Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh
[2015] WASCA 186
•17 SEPTEMBER 2015
ETHNIC INTERPRETERS AND TRANSLATORS PTY LTD -v- SABRI-MATANAGH [2015] WASCA 186
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 186 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:95/2014 | 18 JUNE & 4 AUGUST 2015 | |
| Coram: | BUSS JA NEWNES JA MITCHELL J | 17/09/15 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | ETHNIC INTERPRETERS AND TRANSLATORS PTY LTD SAEED SABRI-MATANAGH |
Catchwords: | Workers' compensation State or Territory with which employment is connected State or Territory in which employer's principal place of business in Australia is located |
Legislation: | Christmas Island Act 1958 (Cth), s 8A Workers' Compensation and Injury Management Act 1981 (WA)(CI), s 20, s 160, s 170 |
Case References: | 889457 Alberta Inc v Katanga Mining Ltd [2008] EWHC 2679 (Comm) Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Avon Products Pty Ltd v Falls [2009] ACTSC 141; (2009) 236 FLR 212 Avon Products Pty Ltd v Falls [2010] ACTCA 21; (2010) 5 ACTLR 34 Baker v His Honour Judge Stone [2015] WASCA 56 Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Chew Yee v The Queen (1962) 3 FLR 177 Chong v The Queen (1989) 40 A Crim R 22 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Commonwealth v Christmas Island Resort Pty Ltd (1998) 158 ALR 699 Energo Form ACT Pty Ltd v Baljan [2015] ACTSC 257 Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2014] WADC 99 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Hertz Corp v Friend (2010) 559 US 77 Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 Ministry of Defence and Support of the Armed Forces for the Islamic Republic of Iran v Faz Aviation Ltd [2007] EWHC 1042 (Comm) Palmer v Caledonian Railway Company [1892] 1 QB 823 Plaintiff S4/2014 v Minister for Immigration [2014] HCA 34; (2014) 312 ALR 537 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Queensland Building and Construction Commission v Robuild Pty Ltd [2014] QCA 81 Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78; (2008) 58 SR (WA) 291 The Polzeath (No 2) [1916] P 241 The Rewia [1991] 2 Lloyd's Rep 325 Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ETHNIC INTERPRETERS AND TRANSLATORS PTY LTD -v- SABRI-MATANAGH [2015] WASCA 186 CORAM : BUSS JA
- NEWNES JA
MITCHELL J
- Appellant
AND
SAEED SABRI-MATANAGH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO CJDC
Citation : ETHNIC INTERPRETERS AND TRANSLATORS PTY LTD -v- SABRI-MATANAGH [2014] WADC 99
File No : CIVO 191 of 2013
Catchwords:
Workers' compensation - State or Territory with which employment is connected - State or Territory in which employer's principal place of business in Australia is located
Legislation:
Christmas Island Act 1958 (Cth), s 8A
Workers' Compensation and Injury Management Act 1981 (WA)(CI), s 20, s 160, s 170
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr G J Pynt
Respondent : Mr B L Nugawela
Solicitors:
Appellant : Sparke Helmore
Respondent : Shine Lawyers
Case(s) referred to in judgment(s):
889457 Alberta Inc v Katanga Mining Ltd [2008] EWHC 2679 (Comm)
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Avon Products Pty Ltd v Falls [2009] ACTSC 141; (2009) 236 FLR 212
Avon Products Pty Ltd v Falls [2010] ACTCA 21; (2010) 5 ACTLR 34
Baker v His Honour Judge Stone [2015] WASCA 56
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chew Yee v The Queen (1962) 3 FLR 177
Chong v The Queen (1989) 40 A Crim R 22
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Commonwealth v Christmas Island Resort Pty Ltd (1998) 158 ALR 699
Energo Form ACT Pty Ltd v Baljan [2015] ACTSC 257
Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2014] WADC 99
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Hertz Corp v Friend (2010) 559 US 77
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Ministry of Defence and Support of the Armed Forces for the Islamic Republic of Iran v Faz Aviation Ltd [2007] EWHC 1042 (Comm)
Palmer v Caledonian Railway Company [1892] 1 QB 823
Plaintiff S4/2014 v Minister for Immigration [2014] HCA 34; (2014) 312 ALR 537
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Queensland Building and Construction Commission v Robuild Pty Ltd [2014] QCA 81
Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78; (2008) 58 SR (WA) 291
The Polzeath (No 2) [1916] P 241
The Rewia [1991] 2 Lloyd's Rep 325
Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446
1 BUSS JA: I agree with Mitchell J.
2 NEWNES JA: I agree with Mitchell J.
MITCHELL J:
Summary
3 The respondent claims to have been injured on 22 October 2011 while working for the appellant on Christmas Island. In October 2010, the appellant engaged the respondent to work as an interpreter and translator. The respondent claims to have suffered torn tendons in his right shoulder when he was assaulted by a fellow interpreter at the immigration detention centre on Christmas Island.
4 In January 2012, the respondent made a claim for workers' compensation in respect of the injuries suffered on 22 October 2011. That claim was made under the Workers' Compensation and Injury Management Act 1981 (WA)(CI) (WCIM Act).
5 The appellant disputes that compensation is payable under the WCIM Act, on the basis that the respondent's employment was not connected to the Territory of Christmas Island for the purposes of the WCIM Act.
6 On 3 October 2013, the appellant commenced proceedings in the District Court of Western Australia. In those proceedings it sought an order determining that the respondent's employment was connected with the State of New South Wales, pursuant to s 23C of the WCIM Act. On 4 August 2014, the District Court determined that Christmas Island was the 'State' with which the respondent's employment with the appellant was connected.1
7 The appellant now appeals against that decision. In summary, the appellant contends that the primary judge erred in failing to conclude that the respondent's employment was connected with New South Wales on the basis that the appellant's 'principal place of business in Australia' was located in that State.
8 The main dispute in these proceedings is whether the reference to an employer's 'principal place of business in Australia' in s 20(4)(c) of the WCIM Act is to:
1. the principal place in Australia from which the employer's business activities are managed or controlled; or
2. the State or Territory in which the employer's business activities are principally carried out.
9 For the following reasons, the reference is to the principal place in Australia from which the employer's business activities are managed or controlled.
10 In the present case New South Wales is the State in which the principal place from which the appellant's business activities are managed or controlled is located. It follows that that appeal should be allowed, the orders of the District Court set aside and an order made determining that New South Wales is the State with which the respondent's employment with the appellant is connected.
The law on Christmas Island
11 Christmas Island is an external territory of Australia. It was accepted by the Commonwealth on 1 October 1958, by s 5 of the Christmas Island Act 1958 (Cth) (CI Act).
