Godford v Oil Drilling and Exploration Pty Ltd
[2001] QDC 355
•19 November 2001
DISTRICT COURT OF QUEENSLAND
CITATION: Godford v. Oil Drilling and Exploration Pty Ltd [2001] QDC 355 PARTIES: PAUL DANIEL GODFORD Plaintiff
and
OIL DRILLING AND EXPLORATION PTY LTD
(ACN 000 385 704) DefendantFILE NO/S: D2305 OF 2000 DIVISION: Civil PROCEEDING: ORIGINATING COURT: DELIVERED ON: 19 November 2001 DELIVERED AT: Brisbane HEARING DATE: 8 November 2001 JUDGE: Judge Samios ORDER: Judgment for the plaintiff against the defendant CATCHWORDS: Conflict of laws – private international law – resident in Queensland injured in course of employment in South Australia – whether action against employer barred by Workers’ Rehabilitation and Compensation Act 1986 South Australia – choice of law – contract – torts
Queensland Workplace Health and Safety Act 1995;
Walker v. W.A. Pickles Pty Ltd (1980) 2 NSWLR 281;
WorkCover v. Smith (unreported) judgment Full Court of Supreme Court of South Australia, 2 October 1998;
Ball-Guymer Ltd v. Lavantar (1992) 102 FLR 326 at 332 per Miles CJ);
Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. (1984) 1 A.C. 50, 60-62, 65, 69-72;
Akai Pty Limited v. The People’s Insurance Company Limited (1996) 188 CLR 418, 434 440-442;
John Pfeiffer Pty Ltd v. Rogerson (2000) 74 ALJR 1109, 1113;
John Kaldor Fabricmaker Pty Ltd v. Mitchell Cotts Freight (Australia) Pty Ltd (1989) 18 NSWLR 172, 181;
Rothwells Ltd (In liq) v. Connell (1993) 119 ALR 538;
James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Limited (1970) AC 583, 603, 606, 611, 614, 615;
Armar Shipping Co Ltd v Caisse Algérienne ďAssurance et de Réassurance The Armar (1981) 1 All E.R. 498, 504-5;
Coupland v. Arabian Gulf Petroleum (1983) 2 All E.R. 434;
Bonython v. Commonwealth (1951) A.C. 201, 219;
Oceanic Sunline Special Shipping Co. Inc. v. Fay (1988) 165 CLR 197, 217, 259-60;Amin Rasheed Shipping Corp v. Kuwait Insurance Co. The Al Wahab (1985) 1 All E.R. 873 per Donaldson MR p. 876.
COUNSEL: Mr Goodwin for the plaintiff
Mr Grant-Taylor S.C. with Mr Morton for the defendantSOLICITORS: Mountfords for the plaintiff
O’Shea Corser & Wadley for the defendant
This is a proceeding brought by the plaintiff in the District Court of Queensland by which he claims against the defendant damages for negligence and/or breach of duty and/or breach of contract of employment.
A claim by the plaintiff for damages for breach of statutory duty (the relevant statute being the Queensland Workplace Health and Safety Act 1995 as amended) was not relied upon by the plaintiff on the hearing before me.
The plaintiff was employed by the defendant as a lease hand at the defendant’s worksite at Rig 32, Santos Oil Lease at Moomba in the State of South Australia (the site).
On or about 5 April 1997 in the course of the plaintiff’s employment with the defendant at the site, in the course of lifting RSJ beams and after having lifted and moved a number of the beams, the plaintiff suffered an injury to his lower back (the incident).
The plaintiff claims the incident was caused by the negligence and/or breach of duty and/or breach of contract of employment of the defendant.
The plaintiff claims that as a result of the negligence and/or breach of duty and/or breach of contract of employment on the part of the defendant, he suffered personal injuries loss and damage for which he claims monetary amounts, particulars whereof are set out in his claim.
The defendant denies liability to the plaintiff. The defendant does so because it alleges that as at the date the plaintiff was injured:-
(a)the plaintiff was “usually employed” within the meaning of that term in the Workers’ Rehabilitation and Compensation Act 1986 (S.A.), in South Australia;
(b) the plaintiff was not “usually employed” in any other State;
(c)in the premises, the Workers’ Rehabilitation and Compensation Act 1986 (S.A.) (the Act) applied to the relationship between the parties;
(d)by section 54 of the Act, no liability attached to the defendant in respect of the matters complained of in the Statement of Claim hereof other than a liability under that Act.
