Goldman v Ribshire Pty Ltd
[2015] WADC 155
•22 DECEMBER 2015
GOLDMAN -v- RIBSHIRE PTY LTD [2015] WADC 155
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 155 | |
| Case No: | CIVO:136/2014 | 30 SEPTEMBER 2015 | |
| Coram: | KEEN DCJ | 22/12/15 | |
| PERTH | |||
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Worker's employment connected to the State of Western Australia | ||
| PDF Version |
| Parties: | BUSH GOLDMAN RIBSHIRE PTY LTD WORKCOVER QUEENSLAND |
Catchwords: | Workers' compensation State with which worker's employment connected Turns on own facts |
Legislation: | Workers' Compensation and Injury Management Act 1981 |
Case References: | Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASC 186 Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 Weir Services Australia Pty Ltd v Allianz Australia Insurance Limited [2013] NSWSC 26 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RIBSHIRE PTY LTD
First defendant
WORKCOVER QUEENSLAND
Second defendant
Catchwords:
Workers' compensation - State with which worker's employment connected - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981
Result:
Worker's employment connected to the State of Western Australia
Representation:
Counsel:
Plaintiff : Mr B L Nugawela
First defendant : No appearance
Second defendant : Mr G R Donaldson
Solicitors:
Plaintiff : Shine Lawyers
First defendant : Not applicable
Second defendant : HBA Legal
Case(s) referred to in judgment(s):
Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASC 186
Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78
Weir Services Australia Pty Ltd v Allianz Australia Insurance Limited [2013] NSWSC 26
1 KEEN DCJ: By an originating summons dated 19 September 2014 the plaintiff seeks a determination, pursuant to s 23C of the Workers' Compensation and Injury Management Act 1981 (the Act), that the State with which the plaintiff's employment was connected, in respect of an injury said to be sustained by the plaintiff on 28 December 2010, is the State of Queensland.
2 In order to put that into context, the plaintiff alleges that on that date he was working for the first defendant at the Christmas Creek Expansion Project in a remote locality in Western Australia. Whilst working at that location, he alleges that he suffered severe brain damage from severe heat stroke as a result of having to work outdoors and in enclosed spaces at extreme temperatures.
3 In this matter WorkCover Queensland has been joined as the second defendant so as to be heard in relation to the issues that arise. At the hearing the plaintiff was represented by counsel, as was the second defendant. The first defendant and its insurers, who might have an interest in relation to any claim arising in Western Australia, did not appear and I was told that they were content to abide by the outcome of the hearing.
General overview of the nature of the evidence
4 The summons is supported by an affidavit sworn 27 August 2014 by Mr Roger Singh, a partner in the law firm of Shine Lawyers, being the solicitors, for the plaintiff (the Singh affidavit – exhibit 1).
5 The plaintiff swore an affidavit on 12 September 2014 (the P1 affidavit – exhibit 2) verifying the facts contained in the Singh affidavit. There is a further affidavit from the plaintiff sworn 15 September 2015 (the P2 affidavit – exhibit 3).
6 In opposition John Michael Kennedy swore an affidavit on 8 July 2015 (exhibit 4). Mr Kennedy is the managing director of the first defendant.
7 Also in opposition there is an affidavit of Bruce Richard Thomas sworn 11 June 2015 (exhibit 5).
8 As a general observation, the Singh affidavit is bad in form. Whilst the deponent deposes that the matters in the affidavit are of his own knowledge and from perusal of his firm's file unless otherwise stated, it is quite clear that it is, in the main, hearsay. It is for this reason that the plaintiff has sworn his P1 affidavit in which he confirms and verifies all of the facts and details stated in the Singh affidavit as true and correct. Whilst it is noted that the Singh affidavit is bad in form, counsel for the second defendant took no issue to it being used in the proceedings subject to objection which was taken to par 22 and allowed in respect of the second sentence thereof and subject to agreement between the parties that certain statements in that affidavit require some explanation or modification.
9 I will come to the content of the affidavits shortly. However I note that for the purposes of these proceedings the plaintiff was cross-examined on his affidavits as was Mr Kennedy on his.
10 What becomes apparent from the affidavit of Mr Singh is that, following his injury, the plaintiff made a claim for worker's compensation benefit to the Queensland statutory authority, the second defendant, which commenced making statutory compensation payments. However, sometime later the second defendant argued that the plaintiff was pursuing his claim in the wrong jurisdiction vis Queensland.