12 As enacted in 1958, s 7 of the CI Act provided for the continuance of laws in force in the Territory immediately before the proclamation of that provision. The effect was to continue the operation of much of the law of the colony of Singapore, of which Christmas Island previously formed part, as it stood in 1958.2
13 The legal regime on Christmas Island was altered, with effect from 1 July 1992.3 Since that time, as provided for by s 7 of the CI Act, the laws in force in the Territory comprise Commonwealth Acts,4 Ordinances,5 specified continued laws6 and laws of Western Australia applied to the Territory as surrogate Commonwealth law by s 8A of the CI Act.
14 State laws applied in the Territory are subject to a number of modifications. They may be amended or repealed by an Ordinance.7 The operation of a State Act may be terminated by a resolution passed by the Senate or House of Representatives.8
15 One Ordinance which amends applied State Acts is the Interpretation Act 1984 (WA)(CI) (Amendment) Ordinance 1992 (CI). The Ordinance amends the Interpretation Act 1984 (WA), as it is applied in the Territory as Commonwealth law. The Ordinance introduces s 5A, which identifies the means by which Western Australian Acts in force in Western Australia are distinguished from Western Australian Acts applied in the Territory as Commonwealth law. State Acts in force in Western Australia are referred to by the short title of the Act followed by (WA). State Acts applied in the Territory are referred to by the short title of the Act followed by (WA)(CI). So, for example, the Interpretation Act as in force in Western Australia is the Interpretation Act 1984 (WA), while the Act applied in the Territory is the Interpretation Act 1984 (WA)(CI).
16 A further amendment is to the definition of 'the State' and 'this State' in s 5 of the Interpretation Act. By s 5 of the Interpretation Act 1984 (WA)(CI) a reference to 'the State' or 'this State' when used in a geographical sense means the Territory.9
17 Powers which are, in Western Australia, vested in persons and authorities, other than a court officer or court of Western Australia, are instead vested in the relevant Commonwealth Minister.10 The Commonwealth Minister may direct that such a power also be vested in a specified person or authority, or delegate the power to a specified person.11 The persons and authorities in whom powers are vested, or to whom powers are delegated, may be Western Australian public authorities or officers pursuant to arrangements made between the Commonwealth and Western Australia.12
18 The WCIM Act is a State Act applied by s 8A of the CI Act. In addition to the modifications effected by s 8G of the CI Act and the Interpretation Act 1984 (WA)(CI), the State Act is modified by pt 45 of the Applied Laws (General) Ordinance 1992 (CI). However, the modifications effected by pt 45 are not relevant for present purposes.13
19 Western Australian courts are invested, in and in relation to the Territory, with the same jurisdiction (including appellate jurisdiction) which they have in the State.14 For these purposes this court and the District Court of Western Australia are both courts of Western Australia.15
The WCIM Act
20 The WCIM Act establishes a workers' compensation regime in the Territory. It is unnecessary, for the purposes of resolving this appeal, to set out many of the provisions of the WCIM Act. The question which arises in this case is whether compensation is payable to the respondent under the WCIM Act at all. That question turns on the proper construction of s 20 of the WCIM Act.
21 In quoting provisions of the WCIM Act below, I shall transpose references to the Territory for references to 'the State' and 'this State', in the manner contemplated by s 5 of the Interpretation Act 1984 (WA)(CI).
22 Section 18 of the WCIM Act creates the liability of an employer to pay workers' compensation under the WCIM Act in the following terms:
If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
23 The term 'injury' is defined in s 5(1) of the WCIM Act. It includes events which may occur over a short period of time, such as a 'personal injury by accident arising out of or in the course of the employment'. It also includes events which may occur over extended periods, such as a disease contracted by a worker in the course of his or her employment.
24 Section 20(2) of the WCIM Act is one of the provisions to which s 18 is subject. It provides:
Compensation under this Act is only payable in respect of employment that is connected with [this Territory].
25 By s 20(3) of the WCIM Act:
The fact that a worker is outside [this Territory] when the injury occurs does not prevent compensation being payable under this Act in respect of employment that is connected with [this Territory].
26 Section 20(4) makes provision in relation to the State with which a worker's employment is connected. For this purpose a reference to a State includes a Territory of the Commonwealth.16 Section 20(4) provides:
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.
27 Section 20(5) of the WCIM Act makes specific provision in relation to workers employed on ships, where no State or no one State is identified by s 20(4). In that event, the worker's employment is connected with the State in which the ship is registered. If the ship is registered in more than one State, the worker's employment is connected with the State in which the ship most recently became registered.
28 Section 20(6) makes provision where no State or Territory is identified by s 20(4) or (5) of the WCIM Act. In that event:
a worker's employment is connected with [this Territory] if:
(a) a worker is in [this 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.
29 Section 20(7) of the WCIM Act defines mandatory relevant considerations which must be taken into account in deciding whether a worker usually works in a State. It also identifies an irrelevant consideration which a court making such a decision must disregard. Section 20(7) provides:
In deciding whether a worker usually works in a State, 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 employer,
but regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
30 Section 23B of the WCIM Act applies where the question of whether Christmas Island is connected with a worker's employment arises in proceedings in a court in relation to a claim for compensation under the WCIM Act. In that event, the court must determine the State with which the worker's employment is connected in accordance with s 20, and cause that determination to be entered in the records of the court.
31 Section 23C of the WCIM Act provides for the District Court to determine which State (or Territory) is connected with a worker's employment, in the following terms:
(1) If a claim for compensation has been made under this Act, a party to the claim may apply to the District Court for a determination of the question of which State is the State with which the worker's employment is connected.
(2) The District Court must determine an application under subsection (1) in accordance with section 20 and cause that determination to be entered in the records of the court.
(3) An application under subsection (1) is not to be made or heard if there is a determination that is to be recognised under section 23D.
32 Section 23D indicates that the above provisions are to interact with corresponding provisions in other States and Territories of Australia. It applies if a determination of the State with which a worker's employment is connected has been made under s 23B or s 23C of the WCIM Act, or by a court of another State under a provision of a law that corresponds with those sections. It also applies to determinations in certain damages claims.
33 Subject to provisions for appeals made in s 23D(3) and s 23D(4), the State or Territory so determined is to be recognised for the purposes of the WCIM Act as the State or Territory with which the worker's employment is connected.
34 As well as providing for employers' liability to pay compensation to workers, the WCIM Act requires an employer to obtain insurance in respect of the employer's liability to pay workers' compensation and damages. Section 160(1) of the WCIM Act provides:
Subject to this Act, every employer shall obtain from an approved insurance office and shall keep current a policy of insurance for:
(a) the full amount of the employer's liability to pay compensation under this Act to any worker employed by the employer including any increase in amount occurring during currency of the policy; and
(b) the amount of the employer's liability to pay damages to or in respect of any worker employed by the employer, other than a deemed worker of the employer, in respect of a compensable injury for which the employer is liable.