Further, the defendant says s.54 of the Act abolished any entitlement of the plaintiff to recover the damages claimed for the plaintiff’s personal injuries loss and damage.
At the commencement of the hearing before me the parties informed me that liability for the plaintiff’s claims and quantum had been resolved except as to what effect (if any) the Act has on the plaintiff’s claims.
The relevant provisions of the Act are s.6, 30 and 54 which relevantly provide:-
Section 6
Territorial application of this Act(1)This Act applies to a worker’s employment (either within or outside the State) if there is a nexus between the worker’s employment and the State.
(2)A nexus exists between a worker’s employment and a State if-
(a)the worker is usually employed in the State and not in any other State; or
(b)the worker is usually employed in 2 or more State but is based in the State.
(3)In addition, a nexus exists between a worker’s employment and this State if –
(a) the worker is not usually employed in any State; but
(b)the worker is employed in the State or the worker’s employment involves (or is likely to involve) recurrent trips to and from a base in the State, and the worker is not protected against employment-related disabilities by a corresponding law.
In this section –
1. A State includes a Territory.
2.A reference to employment is a reference to the worker’s work (and not to employment as an abstract legal relationship).
3.A worker is usually employed in a particular State if 10% or more of the time the worker spends working in employment is (or is to be) spent working in the State.
4.A worker is based (or has a base) in a particular State if the worker’s usual place of residence is in the State or if the worker regularly travels between a port or other point of embarkation in the State and the place of employment.
Section 30.
Compensability of disabilities(1)Subject to this Act, a disability is compensable if it arises from employment
(2)Subject to this section, a disability arises from employment if –
(a)in the case of a disability that is not a secondary disability or a disease – it arises out of or in the course of employment; or
(b)in the case of a disability that is a secondary disability or a disease –
(i) the disability arises out of employment; or
(ii)the disability arises in the course of employment and the employment contributed to the disability.
Section 54
Limitation of employer’s liability(1)Subject to subsection (2), no liability attaches to an employer in respect of compensable disability arising from employment by that employer except –
(a) a liability under this Act; or
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(2)Subsection (1) does not affect a liability arising out of the use of a motor vehicle, being a liability against which the employer was or ought to have been insured under the law of compulsory third-party motor vehicle insurance.
(3)A court before which an action is brought against an employer for non-economic loss arising from a compensable disability (being a disability that arises out of the use of a motor vehicle and gives rise to a liability of a kind referred to in subsection (2) shall make due allowance for any lump sum paid or payable under Division 5 or 6 to the person by or on whose behalf the action is brought.
The parties agree that the Act has removed a worker’s right to seek against his or her employer damages on a common law basis. However, the plaintiff submitted that in the circumstances there was no nexus between the plaintiff’s employment and the State of South Australia within the meaning of the Act or in the alternative if the Act did apply to the plaintiff, the plaintiff’s claim for damages for breach of contract of employment is unaffected because the proper law of the contract is the law of Queensland.
The defendant submitted that in the circumstances there was a nexus between the plaintiff’s employment and the State of South Australia within the meaning of the Act. Hence s.54 of the Act applied to the plaintiff. The plaintiff submitted that where a claim is brought on a delictual or tortious basis the applicable law is the law of the place of the wrong (John Pfeiffer Pty Ltd v. Rogerson (2000) 74 ALJR 1109). In this case South Australia. Therefore, in so far as the plaintiff in these proceedings relies upon allegations of negligence, the applicable law that I ought to apply is the law of South Australia. Specifically s.54 of the Act and by force of s.30 of the Act the plaintiff having suffered a compensable disability within the meaning of the Act, the plaintiff’s claim in negligence is abolished.
Further, the defendant submitted that in so far as the plaintiff relies upon a breach of contract of employment, his claim on that basis is also abolished. That is because the plaintiff agreed to be bound by the law of South Australia or if it were found there was no agreement to that effect nevertheless the law of South Australia would govern the contractual relationship between the plaintiff and the defendant because that would be the system with which the transaction had it closest and most real connection.
The plaintiff submitted that the onus was upon the defendant to satisfy me that the Act bars the plaintiff’s claim. On the other hand the defendant submitted that the onus was on the plaintiff to satisfy me that the plaintiff’s claim was not barred by the Act.