11 The Singh affidavit demonstrates that the plaintiff had earlier sought to pursue the claim at WorkCover (WA) but that was refused by the WA insurer (QBE) on the basis that Queensland was the appropriate and correct jurisdiction. Annexure RS7 to that affidavit is a Certificate of Outcome from the Conciliation Service of WorkCover (WA). In those proceedings the first defendant took the position that Queensland was the State of connection for the purposes of a claim. The certificate demonstrates that the parties were unable to reach any agreement in relation to that application before WorkCover (WA).
The legislative framework
12 The Act relevantly provides:
20. Compensation not payable unless worker's employment connected with WA
(1) In this section —
State, in a geographical sense, includes a State's relevant adjacent area as described in Schedule 6.
(2) Compensation under this Act is only payable in respect of employment that is connected with this State.
(3) The fact that a worker is outside this State when the injury occurs does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(4) 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.
(5)…
(6) If no State is identified by subsection (4) or (if applicable) (5), a worker's employment is connected with this State if —
(a) a worker is in this State when the injury occurs; and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(7) 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.
(8) Subject to subsection (7), in deciding whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a State or is in a State for the purposes of employment whether or not under the statutory workers' compensation scheme of that State the person is regarded as a worker or as working or employed in that State.
(9)…
23B. Determining if WA is connected with worker's employment
(1) If the question of whether this State is connected with a worker's employment arises in proceedings in a court in relation to a claim for compensation under this Act, that court must —
(a) determine the State with which the worker's employment is connected in accordance with section 20; and
(b) cause that determination to be entered in the records of the court.
(2) Subsection (1) does not apply if there is a determination that is to be recognised under section 23D.
23C. Application to District Court to determine which State is connected with worker's employment
(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.
13 The affidavit of Roger Singh at par 1 deposes that the plaintiff signed an Offer of Assignment – Christmas Creek Expansion Project on or about 17 November 2010 (annexure RS1). It is headed 'G-ECMJV' being Goodline-ECM Joint Venture. The affidavit of Mr Kennedy demonstrates that the first defendant trades as Goodline and in his evidence he said that there was a joint venture in respect of this project.
14 The offer of assignment relevantly provides that the plaintiff was offered employment with the first defendant (trading as Goodline) assigned to the joint venture effective 22 November 2010. The offer of assignment was to constitute the contract of employment for the duration of the employment on that project.
15 The affidavit of Mr Singh goes on to describe the plaintiff's arrival at the site, the nature of his employment and him suffering injury on 28 December 2010 as a result of severe heat stroke.
16 The affidavit then relevantly sets out details of the claims made in Queensland and in Western Australia.
17 The plaintiff was flown to the Christmas Creek mine site at the cost of the defendant.
18 At par 21 Mr Singh deposes:
At all material times the plaintiff understood that the intention of his employer was to assign him work in WA for a temporary period only, for less than 6 months, with him returning to work for his employer in Queensland after the temporary stint in WA.
19 Objection was taken to this paragraph. During the course of argument on the objection counsel for the plaintiff sought to rely on par 29 of that same affidavit and pars 4, 5 and 6 of the plaintiff's P2 affidavit to explain the plaintiff's understanding and the suggested intention of the employer. On that basis counsel for the defendant withdrew his objection.
20 The affidavit then sets out further information leading to the engagement of the plaintiff and at par 29 it is said:
The plaintiff secured the job with Ribshire after he made telephone contact in November 2010 with John Kennedy. I am advised by the plaintiff and verily believe that during the telephone conversation, John Kennedy asked the plaintiff if he would go to WA first for a couple of months because they were running behind on the Christmas Creek job. I am advised and verily believe that John Kennedy told the plaintiff that he would only be required to perform one to two rosters in WA.