35 Section 160(2) requires an employer applying to effect or renew a policy to furnish to the approved insurance office:
an estimate, made to the best of that employer's knowledge, information and belief, of the aggregate amount of remuneration to be paid or payable over the period for which the policy is to be effected or renewed[.]
36 At the end of the insurance period the employer is required to furnish a statement of the aggregate amount of remuneration paid or payable in fact.
37 Section 170(1) creates an offence where an employer:
(a) fails to comply with section 160(1) or (2); or
(b) gives in an estimate or statement furnished under section 160(2) any information or particular that he knows to be false in any material particular[.]
38 The maximum penalty for such an offence is defined to be '$5 000 in respect of each worker employed by him to whom the offence relates.' Section 170(2) of the WCIM Act requires a court convicting an employer to order the employer to pay to the Commonwealth an amount equal to certain avoided insurance premiums.
39 Section 170(3a) and s 170(3b) of the WCIM Act qualify the liability of an employer to prosecution under s 170(1) of the WCIM Act, by reference to s 20 of the WCIM Act, in the following terms:
(3a) It is a defence to a prosecution for an offence under this section of failing to comply with section 160(1) or (2) in respect of a worker if the court is satisfied that at the time of the alleged offence the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 20 the worker's employment was not connected with [this Territory].
(3b) If the employer's belief on reasonable grounds was that under section 20 the worker's employment was connected with another State, subsection (3a) does not apply unless at the time of the alleged offence the employer had workers' compensation cover in respect of the worker under the law of that other State.
40 While these provisions may exculpate an uninsured employer from criminal prosecution, they do not affect the civil liability of an employer who does not have insurance because it thought the worker's employment was connected with another State or Territory.
41 If a worker connected with the Territory is injured, the worker may seek to recover from the employer directly. The employer will then be subject to a potentially substantial uninsured liability.
42 Alternatively, instead of seeking to recover from an uninsured employer, an injured worker may seek payment of an award of compensation and damages from the Commonwealth under s 174(1) of the WCIM Act. Section 174(6) - s 174(8) provide for a certificate showing the amount paid to be filed in, and enforced as a judgment of, a court of competent jurisdiction. Where a worker pursues this avenue of payment from a public fund, the uninsured employer may still be liable for the amount paid.
Evidence
43 In the District Court, the appellant relied on two affidavits of Malyar Dehsabzi, the sole director of the appellant. Mr Dehsabzi was not cross-examined on those affidavits.
44 In his first affidavit, Mr Dehsabzi deposed that the appellant carries on business providing interpreting and translating services. He said that the appellant's 'head office', at which he was personally based, was located at Suite 1, Level 4, 91 George Street, Parramatta, New South Wales. He said that the appellant also had an office located in Melbourne, Victoria. Mr Dehsabzi deposed as to the periods during which the respondent worked in Victoria and on Christmas Island.
45 In his second affidavit, Mr Dehsabzi said that the appellant had eleven employees working from the office in Parramatta and two employees working from the office in Melbourne. He deposed that the appellant also leased serviced offices in Perth, Western Australia and in other States, but there were no employees in those offices. He said that the serviced offices 'are there so we have an office to use when attending those States'. The appellant did not have an office on Christmas Island.
46 Mr Dehsabzi deposed that he worked at the appellant's Parramatta office and that all ultimate decisions in relation to the appellant's operations were his responsibility. He said that the employees working in the offices in Victoria were responsible to him.
47 The respondent relied on two affidavits which he had sworn, in which he accepted that the appellant's head office was in New South Wales, but said that he had worked in Melbourne and on Christmas Island. He said that he had never been to any of the appellant's offices, was not based in any specific office and had no special ties to any specific office. He said that the nature of his job required him to be 'in the field' and carry out his duties in remote locations. He communicated with the appellant by telephone and email.
The primary judge's decision
48 The primary judge's reasons for concluding that the evidence did not establish any principal place of business of the appellant, in the sense he construed the phrase, were as follows:17
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.
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.
Ground of appeal
49 The appellant relies on the following ground of appeal:
His Honour erred in fact and law in finding at paragraph 24 of his reasons that the evidence did not establish that New South Wales was the State in which the appellant's principal place of business was located for the purposes of section 20(4)(c) of the [WCIM Act].
Particulars
1. His Honour erred in law when he concluded (at paragraph 24) that the 'administrative arrangements' referred to by His Honour at paragraph 23 of his Honour's reasons was irrelevant to a finding as to whether there was a State or Territory in which the appellant's principal place of business in Australia was located.
2. His Honour should have concluded that the 'administrative arrangements' referred to by His Honour at paragraph 23 of his Honour's reasons were directly relevant to a finding as to whether there was a State or Territory in which the appellant's principal place of business in Australia was located.
3. His Honour erred in fact or as a mixed matter of law and fact in finding that the evidence did not establish that there was any State or Territory in which the appellant's principal place of business was located.
4. If his Honour had taken into account the 'administrative arrangements' referred to by His Honour at paragraph 23 of his Honour's reasons and the respondent's concession that the appellant's headquarters were located in New South Wales, His Honour would have:
(a) found as a fact that the appellant's headquarters were in New South Wales;
(b) found as a fact or as a mixed matter of law and fact that the appellant's principal place of business was in New South Wales;
(c) determined as a matter of law that New South Wales was the 'State of connection'.
5. His Honour erred in law in not construing the provision in s 20(4)(c) of the Act 'employer's principal place of business in Australia' as a place in Australia where:
(a) an employer's high level officers direct, control and co-ordinate its activities; or
(b) an employer's actual centre of overall direction, control and co-ordination is located; or
(c) an employer's central management and control is located.
6. In the alternative to paragraph 5 herein, His Honour erred in law in not construing the provision in s 20(4)(c) of the Act 'employer's principal place of business in Australia' as a place in Australia which can be identified as the centre or focus of an employer's activities.
7. If His Honour had properly construed the provision in s 20(4)(c) of the Act 'employer's principal place of business in Australia', His Honour would have found that the Appellant's principal place of business in Australia was 91 George Street, Parramatta, New South Wales and determined that New South Wales was the 'State of connection'. (original emphasis)
50 The respondent objected to the appellant's application at the hearing to amend the particulars by the introduction of particular 7 on the ground that the issue had not been raised in the District Court. The respondent contended that he was thereby denied the opportunity to adduce evidence responding to factual contentions advanced in support of the particular in pars 12(b) - (d) of the appellant's amended submissions. The matters referred to in pars 12(b) - (d) are not of any material significance and, as explained below, the contention in particular 7 is made out by other uncontroversial evidence. Counsel for the respondent accepted that there was no prejudice by reason of a loss of opportunity to adduce evidence in these circumstances.18 In the absence of any real prejudice to the respondent, leave should be granted to amend the ground of appeal to include particular 7.