There was no dispute between the parties about the content of the Act. The content of sections 6 and 54 were tendered as evidence and became exhibits 1 and 2. Later in the proceedings I was given a copy of section 30 of the Act without objection from the plaintiff.
What remains in issue is the applicability of the relevant provisions of the Act to the facts in these proceedings.
In Walker v. W.A. Pickles Pty Ltd (1980) 2 NSWLR 281, the plaintiff, a resident of New South Wales was employed by a New South Wales company pursuant to a contract of employment made in New South Wales. The plaintiff was injured in the course of his employment in Victoria. He sued his employer in a New South Wales court for damages. On appeal to the Court of Appeal of New South Wales Hutley JA. at p.285 said:-
“The principle of private international law (in relation to actions in tort whether the tortious acts occurred abroad) that the local law applies, but the acts relied upon must not be justifiable in the place in which they were done, it seems to me, assimilates the later requirement to an exculpatory fact, and the burden of pleading and proving an exculpatory fact in civil proceedings lies generally upon a defendant.”
Glass JA. at p.289-290 for the reasons expressed in his judgment also held it was for the defendant and not the plaintiff to plead the relevant provisions of State or Territory law. Mahoney JA. was of a contrary opinion. See pp.294-6.
The decision of the majority of the High Court in John Pfeiffer Pty Ltd v. Rogerson has removed the requirement of double actionability in proceedings arising from an intranational tort. The lex loi delicti is now to be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort (see paras. 101 and 102). The decision also requires questions about the kinds of damage, or the amount of damages that may be recovered to be treated as substantive issues governed by the lex loci delicti (para 100).
In my opinion, the limitation of the liability of the defendant pursuant to the Act must therefore be treated as a substantive issue in these proceedings.
When Hutley JA. and Glass JA. in Walker v. W.A. Pickles Pty Ltd expressed their views, they did so on the basis that double actionability was required by law. Nevertheless, in my opinion, the characterisation of the law of the State of Victoria in that case as a exculpatory fact, is appropriate in these proceedings.
Therefore, in my opinion with respect of the plaintiff’s claims based on negligence and/or breach of duty and/or breach of contract of employment the provisions of the Act relied upon by the defendant should be seen as exculpatory of the defendant. However, the burden of pleading (which the defendant has done) and proving this fact lies generally upon the defendant. With respect to all other facts in these proceedings the onus of proof rests upon the plaintiff. That is, the onus of proof that there was a nexus between the plaintiff’s employment and the State of South Australia within the meaning of the Act rests upon the defendant. Otherwise the onus rests upon the plaintiff.
The plaintiff was the only witness to give evidence.
His evidence was that he has lived in Eumundi in Queensland for nearly seven years now. Therefore, before the incident he had lived in Eumundi in Queensland for about two and a half years. He is a carpenter and there was a lull in the building industry. Therefore, in early 1997 he applied for a position with the defendant. He had previously lived and gone to school in the Roma area. Friends from the Roma area who worked with the defendant recommended to the plaintiff that he apply for a position with the defendant. One of his friends from the time when the plaintiff lived in Roma was a personnel officer with the defendant in Toowoomba. The plaintiff contacted this person and that person assisted the plaintiff with his application for a position with the defendant. The plaintiff completed an application form. This form was sent to him in Eumundi and the plaintiff returned it to the defendant’s Toowoomba office. Because the plaintiff knew other employees of the defendant working in Queensland, it was the defendant’s hope to work with those persons in Queensland. The plaintiff said as he knew the personnel officer he presumed that the defendant knew he wanted to work in Queensland in the Roma area where the plaintiff had come from in the past.
The plaintiff said that he was interviewed in Toowoomba and underwent a medical examination in Toowoomba. He was called by the personnel officer whom he knew. He was told that he had a choice of working on a drilling rig in South Australia almost immediately or wait for a position on a “work-over rig” in the Roma area. The plaintiff said that as he wanted to work straight away and be employed, he took up the closest and quickest way of employment. He said the conversation regarding working on a drilling rig in South Australia occurred when he was in Eumundi and the personnel officer was in Toowoomba.
