators does not have an office on Christmas Island. It leases serviced offices in Perth, Western Australia and in other States but no employees work in those offices. Ethnic Interpreters and Translators leases those serviced offices so that it has an office to use when attending those States.
24 The information deposed to by Mr Dehsabzi explains Ethnic Interpreters and Translators' administrative arrangements, but it does not provide information from which I can conclude that there is any place from where the employer conducts most or the chief part of its business. There is no evidence as to the amount or extent of translating and interpreting business carried on by Ethnic Interpreters and Translators in each of the States and Territories in which it carries on that business. I conclude that the evidence does not establish that there is any State or Territory in which Ethnic Interpreters and Translators' principal place of business is located.
25 As no State or Territory is identified by the tests contained in s 20(4) it is necessary to turn to s 20(6). The injury is alleged to have occurred in Christmas Island. There is no evidence that there is a place outside Australia under the legislation of which Mr Sabri-Matanagh may be entitled to compensation for the same matter. I conclude that Mr Sabri-Matanagh's employment is connected with Christmas Island.
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