Matters in issue
51 The appellant does not challenge a number of aspects of the primary judge's decision.
52 The appellant accepts that the primary judge correctly understood that s 20 of the WCIM Act 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.19 The primary judge agreed with what was said in that regard by Commissioner Herron in Tamboritha Consultants Pty Ltd v Knight.20
53 The appellant also accepts that the primary judge correctly concluded that there was no State or Territory in which the respondent usually worked in his employment with the appellant, for the purposes of the WCIM Act.21 This matter was, however, agitated by the respondent in his notice of contention, considered later in these reasons.
54 The appellant accepts that the primary judge correctly concluded that there was no State or Territory in which the respondent was usually based for the purposes of his employment with the appellant, for the purposes of the WCIM Act.22 The respondent did not challenge his Honour's conclusion on this point.
55 The appellant did not challenge the primary judge's conclusion that the respondent's injury was alleged to have occurred on Christmas Island. It accepted that there was no evidence of a place outside Australia where legislation entitled the respondent to receive compensation for the same matter.23
56 It follows that, subject to the matter raised by the respondent's notice of contention, the respondent's employment will be connected with the Territory (where the accident occurred) unless the appellant's principal place of business in Australia is located in another State or Territory. That is, the only aspect of the primary judge's decision which the appellant seeks to challenge in this appeal is the conclusion that the evidence did not establish that there was any State or Territory in which the appellant's principal place of business in Australia was located.24
57 The appellant originally accepted that the primary judge correctly found that the reference to the 'principal place of business' in s 20(4)(c) of the WCIM Act is to the 'chief, most important or main place of business from where the employer conducts most or the chief part of its business'.25 That approach, adopted from Tamboritha Consultants,26 was also reflected in the decision of Higgins CJ in Avon Products Pty Ltd v Falls.27 However, on appeal from Higgins CJ's decision, the Court of Appeal of the Australian Capital Territory took a different approach which focused on the location of Avon's head office (although the matter was conceded).28 In Energo Form ACT Pty Ltd v Beljan,29 Penfold J saw the test applied in Tamboritha Consultants as a useful summary of the appropriate test. However, Penfold J gave emphasis to the words 'from where' in that formulation. She did not think that the critical question was directed to the place 'at which' the employer does most of the relevant work.
58 At the initial hearing of this appeal the appellant resiled from its concession as to the proper construction of the phrase 'principal place of business' in s 20(4)(c) of the WCIM Act. The hearing was adjourned to enable the appellant to amend its ground of appeal and for revised submissions to be prepared. Following that process, the ground of appeal and its particulars raise the following three issues:
1. Did the primary judge err by treating the evidence as to the appellant's 'administrative arrangements' as irrelevant to the location of its principal place of business in Australia (particulars 1, 2 and 4)?
2. Did the primary judge err in construing the term 'principal place of business in Australia' in s 20(4)(c) of the WCIM Act (particulars 5 and 6)?
3. Applying the proper construction of s 20(4)(c), did the primary judge err in finding that the evidence did not establish that there was any State or Territory in which the appellant's principal place of business in Australia was located (particulars 3 and 7)?
Issue 1: whether 'administrative arrangements' disregarded
59 There is no substance to particulars 1 or 2. Those particulars proceed from the premise that the primary judge regarded the 'administrative arrangements' to be irrelevant, and did not take those arrangements into account. That is not a fair construction of the reasons of the primary judge quoted above. He did not hold that the arrangements were irrelevant to the question; merely that those arrangements did not indicate any place from where the appellant conducts most or the chief part of its business. He expressly took those arrangements into account but held that they did not provide the answer to the statutory question.
60 Particular 4 is also expressed to depend on that premise. Whether the primary judge should have made findings in accordance with subpars (a) - (c) of particular 4 will be considered when dealing with particulars 3 and 7. It is appropriate to determine the proper construction of s 20(4)(c) of the WCIM Act before proceeding to consider whether the evidence before the primary judge required him to make certain findings in applying that provision.
Issue 2: proper construction of s 20(4)(c)
Parties' contentions
61 The appellant contends that the reference to the employer's principal place of business is to the place from which the business activities of the employer were principally controlled and managed. The appellant contended that, on the evidence, its business was clearly controlled and managed principally from its Parramatta office, which was therefore its principal place of business. Thus the respondent's employment was connected with New South Wales, being the State in which the principal place of business was located.
62 The respondent contends that the reference to the employer's principal place of business is to the place where the 'employer's main place of business activities is located'. The place contemplated by the respondent's construction was the geographic area of a State or Territory, rather than a place within a State or Territory. In determining the principal place of business it was necessary to have regard to a myriad of factors, including the place from where business activities were controlled, the source of revenue and profit before income tax, and the number of employees working at different locations.
Approach to statutory interpretation
63 The proper construction of the relevant statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'.30
64 Those rules require primary attention to be directed to the text of the relevant provisions.31 There must be regard to the language of the statute viewed as a whole, considered in its context.32 An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions).33 Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not do so.34
65 The importance of the text of the statute in the interpretative exercise was emphasised in a series of decisions of the High Court quoted by this court in Baker v His Honour Judge Stone.35It is thereforeappropriate to begin by dealing with the text of the statute.
Single 'principal place of business' in a State
66 Section 20(4)(c) of the WCIM Act refers to 'the State [or Territory] in which the employer's principal place of business in Australia is located'. The reference is to a place in a State and in Australia. The reference is not to a place which is a State. This language contemplates a particular place in a State which is the principal place of business.
67 The reference to a place in a State counts against a construction which identifies the place where most of the business activity conducted by the employer occurs. Many employers will conduct business at a number of different places.
68 For example, the employer may manufacture goods at a factory, sell those goods from a series of showrooms, and install the goods at a customer's premises. A business providing plumbing, electrical or like services may have premises from which work is dispatched, administrative tasks performed and equipment stored. However, most of the services will be provided at the premises of a diverse range of customers. The customer's premises will not, on any ordinary understanding of the term, form part of the employer's principal place of business.
69 In the above examples, even if the State from which the business mostly operates is readily identifiable, the place within the State at which most business activity is carried out may be very difficult to ascertain due to the diverse locations where those activities are undertaken. In these examples, the employer may have no principal place of business in a State, if the phrase refers to the place where business activities are principally carried out, even though there is only one State in which most of the employer's business is conducted.
70 The above considerations count against the reference to a single place in a State or Territory which is the principal place of business being the principal place where business activities occur. Rather, the reference to a single place strongly suggests that what is contemplated is the principal place from which business activities are managed or controlled.
Readily ascertainable criterion
71 It is also notable that the other tests posited by s 20 involve the application of an objective criterion to readily ascertainable facts. In most cases the State or Territory in which a worker usually works or is usually based will be readily identifiable. The State or Territory in which a ship was registered, or most recently registered, is also a readily identifiable objective criterion.