Regarding his prospects of working in the area on a work-over rig he said he remembered that he had a fair chance of that because of the people he knew and that his employment with the defendant was because of the recommendations of these people who were called “tool pushers”. He said these people were the main bosses of a rig in the industry. Notwithstanding the plaintiff’s hope to work in the Roma area and what he thought were his prospects of obtaining work in the Roma area, he went to Moomba South Australia. That occurred when he received a phone call to say he was being employed and was being sent to Moomba. He went to Toowoomba and received his safety gear, returned to his home in Eumundi, and then a week or so later went to Archerfield and flew out to Toowoomba, and then to Moomba.
The plaintiff suffered his personal injuries the subject of his claim about five days later after arriving in Moomba.
The plaintiff said before he left to go to Moomba he had received terms and conditions of employment from the defendant (the terms). He agreed he signed these terms and conditions. He also received an explanatory handout (the handout) from the defendant. Both these documents were tendered as exhibits in the proceedings. The plaintiff thought he received these documents when they were sent to him in Eumundi. In cross-examination he said when he was told he had been accepted, he was asked to come to Toowoomba and that is when he thought he filled out the employment forms such as WorkCover and so on. No issue was taken with the plaintiff’s evidence that is where and when he received the documents and signed the forms.
The plaintiff said that the nature of his work was to work 14 days on a 12 hour shift and at the end of the 14 days cycle be returned to his home. The plaintiff said he had not been told or instructed where he was to go after the first 14 day cycle.
The plaintiff also said that following the injuries suffered by him the subject of this action, he made an application for workers’ compensation to WorkCover Queensland.
There is no dispute in these proceedings that the plaintiff was paid workers’ compensation by WorkCover Queensland for the injuries suffered by the plaintiff in this incident.
The plaintiff alleged in his reply this meant the defendant was estopped from relying upon s.54 of the Act. However, at the hearing before me that plea was not relied upon by the plaintiff.
The amount of time the plaintiff spent in Queensland on the journey from his home to Archerfield and then to Toowoomba before arriving in Moomba was minimal compared to the time he had spent in Moomba before he suffered his injuries in the incident. That is he flew out to Moomba on 1 April 1997 and was injured about five days later.
There is no dispute the defendant had an office at 461 Greenwaller Street Toowoomba in the State of Queensland from which office the defendant employed the plaintiff. The terms signed by the plaintiff show that the defendant also had an office in Adelaide in South Australia and had its head office in Sydney, New South Wales.
The terms provide that they relate to “field service within Australia, on a 2 x 1 cycle only”. Further, that personnel are employed on a roster system of two weeks on and one week off. An employee is required to work 14 days in the field following which the employee has seven days leave before returning to work. Further, that the employees are employed under the terms and conditions of the Oil Drilling Rig Workers (Onshore) Award, as amended. After the hearing I asked the parties to make any further submissions on the status of this award and I was told there is no evidence whether this award is a Commonwealth award or an award of any particular State. Paragraph 2(f) of the terms provides that long service leave accumulates in accordance with the Long Service Leave Act of South Australia. Paragraph 2(j) of the terms is as follows:-
Workers’ compensation – employees are covered by the Workers’ Compensation Act and legislation in the State in which the rig is positioned and working.
Paragraph 5(1)(a) of the terms provides that every employee whilst working any O.D & E site will comply with applicable laws, regulations and guidelines.
The handout states it has been produced to help the employee to better understand a career in the drilling industry with the defendant. It explains some of the conditions of employment that an employee would be subject to. Under the heading “What does O.D. & E. Pty Ltd actually do?” it is stated -
“O.D. & E Pty Ltd is a drilling contractor with more than 40 years experience – both nationally and internationally. When operating companies such as Santos, Shell, Boral Resources or Roma Petroleum (to name just a few) wish to explore petroleum or gas, they contract a company such as O.D. & E. to drill the well(s). …..”
Under the heading “Whereabouts can I expect to work?” it is stated -
“you must be prepared to work in any part of Australia. Currently we have rigs operating in the Cooper Basin (S.A./QLD Border), Eromanga Basin (QLD), Otway Basin (Vic) and Carnarvon Basin (W.A.) ….”
Under the hearing “Summary” it is stated –
“ O.D. & E. drilling rigs are interesting and demanding places to work. Apart from working in various isolated locations with weather extremes ranging from temperatures above 40º to monsoonal rains, you will work different shifts and different kinds of jobs …..”