21 The affidavit then seeks to set out how the plaintiff appeared to have rationalised his position and that of his family with regard to travelling to Western Australia, they being based in the Eastern States. At par 33 it was deposed:
On the basis of the plaintiff securing work in Abbot Point or Weipa, it is my understanding that it is approximately 4 hours travel by flight from Bowen Airport (QLD; 25 km from Abbot Point) to Sydney (NSW) via Townsville (QLD) and 6.5 hours from Weipa Airport (QLD) to Sydney (NSW) via Cairns (QLD). That is significantly less travel time had the plaintiff maintained employment in WA; in that instance travel stands at some 12 to 13 hours from Wollongong. I am advised by the plaintiff and verily believe that the plaintiff gave such matters very careful thought when ultimately deciding to relocate his family to Wollongong whilst at that time engaging in temporary work in WA. (emphasis added)
22 The lead-in to that passage of evidence referred to alternative work at Abbot Point or Weipa. Objection was taken to that section which I have emphasised and it was agreed between the parties that it could remain in the affidavit on the clear understanding that the last part should be read as '… whilst at that time believing he was engaging in temporary work in WA'.
23 In his P2 affidavit the plaintiff deposed that originally he had submitted an application to the first defendant to work in its Queensland operations and had discussed the possibility of future employment at Weipa. During the course of a telephone conversation with John Kennedy prior to commencing his employment with the defendant he deposes that he was advised to take the employment at Western Australia as that work was then available and promised good remuneration.
24 He went on to say (par 6):
I only ever held the understanding that I was employed by Ribshire in WA for a temporary period of no more than 4 months, returning to work with Ribshire in Queensland after the completion of my time in WA and in a continuing role in the company. This is the role that I had originally applied for and discussed with the company.
25 In his evidence in court the plaintiff confirmed that he had read the affidavit of Mr Singh and his own affidavits and affirmed the contents were true and correct.
26 During the course of his evidence it became abundantly clear that Mr Goldman had a very severe stutter or stammering in his speech which at times was slurred. It was, at times, extremely difficult to follow what he had to say and it becomes necessary for counsel to try to express questions so that they were capable of a simple short answer so that the answer may be properly understood. That was not always achieved.
27 The fact of those and other disabilities can be found in annexure BRT1 to the affidavit of Bruce Richard Thomas (exhibit 5) and being the notice of claim for damages to the Queensland workers' compensation regulatory authority.
28 The plaintiff was cross-examined about the quality of his memory. He said he did not suffer major memory problems, only slight. He said that he had to concentrate and agreed that his memory was not as sharp as it was previously. However, if he thought about it - took time to absorb what was being asked - he could remember things.
29 He confirmed that he had given Mr Singh the information that was contained in his affidavit and that he had read it recently.
30 He was asked about his memory now as to how his work with the defendant arose. He said that he spoke to a Mr Chris Gilmore in late 2010 concerning work at Abbot Point and Weipa. He said that nothing came of it because it was not ready to start at that time. When he spoke to Gilmore he was told that he should telephone John Kennedy. He said he did so in about November 2010 about working for the defendant and Kennedy told him that he could go to Western Australia for a couple of months on the Christmas Creek job and he would only have to do one or two rosters.
31 It was put to him that he had no conversation with Mr Kennedy about working in Queensland. He said that was not the case. He said that Kennedy had told him that if he wanted quick money then for a short period he should go to Western Australia. He said he had asked to go to Weipa and Abbot Point and had been told they were not ready but the Christmas Creek project was available and they would look at Weipa and Abbot Point later. He had said he had already worked at Abbot Point previously.
32 He was taken to annexure RS1 to the Singh affidavit and he agreed that that was the document that he signed. He agreed that he was engaged as a casual employee for that assignment. He said that there were always new contracts for each site. He said he understood that he was a casual worker on that particular contract. He also agreed that was the only written contract that he had with the defendant.
33 In re-examination he said that his initial discussion with Kennedy was about working at Weipa and Abbot Point before he went to Western Australia.
34 He also said that his employment was permanent, albeit casual, on each of the sites. He said that he would have to sign a new letter of offer for every contract.
35 John Michael Kennedy in his affidavit (exhibit 4) deposed to details concerning the Christmas Creek project. He also annexed the offer of assignment for the plaintiff and noted that that records that the offer of assignment was 'for the duration of your employment on this project'.
36 He went on to say that the first defendant did not at any time intimate or suggest to the plaintiff that it would continue to employ the plaintiff after his assignment for work on the Christmas Creek Expansion Project ceased.
37 In the Singh affidavit at pars 27 and 28 there is reference to the plaintiff sending an email to a person called Caelan of the first defendant company about the Abbot Point work and that he (the plaintiff) and his partner had been employed there previously and they were seeking employment back down there and wished to relocate there. That affidavit then goes on to depose that Caelan telephoned the plaintiff and advised him there was work available at Weipa but it was not Caelan's ultimate decision and that the plaintiff should contact John Kennedy. In his affidavit Mr Kennedy says that Caelan Woodhams did not have any authority to offer any employment on behalf of the first defendant.