72 While there may be difficult cases at the margins on any test, the general legislative policy evidenced in the terms of s 20 of the WCIM Act is to select criteria which are objective and readily identifiable in most cases. The other parts of s 20 thereby suggest that the employer's 'principal place of business' should be readily identifiable by objective criteria. A construction which looks to the place from where business activities are principally managed or controlled - the 'head office' - satisfies that objective in the vast majority of cases.
Insurance obligations
73 Section 20 appears in a context where the employer has a statutory obligation to obtain insurance in respect of its liability to pay compensation under the WCIM Act to any worker employed by the employer.36 Under s 20(2), compensation under the WCIM Act is only payable in respect of employment that is connected to the Territory. The construction of s 20 affects not only the liability of an employer to pay compensation to a worker, but also the obligation of an employer to hold insurance for that liability.
74 The parties agreed that the time at which the District Court was required to determine the State of connection in this case was the time when the respondent claimed to have sustained an injury compensable under s 18 of the WCIM Act. It will also be necessary for an employer to consider that question when deciding to obtain or renew insurance. This will be at a time prior to the time when the relevant business activity is to be undertaken. When obtaining insurance, the employer is required to provide information as to the remuneration paid to workers covered by the insurance,37 which will require the identification of the workers whose employment is connected with the Territory.
75 The relationship between the operation of s 20 and the insurance obligation is also indicated by s 170(3a) and s 170(3b) of the WCIM Act, referred to above.
76 An employee's connection with the Territory may need to be established in a prosecution for an offence against s 170(1) of failing to obtain relevant insurance or knowingly providing false information as to remuneration. There will be no obligation to insure if a worker's employment is not connected with the Territory, because if the employment is not so connected the employee can have no liability under the WCIM Act in relation to the worker. Further, determination of the maximum penalty and the premiums avoided for penalty purposes will require the workers connected with the Territory to be identified. Section 20 has public law as well as private law consequences.
77 If an employer fails to appreciate its worker's connection with the Territory and the worker is injured, the employer may be exposed to an uninsured liability. If the injury to the worker is serious, the extent of the liability may be substantial. The employer will be exposed to that civil liability even if the employer may have a defence to a prosecution under s 170(3a) of the WCIM Act.
78 The above provisions of the WCIM Act relating to insurance count in favour of construing s 20 in a manner which produces an objective test and allows the State or Territory with which a worker's employment is connected to be readily identified.
Purpose
79 It is evident from the provisions referred to above that a purpose of s 20 is to provide for one identifiable State or Territory with which a worker's employment is connected, and to require the employer to obtain insurance for its potential liability to the worker in that State or Territory.
80 The purpose of providing for a single State or Territory of connection is also evident from the status of s 20 of the WCIM Act as part of a national legislative scheme. While the language used is not precisely the same in all cases, provisions corresponding to s 20 exist in other Australian States and Territories.38 The task under each corresponding provision is to identify a single State or Territory with which a worker's employment is connected.
81 It is also evident from the terms of s 23D that the questions posed in s 20 of the WCIM Act, and corresponding provisions of other jurisdictions, will identify a single State or Territory with which a worker's employment is connected. Once a determination is made that the respondent's employment is connected to another State or Territory, s 23D provides for that State or Territory to be recognised for the purposes of the WCIM Act as the State with which the worker's employment is connected. In those circumstances, s 23B(2) and s 23C(3) of the WCIM Act will preclude a court from applying s 20 to conclude that the worker's employment is also connected with Christmas Island.
82 That the WCIM Act provides for a single State of connection suggests that the relevant place should be readily and objectively identifiable. This is so that an employer can reliably determine the insurance which it is required to obtain and a worker can reliably determine the State or Territory in which he or she may make a claim for workers' compensation.
83 Uncertainty as to the State or Territory in which a disputed claim should be made will tend to delay the resolution of the claim, while the injured worker remains deprived of his or her regular income. Although s 23B of the WCIM Act provides a mechanism for a court to determine the question of connection, the object of providing for the hearing and determination of disputes in a manner that is economical and quick39 will be advanced if the relevant place is readily and objectively ascertainable.
84 There is no evident statutory purpose to be advanced by defining the principal place of business by reference to the State or Territory in which most of the employer's business activities are conducted.
Parliamentary material
85 The Parliamentary material related to the enactment of s 20 of the WCIM Act in its present form supports the existence of the purpose identified above by reference to the terms of the legislation.
86 Section 20 of the WCIM Act was inserted when the amendments introduced by the Workers' Compensation and Rehabilitation Amendment (Cross Border) Act 2004 (WA) (Cross Border Act) were picked up by s 8A of the CI Act.
87 The explanatory memorandum to the Bill for the Cross Border Actbegins by stating the Bill's purpose in the following terms:
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' [sic] 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.
88 The explanatory memorandum went on to explain that:
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.
89 It is apparent that the Cross Border Act was not intended to provide for nationally uniform workers' compensation legislation. However, a purpose of the amendment was to increase certainty as to which of the multiplicity of Australian workers' compensation schemes would be applicable to a given employer-employee relationship, in light of differences in substantive law between jurisdictions.
90 The importance of certainty was also emphasised in the Minister's second reading speech to the Bill for the Cross Border Act. The Minister observed:40
The reforms contained in the Bill will give employers with workers in different jurisdictions clear guidelines on their workers compensation responsibilities. It also provides injured workers with increased certainty about their workers compensation entitlements and common law rights.
The reforms will reduce the burden currently being placed on Western Australian employers of having to obtain workers compensation coverage for a worker in more than one jurisdiction. It will also mean Western Australian workers undertaking employment related activities temporarily in another jurisdiction will be covered by Western Australia's workers compensation scheme for a period of up to six months.
Appellant's construction promotes certainty
91 If the reference to 'principal place of business' in s 20 is to the place where most of the employer's business activities are carried out, uncertainty will arise in a number of respects.
92 In that event, it would be necessary to consider how the extent of the relevant business activity is to be measured. Is it to be by the cost to the employer of undertaking the activity? Or the net profit generated by the relevant activity? Or the revenue generated by the activity? Alternatively, is the extent of the activity to be measured by its volume, and if so how is the volume to be measured? Could volume be measured by the number of employees engaged in the activity at particular locations, or by the volume of work undertaken or goods produced? However the extent of activity is measured, it will need to be applied to a very wide range of industries and business structures, and any one test may not be readily applied to all situations. For example, how would the principal place of business of a transport company operating heavy vehicles across Australia be determined?
93 The respondent's proposed construction of s 20(4)(c) would require a wide range of factors to be considered and balanced against each other by a court determining an application under s 23C, an employer determining what insurance to obtain and what information must be provided to the insurer, a court determining criminal liability and penalties under s 170, and a worker making a claim for workers' compensation.