I am satisfied the plaintiff’s answers in evidence in chief and in cross-examination do not reveal any inconsistency or reason to doubt the credibility of the plaintiff. Further, his evidence was not inconsistent with any of the documentary exhibits tendered during the course of the hearing. I consider him to be a credible witness and accept his evidence.
Was there a Nexus between the plaintiff’s employment and the State of South Australia?
In WorkCover v. Smith (unreported) judgment Full Court of Supreme Court of South Australia, 2 October 1998, it has been held that the place where the injury occurs is not a relevant consideration under s.6(2) or s.6(3) of the Act. Further, that the State in s.6(1) means the State of South Australia and the use of the words “a State” in s.6(2)and (3) means any State. However, in s.6(3) where the expression “this State” is used, that means the State of South Australia. Further in s.6(3)(b) the expression “the State” means the State of South Australia. Finally, the word “employed” appearing in s.6(3)(b) is used in a different sense than it is used in s.6(3)(a). The word “employed” in s.6(3)(b) is used in the sense of “engaged”.
I accept and will apply the interpretation of s.6 of the Act given to it by the Full Court of the Supreme Court of South Australia (Ball-Guymer Ltd v. Lavantar (1992) 102 FLR 326 at 332 per Miles CJ).
Mr Grant-Taylor S.C. who led Mr Morton of counsel for the defendant, submitted the real question in these proceedings is whether or not it can be said that the plaintiff was “usually employed in” South Australia and not in any other State within the meaning of s.6(2)(a) of the Act. That is because as the plaintiff was not based in South Australia s.6(2)(b) did not apply. Further, as WorkCover Queensland paid statutory benefits to the plaintiff the plaintiff was protected against employment-related disabilities by a corresponding law and therefore s.6(3) did not apply.
The second and third notes to s.6 provide that a reference to employment is a reference to the worker’s work and not to the employment as an abstract legal relationship and that a worker is usually employed in a particular State if 10% or more of the time the worker spends working in employment is (or is to be) spent working in the State.
Mr Grant-Taylor S.C. submitted that as the plaintiff worked for five days at the site he was therefore usually employed in South Australia and not in any other State.
On the other hand, Mr Goodwin of counsel for the plaintiff, submitted the five days employment in South Australia did not, when all the facts were considered, mean the plaintiff was usually employed in South Australia and not any other State. He submitted it was relevant to take into account that the plaintiff entered into his contract of employment with the defendant in Queensland and he was sent to South Australia by his own choice as he wished to start work with the defendant as soon as possible and it was possible within a short period of time there would be work in Queensland. Further, on the evidence it was likely the plaintiff would spend a more substantial part of his working time in Queensland or at least out of South Australia.
In my opinion s.6 provides what is meant by employment and in what circumstances a worker is usually employed in a State.
I find the plaintiff entered into a contract of employment with the defendant in Queensland. I find the terms of that contract of employment are in writing and are contained in exhibit 4. I find it was the plaintiff’s intention while employed by the defendant to carry out his work for the defendant at Roma in Queensland. I find there was no agreement made between the plaintiff and the defendant that while he was employed by the defendant he would carry out his work in South Australia. I find the defendant had a number of sites in Australia, namely in Victoria, Western Australia, Queensland and South Australia, to where it was possible the plaintiff could be sent to work for the defendant pursuant to the terms. I find the assignment of the plaintiff to South Australia was at the time an assignment of the plaintiff to South Australia for a work cycle as described in the terms. I find the plaintiff had not been notified by the defendant where else he may be assigned after completion of that work cycle.
It is to be noted as held by WorkCover v. Scott that the geographic location of the injury is not relevant to the determination of a nexus for the Act to apply. The time spent in physical work is the relevant consideration. That time can be either the time that “is spent working” or “is to be spent working” in the State.
Although there is some conceptual difficulty involved accepting a person is usually employed in a place which might be a place a person is sent to on one occasion to work, in my opinion, that does not mean a nexus cannot arise within the meaning of the Act.
If for example, the circumstances were that the plaintiff and the defendant had expressly agreed the plaintiff would work in South Australia for 12 months between specific dates, and the plaintiff was injured the moment he arrived at the site, in my opinion, those circumstances would be time within the expression “is to be spent working” within the State. The plaintiff in those circumstances would, in my opinion, be usually employed in South Australia. Different circumstances including physical work in another State or an intention to do physical work in another State might lead to a different conclusion. Whether a nexus exists within the meaning of s.6 would depend upon the facts as they exist in a particular case.
