Fed Consulting Services Pty Ltd v Gelo

[2014] ACTSC 185

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Fed Consulting Services Pty Ltd v Gelo

Citation:

[2014] ACTSC 185

Hearing Date(s):

3 June 2014

DecisionDate:

18 August 2014

Before:

Mossop M

Decision:

See [36]

Category:

Principal Judgment

Catchwords:

WORKERS COMPENSATION – determination of “State or Territory of connection” – definition of “usually works” – whether the regular filling of a truck with petrol in one State is sufficient to establish that the worker usually worked in that State

Legislation Cited:

Workers Compensation Act 1951 (ACT) ss 36A, 36B, 197

Cases Cited:

Avon Products Pty Ltd v Magrit Falls (2010) 5 ACTLR 34; [2010] ACTCA 21
Ferguson v WorkCover Queensland [2013] QSC 78
Hanns Greyhound Pioneer Australia Limited (2006) 196 FLR 361; [2006] ACTSC 5
Martin v R J Hibbens Pty Ltd  (2010) 8 DDCR 535; [2010] NSWWCCPD 83
Tamboritha Consultants Pty Ltd v Knight (2008) 58 SR (WA) 291; [2008] WADC 78

Parties:

Fed Consulting Services Pty Ltd ( Appellant)

Ilija Gelo ( Respondent)

Representation:

Counsel:

Mr R Crowe SC ( Appellant)

Mr A Muller ( Respondent)

Solicitors:

Sparke Helmore ( Appellant)

Slater & Gordon ( Respondent)

File Number(s):

SCA 20 of 2013

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Magistrate Morrison

Date of Decision:         26 March 2013

Case Title:  Fed Consulting Services Pty Ltd v Ilija Gelo

Citation: [2012] ACTMC 3

Introduction

1. This is an appeal from the Magistrates Court conducting an arbitration under the Workers Compensation Act 1951 (ACT) (the Act). The appeal is brought pursuant to s 197 of the Act. The issue before the magistrate was which State or Territory was the relevant State or Territory of connection for the purposes of s 36B of the Act. The dates of the injuries alleged in the parties’ respective applications for arbitration were somewhat confused, however it appears that a frank injury occurred on 19 February 2011 and a nature and conditions injury was alleged to have arisen over the period January 2011 to February 2012.

1. Before his Honour, the issue came down to whether or not the regular filling of a truck with petrol at a service station in Queanbeyan at which the appellant (the Company) had an account was sufficient to warrant a finding that the respondent (Mr Gelo) usually worked in New South Wales. His Honour found that it did not and hence that Mr Gelo usually worked in a single State or Territory, namely the Australian Capital Territory and therefore the Australian Capital Territory was the Territory or State of connection for the purposes of s 36B of the Act. The employer has appealed against that decision.

The decision below

1. His Honour recorded that by agreement between the parties the question to be determined was limited to that of determining the Territory or State of connection for the purposes of s 36B of the Act.

1. His Honour identified the uncontroversial propositions that Mr Gelo was both a director and an employee of the appellant Company.  He also recorded that…