94 By contrast, the principal place from which the business activities are managed or controlled, or 'head office', will be much easier to identify in the vast majority of cases. A factual inquiry about the place where the central control and management of the business resides will generally be more confined than an inquiry about the places where business activities occur and a comparison of the amount of activity carried out in different places.
95 The 'head office' will also, as a matter of practicality, be easier in most cases for both employers and workers to identify than the place from where most business activities are carried out. This will be so even if there is a single means of measuring business activity.
96 Where an employer's business operates from a variety of locations, the employer may not know with certainty where the most activity occurred before accounts are completed. Decisions about what insurance should be obtained need to be made before the insured activity is undertaken. When seeking to insure future liability to workers, most employers will have some estimate of the cost and volume of their proposed activities, and the value generated by those activities. However, the actual outputs or costs may not reflect the estimates and in some cases it may be impossible to make a reliable prediction. On the respondent's construction it would be necessary for an employer to keep all aspects of its operation under continual review to see if the location where most business activity is carried out has changed.
97 In contrast, most businesses will be able to readily identify their head office.
98 Identifying the particular place from where an employer conducts most of its business activities will be more difficult for an injured worker, even after the business activity has been undertaken. A worker may have no means of knowing where his or her employer conducts most of its business activity, and will generally not have access to the business accounts and records which may enable a conclusion to be reached about that matter. On the other hand, most workers will be able to identify their employer's principal place of business, by reference to the ultimate source of the instructions they receive, the address used in the employer's correspondence or public registers such as that maintained under s 1274 of the Corporations Act 2001 (Cth).
99 The purpose of achieving certainty is advanced by a construction of 'principal place of business' which looks to the place from where the business is principally managed or controlled, rather than one which looks to the place where most business activity occurs.
United Kingdom and Australian authority
100 The appellant submits that, outside the sphere of workers' compensation legislation, the long established and uncontroversial meaning attributed to the phrase 'principal place of business' by courts in the United Kingdom and Australia signifies the place from which the business of a company is controlled and managed. The appellant refers to a line of authority which it contends begins with Palmer v Caledonian Railway Company,41 and ends with Queensland Building and Construction Commission v Robuild Pty Ltd.42
101 The appellant's characterisation of the authorities to which it refers overstates the position. Many of the authorities referred to deal with phrases other than 'principal place of business'. Palmer and Robuild are both concerned with statutes allowing service of process on a 'principal office' of a corporation. Most of the Australian cases referred to deal with identifying where a corporation is 'resident' or 'resides'. All of the cases are decided in very different statutory contexts. The cases to which the appellant refers do not establish an uncontroversial general meaning for the phrase 'principal place of business'.
102 There is some support for the appellant's argument in cases decided in the United Kingdom to which I shall refer, but the utility of those cases is limited by the different statutory context in which the phrase appeared.
103 In Palmer,a railway company incorporated in Scotland was served with a writ alleging false imprisonment and breach of contract, at the Carlisle office of a district traffic superintendent. The head office of the company was located in Glasgow. On an application to set aside service of the writ, the company contended that Carlisle was not 'the principal office of the company, or one of their principal offices where there shall be more than one' for the purposes of legislation allowing service at such a place.43 Lord Esher MR observed:
I should have thought without any authority that the principal office of the company must be the place at which the business of the company is controlled and managed. The only office that answers this description is the company's office at Glasgow. No part of the business of the company is controlled or managed, in the sense that it is independently controlled or managed, at Carlisle. The directors meet at Glasgow, and the office from which and through which they manage the business of the company is at Glasgow. If the expression 'principal office' means the office at which the business of the company is managed, it does not apply to Carlisle; and the service of the writ at the office there was not a service at the principal office of the company, and must be set aside (827 - 828).
104 As noted above, the court in Palmer was construing a different phrase than that used in s 20 of the WCIM Act. However, the comments of Lord Esher MR were seen as being of assistance by the English Court of Appeal in The Polzeath (No 2).44 In that case the liability of a ship to forfeiture under wartime provisions turned on whether it was owned by a body corporate 'established under and subject to the laws of some part of Her Majesty's dominions, and having their principal place of business in those dominions'. After referring to Palmer, Swinfen Eady LJ applied the following test to determine that the principal place of business of the owner of the ship was in Hamburg:
And so here, in considering what is the principal place of business of the company, one has to consider the centre from which instructions are given, and from which control is exercised on behalf of the company over the employees of and the business of the company, and where control is exercised, and the centre from which the company is managed without any further control except such control as every company or the directors of a company are liable to by the larger body which they represent, the shareholders of the company in general meeting (245).
105 The observations in Palmerand The Polzeath (No 2) were applied by the English Court of Appeal in The Rewia.45 In that case the owners of a vessel sued in England objected to jurisdiction. The objection was based on a jurisdiction clause in the relevant bill of lading providing that disputes under the bill should be decided in the country 'where the carrier has its principal place of business'. While the ship was managed from Hong Kong, the shipowners alleged that their principal place of business was in Hamburg. While it was not necessary to decide the matter in that case, Leggatt LJ, with whom Dillon LJ agreed, said that the principal place of business was in Hamburg, on the basis that the business of the owner was independently controlled and managed from that city.
106 More recent decisions in the United Kingdom have construed the phrase 'principal place of business' in art 60 of Council Regulation (EC) No 44/2001.46 Article 60 defines the 'domicile' of a corporation as the place where it has its 'statutory seat, or central administration, or principal place of business'. The significance of the definition is that English courts cannot decline to exercise jurisdiction on grounds of forum non convenienswhere a defendant is domiciled in England. The decisions have applied the approach in The Rewia in considering this question.47
107 These cases provide some support for the appellant's argument, although their significance is limited by the different contexts in which they were decided.
United States experience
108 The greater certainty which the appellant's construction of the phrase 'principal place of business' promotes is illustrated by the experience of the United States courts in relation to federal diversity jurisdiction.
109 In contrast to s 75(iv) of the Australian Constitution, s 2 of art III of the United States Constitution does not automatically confer diversity jurisdiction on any federal court. Rather, it authorises Congress to do so and, in doing so, to determine the scope of the federal courts' jurisdiction within constitutional limits.48 In 1958, Congress passed legislation providing that a corporation is a 'citizen' of the state of its principal place of business, for diversity purposes.
110 Prior to 2010, different courts in the United States had adopted different approaches to determining the principal place of business of a corporation. Some had adopted a 'nerve center test' directed to the place from which the corporation's business is directed or controlled. Other courts focused more heavily on where a corporation's actual business activities are located. Some courts combined aspects of the 'nerve center' and 'business activity' tests to look to a corporation's 'total activities'. The 'total activities' test appears closest to that proposed by the respondent in the present case, while the 'nerve centre' test is closest to that proposed by the appellant in this case.