In the present circumstances the plaintiff was assigned to South Australia for a 14 day period and was injured on the fifth day of that period. He had not been given any future assignment to South Australia or any other place. In my opinion that does not affect the nexus between the plaintiff’s employment and South Australia. Further in my opinion the plaintiff’s intention to work at Roma in Queensland is irrelevant to this question. What is required is time spent working in South Australia or to be spent working in South Australia provided work in another State is not relevant. In this sense the fact that another assignment to another State had not been determined by the defendant or agreed upon between the plaintiff and the defendant, in my opinion, confirms the nexus between the plaintiff’s employment and South Australia
I find that either because the plaintiff had spent five days out of an expected 14 days working in South Australia or it was intended to work for 14 days in South Australia, and not having been assigned work in any other State at that time, the plaintiff was usually employed in South Australia within the meaning of the Act when he was injured at the site.
Therefore I find there is a nexus between the plaintiff’s employment and South Australia. I find the plaintiff comes within sections 30 and 54 of the Act.
In so far as the onus of proof was upon the defendant I am satisfied on the balance of probabilities the defendant has discharged that onus.
Therefore, in accordance with John Pfeiffer Pty Ltd v. Rogerson with respect to the plaintiff’s claim based upon negligence and/or breach of duty in these proceedings, the applicable law is the law of South Australia. Therefore no liability attaches to the defendant with respect to the plaintiff’s claim based upon negligence and/or breach of duty.
However, the plaintiff submitted that the Act does not bar his claim in so far as that claim is based upon a breach of the contract of employment. That is, the proper law of the contract is the law of Queensland. Therefore, the bar provided by the Act is not relevant.
The onus of proof is upon the plaintiff to satisfy me on the balance of probabilities the proper law of the contract is the law of Queensland.
There are two stages to consider (sometimes referred to as three stages) in this context. These are:-
(a) have the parties expressed any choice, or can a choice be inferred from the terms of the contract and the relevant surrounding circumstances;
(b) if no, the court should determine what is “the system of law by reference to which the contract was made or that with which the transaction has the closest and most real connection. (Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. (1984) 1 A.C. 50, 60-62, 65, 69-72; Akai Pty Limited v. The People’s Insurance company Limited (1996) 188 CLR 418, 434 440-442; John Pfeiffer Pty Ltd v. Rogerson (2000) 74 ALJR 1109,1113; John Kaldor Fabricmaker Pty Ltd v. Mitchell Cotts Freight (Australia) Pty Ltd (1989) 18 NSWLR 172, 181; Rothwells Ltd (In liq) v. Connell (1993) 119 ALR 538; Bonython v. Commonwealth (1951) A.C. 201, 219; Oceanic Sunline Special Shipping Co. Inc. v. Fay (1988) 165 CLR 197, 217, 259-60).
Did the parties make a choice?
Mr Grant-Taylor S.C. submitted the parties did make a choice. That choice was because of paragraph 2(j) of the terms of the law of South Australia.
Mr Goodwin submitted clause 2(j) of the terms and conditions does not amount to an express choice to apply the law of South Australia to the contract of employment. That is because it ought to be construed as merely providing information to the plaintiff that the plaintiff is protected by the benefits provided for by the Workers’ Compensation Act and legislation in the State in which the rig is positioned and working, or that the defendant as employer has agreed with the plaintiff as employee that the defendant has arranged for workers’ compensation benefits to be available to the plaintiff in the event the plaintiff suffers injury.
Reference to the ordinary meaning of the word “covered” in The New Shorter Oxford English Dictionary does not provide a useful meaning for that word. However, the word “cover” in its ordinary meaning in a commercial sense is:
“Funds adequate to cover or meet a liability or to secure against contingent loss
b.Adequate insurance against loss, damage, etc; the state of being protected by this”
In my opinion, the ordinary meaning of “cover” should be applied to the proper construction of clause 2(j) in the terms. In my opinion Mr Goodwin is correct in his submission that this clause is not upon its proper construction an agreement that the proper law of the contract of employment was the law of South Australia.
I have also considered whether from the terms and the surrounding circumstances the parties’ choice can be inferred.