111 That history is described in Hertz, where the Supreme Court resolved the question by holding:
[W]e conclude that the phrase 'principal place of business' refers to the place where the corporation's high level officers direct, control, and coordinate the corporation's activities. Lower federal courts have often metaphorically called that place the corporation's 'nerve center' … We believe that the 'nerve center' will typically be found at a corporation's headquarters (80 - 81). (original emphasis) (citations omitted)
112 The Supreme Court reached this conclusion largely by reference to considerations of administrative simplicity, which legislative history suggested was a purpose of the legislation.
113 As to administrative simplicity the Court observed:
A 'nerve center' approach, which ordinarily equates that 'center' with a corporation's headquarters, is simple to apply comparatively speaking. The metaphor of a corporate 'brain,' while not precise, suggests a single location. By contrast, a corporation's general business activities more often lack a single principal place where they take place. That is to say, the corporation may have several plants, many sales locations, and employees located in many different places. If so, it will not be as easy to determine which of these different business locales is the 'principal' or most important 'place' (95). (original emphasis)
114 Of course, Hertz is not an authority of a court of this country, and the Supreme Court was construing a different statute, enacted for a different purpose in a different legal setting. There are also important textual differences between the provisions. Most notably, the legislation considered in Hertz did not require the court to ask the cascading series of questions set out in s 20 of the WCIM Act, and contemplated that a corporation must have a principal place of business. There can be no unthinking application of what was said in Hertz to the WCIM Act.
115 The significance of Hertz for the present case is that the experience in the United States is that a construction of the phrase 'principal place of business' which focuses on the principal place from which business activities are controlled offers much greater simplicity and certainty than a construction focusing on the place at which the business activities are principally carried out.
Workers' compensation cases
116 As I have noted, the primary judge adopted the construction of 'principal place of business' explained by the District Court in Tamboritha Consultants.Commissioner Herron said in that regard:
The Shorter Oxford English Dictionary defines 'principal' as 'first, chief, original, first or highest in rank, most important, foremost, greatest'. Principal also commonly means 'main'. In my view the expression 'principal place of business' in s 20(4)(c) means the chief, most important or main place of business from where the employer conducts most or the chief part of its business. If the employer is a large national employer conducting business in various States there might not be a principal place of business of the employer for the purposes of s 20(4)(c) as the main, or the most important, or the chief part of the employer's business is conducted from various places. It cannot have been intended by Parliament that in those circumstances the expression 'principal place of business' for the purposes of s 20(4) simply means an entry on a registration form made by an employer and used by ASIC for administrative purposes [66].
117 It was not actually necessary for the court in Tamboritha Consultants to determine the employer's principal place of business, and the Commissioner determined that the worker's employment was usually based in Western Australia. However, he went on to conclude that the employer's principal place of business was also located in Western Australia. He did so by reference to the place in which business activities occurred, rather than the place from which they were managed or controlled.49
118 The approach to the construction of s 20(4)(c) of the WCIM Act adopted in Tamboritha Consultants proceeded from the dictionary definition of the word 'principal'. The various other textual and contextual considerations referred to above were not expressly adverted to in Tamboritha Consultants. Having regard to those other considerations, the preferable view is that the State in which an employer's principal place of business in Australia is located is the State in which the principal place where the employer's business activities are managed or controlled is located.
119 The respondent refers to the observation that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation or non-statutory law unless convinced that the interpretation is plainly wrong.50 An intermediate appellate court for these purposes is:
1. a Court of Appeal of an Australian State or Territory;
2. a Full Court of the Federal Court of Australia or the Family Court of Australia; or
3. a Full Court of the Supreme Court of an Australian State or Territory.
120 The only decision of a Court of Appeal or Full Court to which we have been referred is that of the Court of Appeal of the Australian Capital Territory in Avon Products. As noted above, that decision identified the head office of Avon as its principal place of business.51
121 Assuming that the principle referred to in Farah Constructions applied to s 20 of the WCIM Act and its corresponding provisions in other States and Territories, there is no decision of an intermediate appellate court which rejects the appellant's submission.
Conclusion as to issue 2
122 Having regard to all of the above matters, the phrase 'the State in which the employer's principal place of business in Australia is located' should be construed as referring to the State or Territory in which the principal place from which the business activities of the employer are controlled or managed is located. It is not a reference to the State or Territory in which those business activities principally occur.
123 Proceeding as it did, the District Court misconstrued s 20 by regarding the phrase 'principal place of business' as meaning the 'chief, most important or main place of business from where the employer conducts most or the chief part of its business' [22]. The District Court was incorrect to find that the answer to this question turned not on administrative arrangements, but on evidence as to the amount or extent of the translating and interpreting business carried on by the appellant in each of the States and Territories in which it operates.
Issue 3: location of the appellant's principal place of business
124 The evidence adduced by the appellant did not address in any meaningful way the location where those it engaged performed translation and interpretation services. However, the evidence made it clear that the appellant's business activities were controlled and managed from its head office in Parramatta. It is from that place that Mr Dehsabzi, the sole director of the appellant, works and makes all ultimate decisions in relation to the appellant's operations.
125 It follows that the primary judge should have found the appellant's principal place of business to be located in New South Wales and, subject to the issue raised by the respondent's notice of contention, the respondent's employment to be connected with that State.
Notice of contention
126 There is no merit in the respondent's notice of contention, which argues that the primary judge erred in holding that there was no single State in which the respondent 'usually worked' for the purposes of s 20(4)(a) of the WCIM Act.
127 The situation in the present case is, in many respects, analogous to that considered by the Court of Appeal of the Australian Capital Territory in Avon Products. In Avon Products the worker carried out duties of her employment both in the Australian Capital Territory and in New South Wales. The Court of Appeal held that there was no one jurisdiction in which the worker was usually employed for the purposes of corresponding legislation of the Territory.
128 In the present case, as a matter of fact, the respondent worked in both Victoria and Christmas Island in his employment with the appellant. He worked on roughly the same number of days in each jurisdiction (77 working days on Christmas Island compared to 71 working days in Victoria).
129 The respondent referred to the comparative amount of remuneration he earned in each location. However, s 20(4)(a) directs attention to the location where work takes place. The comparative remuneration earned in each location is irrelevant.
130 The respondent had worked on Christmas Island over three periods between commencing employment on 20 October 2010 and the date of his injury on 22 October 2011. Those periods were:
1. 20 October 2010 to 19 November 2010;
2. 5 August 2011 to 4 September 2011; and
3. 8 October 2011 to 22 October 2011.
131 Assuming that account can be taken of the periods spent by the respondent working on Christmas Island, it cannot be said that he usually worked in the Territory for the purposes of s 20(4)(a) of the WCIM Act. The issue raised by s 20(4)(a) is not where the worker works the most. The question is whether there is a State or Territory in which the respondent usually worked. As his periods of work were divided between Victoria and Christmas Island, and his time on Christmas Island was limited to the three periods referred to above, it cannot be said that the respondent usually worked on Christmas Island.