In that respect, I take into account clause 2(j) that points, in the event of injury being suffered by the plaintiff in a particular State, to workers’ compensation being available, long service leave is to accumulate in accordance with the Act of South Australia,the plaintiff whilst working at a site agreed to comply with applicable laws, regulations and guidelines and that the State in which the work would be performed would subject the defendant as well to obligations at common law and/or by Statute for the safety of the plaintiff.
However, in my opinion these factors do not permit an inference to be drawn that the parties intended the law of South Australia to be the law of the contract.
Except for the long leave provisions in the terms, the other factors rely upon an injury occurring in a particular State. If injury did occur it would occur after the contact was made.
In my opinion the proper law of the contract is to be determined at the time the contract is made (James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Limited (1970) AC 583, 603, 606, 611, 614, 615; Armar Shipping CoLtd v Caisse Algérienne ďAssurance et de Réassurance The Armar (1981) 1 All E.R. 498, 504-5.
When the contract of employment was made it did not specify South Australia as the place for performance. The place for performance was anywhere in Australia. South Australia was one of a number of places the plaintiff could be required to go to during his employment.
In my opinion, the proper law of this contract could not in this instance float and be fixed solely by reference to the possibility injury might occur in a particular State. Further, injury may not be the only issue that would arise between the parties. Although it is difficult without the actual circumstance occurring to imagine what other issues could arise, I do not consider that difficulty favours a floating proper law to be triggered by injury in a particular State.
An issue that could arise between the parties to this contract is an alleged breach of the contract of employment because of a failure on the part of the defendant to provide to the plaintiff in Queensland fit and proper safety gear for his use in his work in South Australia. Another possible issue could be about payment for the plaintiff’s services and what deductions could properly be made from his remuneration for matters referred to in the terms.
Finally, the term that long service leave was to accumulate in accordance with the Long Service Leave Act of South Australia is not an indication the parties intended the law of South Australia to be the proper law of the contract. That provision only covered one aspect of the parties relationship and does not state that some benefit will be provided by that State to the employee. That term is open to the construction that it is only an indication how long service leave is to be calculated and nothing more. In my opinion, that is insufficient to infer from that either alone or with the other factors that the parties intended the law of South Australia to be the law of the contract.
Therefore, I find the parties did not express the law of South Australia to be the proper law of the contract and that the law of South Australia cannot be inferred to be the proper law of the contract from the terms and the surrounding circumstances.
With which system of law did the transaction have its closest and most real connection?
Mr Grant-Taylor S.C. referred me to the passage in Morris and Dicey on the conflict of laws 10th Edition, Rule 145:-
“Where all the parties have to perform their contractual obligations in the same country it is very likely the court will consider the legal system of that country as the one with which the contract is most closely connected. Seen in terms of the modern development of the law, this, it is submitted, is the practical meaning to be attached to the well known judgment of Lord Esher MR. in Chatenay v. Brazilian Submarine Telegraph Co. [1981] 1 QB. 79, which has always been considered as the principal authority for the lex loci solutionis. Great weight will be given to the law at the place of performance as being the proper law of the contract, especially where the contract is made in one country but to be wholly performed in another. An important decision of the Court of Appeal in The Assunzione [1954] 1 All E.R. 278 shows that, where both parties had to perform in a country other than that in which the contract was made, the argument in favour of the lex loci solutionis is very strong because the contract is almost certain to be more closely connected with the law of the place of performance than with any other law. Where, on the other hand, as in Jacobs v. Credit Lyonnais (1884) 12 QBD 589, the parties have to perform their obligations in different countries, the court will not normally be able to attach much significance to the place of performance.” (emphasis supplied)
He also referred me to the judgment of Hodgson J. in Coupland v. Arabian Gulf Petroleum (1983) 2 All E.R. 434 where his Honour said at p.447:-
“A number of cogent reasons have been put forward by counsel for the plaintiff why I should find the proper law of this contract to be English law. I go through them very quickly. The advertisement was in an English newspaper; the negotiations took place in England; the contract, although perhaps conditional, was made in England; there is dicta that it is important in which language the contract is made; English is also the language in which the interview was conducted; the plaintiff’s salary was paid in sterling; the defendant company is resident in England; the job was arranged through the company’s official agent in England; the witness to the contract was English; all of the administration so far as payment was concerned throughout the period when the plaintiff was off sick was completed in this country; the plaintiff was more in England during the period of the contract than in Libya; the plaintiff is a UK tax payer; the insurance company used by the defendant company was based in London; and throughout the contract of employment the plaintiff was always treated as an expatriate.
These are powerful arguments in favour of the proper law of this contract being the law of England. But, on balance, I think that the fact that the defendant company was employing nationals of different nationalities on what was, effectively, the same terms of contract, really is a connection which ought to prevail. It seems to me that the place where this contact was to be, in effect, performed was Libya, and that the proper law of this contract should be Libyan law.”
Consequently it was submitted by Mr Grant-Taylor S.C. that weight ought to be given to the place where the work was to be performed. In this instance, South Australia.
However, in my opinion, his submission overlooks a number of factors.
These factors are that the defendant’s operations were not limited to South Australia. At the time the handout was given to the plaintiff the defendant had rigs operating in the South Australian/Queensland border, Queensland, Victoria and Western Australia. Further, the defendant had offices not only in South Australia, but also one in Queensland and a head office in New South Wales. The terms did not provide that the place where the work was to be performed was South Australia. The terms related to field service within Australia. Although the plaintiff’s intention to work at Roma in Queensland with his friends was not and could not be binding upon the defendant, it was possible at least that in the future the plaintiff’s intention may have been acceded to by the defendant. The defendant’s operations could, if the defendant agreed provide the plaintiff with work in Queensland. That is, it was not as if the plaintiff could never have been employed in Queensland and could only ever have been employed in South Australia. Of course the plaintiff’s intention to work at Roma in Queensland is not to be given undue weight. That is merely a circumstance to be considered. What is significant, in my opinion, is that the plaintiff may have been sent to work in Victoria for a cycle. If he were injured in Victoria would the proper law be the law of Victoria or South Australia or Queensland?
Therefore, although the place of performance can be decisive, in my opinion, in this proceeding it does not have the effect the defendant submits it has in the circumstances.
In my opinion I must weigh up the relevant factors and make a judgment as to the place with which the transaction had its closest and most real connection (Amin Rasheed Shipping Corp v. Kuwait Insurance Co. The Al Wahab (1985) 1 All E.R. 873 per Donaldson MR p. 876; Amin Rasheed Shipping Corp v. Kuwait Insurance co. (1984) 1 A.C. 50, 60-62,65, 69-72).
In making a judgment then, in my opinion, the following factors are to be considered. Those factors are that the plaintiff resided in Queensland. The defendant had an office in Queensland and it was from that office the defendant employed the plaintiff. The contract of employment was made in Queensland. Although the plaintiff’s wish or intention to work in Queensland is irrelevant to what was agreed with the defendant, nevertheless it was possible that in the future the plaintiff may have been assigned to a rig in Queensland. The plaintiff was sent to South Australia on what was his first work cycle. There was no indication where he might be sent next. The terms did not express, as they could have, that the law of the contract was the law of South Australia.
Factors to the contrary to be considered are clause 2(j) and that the plaintiff was obliged to comply with the applicable laws, regulations and guidelines when in South Australia and that when working in South Australia the plaintiff and the defendant would be working within a framework of the legislation of South Australia. If injury occurred while the plaintiff was in South Australia it is possible (although not exclusively so) that it would be South Australian laws that would be applied to determining the plaintiff’s rights (if any) against the defendant. The long service leave provision in the terms specifically refers to the legislation of South Australia.
However, in my opinion these contrary factors focus upon injury occurring rather than looking at the time the contract of employment was entered into to determine the proper law of the contract. Further, in my opinion, the long service leave provision in the terms relates to only one aspect of the relationship of the parties and does not expressly state that some benefit will be provided by that State to the employee. That term is open to the construction that it is only an indication of how long service leave is to be calculated and nothing more.
Weighing up these factors then it is my judgment that the place with which the contract had its closest and most real connection was the State of Queensland.
The plaintiff has satisfied the onus upon the plaintiff to persuade me the proper law of the contract is the law of Queensland.
I find the Act is not a bar to the plaintiff’s claim against the defendant in this court based upon damages for breach of the contract of employment.
Therefore, pursuant to the parties agreement as to how the proceedings should be resolved, as I find the Act does not bar the plaintiff’s claim against the defendant to the extent that it is based upon a claim for damages for breach of contract of employment, I give judgment for the plaintiff against the defendant in these proceedings.
I will hear the parties as to any further orders including such orders as to costs that ought to be made in the circumstances.
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