132 Further and in any event, there is a more fundamental problem with the argument advanced in the notice of contention. Section 20(7) prohibits a court deciding whether a worker usually works in a State from having regard to 'any temporary arrangement under which the worker works in a State for a period of not longer than 12 months'.
133 The respondent submitted that the reference to 'temporary arrangement' was to a temporary contractual arrangement, which requires some break of the employment contract. This submission is directly inconsistent with the language used in s 20 of the WCIM Act. Section 20(7) identifies mandatory relevant and irrelevant considerations for a court considering the question posed by s 20(4)(a) of the WCIM Act. Section 20(4)(a) requires identification of the State in which the worker usually works 'in that employment'. Section 20(4) is therefore directed to a single employment relationship between the employer and worker.
134 In that context, the reference to 'temporary arrangement' must be to a temporary arrangement, within the term of an employment relationship, as to the location from which the worker will carry out his or her work. So, for example, if a worker is engaged to work in a single State or Territory throughout the term of his or her contract of employment, then s 20(7) does not prevent a court from concluding that the worker usually works in that State or Territory even if the term of the engagement is less than six months. In such a case, of which Weir Services Australia v Allianz Australia Insurance Ltd52is an example, there is no temporary arrangement within the term of the employment relationship.
135 However, in the present case the respondent was never permanently assigned to work on Christmas Island. Rather, the evidence was that, during the term of his employment with the appellant, the respondent had been assigned to work on Christmas Island for only the three periods referred to above, prior to his injury.
136 There was no period of more than six months during which the respondent was working on Christmas Island and no evidence of any permanent assignment to work on the Island. In those circumstances there was no basis for having regard to three short periods to support a conclusion that the respondent usually worked on Christmas Island. Such an approach would have involved the court having regard to matters which s 20(7) of the WCIM Act makes mandatory irrelevant considerations.
137 For the above reasons the submissions made in the notice of contention are rejected. On the evidence it was not open to the primary judge to conclude that Christmas Island was the State or Territory in which the respondent usually worked in his employment with the respondent.
Orders
138 For the above reasons, I would make the following orders:
1. The appellant be granted leave to amend its ground of appeal in terms of particular 7.
2. The appeal be allowed.
3. The orders of the District Court made in CIVO 191 of 2013 on 4 August 2014 be set aside and there be substituted orders that:
(a) New South Wales is determined to be the State with which the defendant's employment with the plaintiff is connected.
(b) This determination be entered into the records of the District Court of Western Australia pursuant to s 23C(2) of the Workers' Compensation and Injury Management Act 1981 (WA)(CI).
1Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2014] WADC 99.
2 See ChewYee v The Queen (1962) 3 FLR 177; Chong v The Queen (1989) 40 A Crim R 22.
3 By the Territories Law Reform Act 1992 (Cth) and the Indian Ocean Territories (Administration of Laws) Act 1992 (WA).
4 By s 8E of the CI Act, Commonwealth Acts extend to the Territory of their own force except so far as the Act or another Act expressly provides otherwise.
5 Made under s 9 of the CI Act.
6 Specified in s 8 of, and the Schedule to, the CI Act.
7 Section 8A(2) of the CI Act.
8 Section 8C of the CI Act.
9 This provision generally avoids the need to undertake the constructional exercise which faced the Full Court of the Supreme Court in Commonwealth v Christmas Island Resort Pty Ltd (1998) 158 ALR 699.
10 Section 8G(1) and (2) of the CI Act.
11 Section 8G(3) of the CI Act.
12 See s 8G(5)(b) and 8H of the CI Act and s 6 of the Indian Ocean Territories (Administration of Laws) Act 1992 (WA).
13 The modification is to insert s 160A and 160AA into the WCIM Act, which relate to transitional provisions as to workers' compensation insurance.
14 Section 14B of the CI Act and s 11 of the Indian Ocean Territories (Administration of Laws) Act 1992 (WA).
15 Section 4(1) of the CI Act (definition of 'court of Western Australia').
16 Section 5 of the WCIM Act (definition of 'State').
17Ethnic Interpreters [23] - [24].
18 ts 24.
19Ethnic Interpreters [6].
20Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78; (2008) 58 SR (WA) 291 [15].
21Ethnic Interpreters [7] - [16].
22Ethnic Interpreters [17] - [20].
23Ethnic Interpreters [25].
24Ethnic Interpreters [23] - [24].
25Ethnic Interpreters [22].
26Tamboritha Consultants [66].
27Avon Products Pty Ltd v Falls [2009] ACTSC 141; (2009) 236 FLR 212 [55].
28Avon Products Pty Ltd v Falls [2010] ACTCA 21; (2010) 5 ACTLR 34 [33].
29Energo Form ACT Pty Ltd v Baljan [2015] ACTSC 257 [71].
30Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 [28].
31Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
32Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Plaintiff S4/2014 v Minister for Immigration [2014] HCA 34; (2014) 312 ALR 537 [42].
33Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26]; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21].
34 Section 18 of the Interpretation Act 1984 (WA)(CI).
35Baker v His Honour Judge Stone [2015] WASCA 56[36] - [37].
36 Section 160(1) of the WCIM Act.
37 Section 160(2) and s 160(2b) of the WCIM Act.
38 See s 9AA of the Workers Compensation Act 1987 (NSW); s 10 of the Return to Work Act 2014 (SA); s 113 of the Workers' Compensation and Rehabilitation Act 2003 (Qld); s 53AA of the Return to Work Act (NT); s 31A of the Workers Rehabilitation and Compensation Act 1988 (Tas); s 36B of the Workers Compensation Act 1951 (ACT). Different provision is made by s 7 of the Workers Compensation Act 1958 (Vic).
39 Section 3(d) of the WCIM Act.
40 Western Australia, Parliamentary Debates, Legislative Assembly, 13 May 2004, 2923 (Mr J C Kobelke, Minister for Consumer and Employment Protection).
41Palmer v Caledonian Railway Company [1892] 1 QB 823.
42Queensland Building and Construction Commission v Robuild Pty Ltd [2014] QCA 81.
43 The provision is reproduced at Palmer(826).
44The Polzeath (No 2) [1916] P 241.
45The Rewia [1991] 2 Lloyd's Rep 325.
46 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12.
47889457 Alberta Inc v Katanga Mining Ltd [2008] EWHC 2679 (Comm) [18], [22] - [24]; Ministry of Defence and Support of the Armed Forces for the Islamic Republic of Iran v Faz Aviation Ltd [2007] EWHC 1042 (Comm) [5], [26] - [32].
48Hertz Corp v Friend (2010) 559 US 77, 84.
49Tamboritha Consultants [92] - [93].
50Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135].
51Avon Products [33].
52Weir Services Australia v Allianz Australia Insurance Ltd [2013] NSWSC 26 [17] - [21].
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