38 In answer to par 29 of Singh affidavit Mr Kennedy said that that was not an accurate reflection of his discussion with the plaintiff; he did not offer the plaintiff employment in Queensland, he did not ask the plaintiff to 'go to WA first' and the only employment he ever offered to the plaintiff was employment at the Christmas Creek Expansion Project.
39 Earlier in that affidavit at par 9 he said the plaintiff was employed exclusively for the purpose of working on the Christmas Creek Expansion Project and the first defendant did not at any time have any intention of employing the plaintiff to work at any future date in Queensland. The plaintiff's employment was for a short term project only. The plaintiff did not at any time perform any work duties in the State of Queensland.
40 At par 16 of his affidavit Mr Kennedy deposes that the temporary period of employment at Christmas Creek was the only period of employment and the only site at which the first defendant contemplated employing the plaintiff. The contract of employment was explicitly limited to work on that project. The first defendant had no intention of continuing to employ the plaintiff in Queensland or anywhere else after completing that work.
41 Mr Kennedy was called to give evidence and confirmed the truth of his affidavit.
42 Under cross-examination he said that the Christmas Creek project extended from about August 2010 through to January 2011 with some tidying up work to April 2011.
43 The company engaged about 100 employees for the project with others being employed by the joint venture.
44 He said he did not conduct interviews of the employees. He agreed that the plaintiff had telephoned him or he had telephoned the plaintiff because he had been recommended. However he had nothing to do with the plaintiff's employment at the site and having had the initial telephone conversation he handed the plaintiff over to human resources for the necessary checks to be carried out.
45 Mr Kennedy himself had no role to play in the project.
46 At the time the first defendant was not employing any people at Abbot Point or Weipa. Weipa had about 30 people engaged on it.
47 He expressly denied that he had discussions with the plaintiff about working at Weipa or Abbot Point. He only had the one telephone call with the plaintiff which lasted only about 30 or 40 seconds after which he handed him on to the human resources department.
48 It was put to him there was some discussion about prospects at Weipa and Abbot Point and he said he had no recollection of ever saying that.
49 He also had no recollection of telling the plaintiff that there would only be two swings at Christmas Creek. He denied saying to the plaintiff that after Christmas Creek he would look at engaging him at Abbot Point or Weipa when these were ready.
50 Bruce Richard Thomas who swore the affidavit being exhibit 5, is the legal practice director of the lawyers on behalf of the second defendant, being the statutory insurer of the first defendant for the purposes of the Workers' Compensation and Rehabilitation Act 2003 (Qld).
51 I do not propose to go through all that is contained in that affidavit. It annexes a number of documents which deal with the progress of the claims made by the plaintiff to that statutory insurer and its response to those claims, the status of the plaintiff as a worker and the nature of the employment of the plaintiff and location of such work and the general progress of claims both in Western Australia and Queensland. The deponent also annexes and refers to various medical information about the plaintiff, which I need not canvass further.
The plaintiff's submissions
52 The plaintiff filed opening and closing written submissions.
53 In opening submissions the plaintiff argued that the plaintiff's point of hire was in Cairns and the first defendant provided for mobilisation and demobilisation costs to and from Cairns.
54 It was also argued that the plaintiff's and first defendant's intentions with regard to the employment are relevant and must be taken into account – that is, the intention at the point of hire not later. It is said that the point of hire is manifestly objective and also subjective.
55 Argument was also advanced that the plaintiff had originally brought his claim in Queensland. That was the subject of dispute as to the State of connection so he commenced an application in Western Australia. It is said that the defendant then conceded that the State of connection was Queensland and commenced making payments by way of compensation under the scheme.
56 It is said that the defendant then reprobated and the plaintiff is prejudiced because of his potential loss of common law rights in Western Australia, the recovery of benefits paid in Queensland and the loss of statutory entitlements in Western Australia.
57 Those opening submissions were amplified by written closing submissions to the effect that the defendant's argument of approbation or reprobation raises a 'species or instance of estoppel by conduct'.
58 The plaintiff relied upon the acceptance of its statutory claim by WorkCover Queensland and by accepting the plaintiff's claim, WorkCover Queensland acquiesced as to the State of Queensland being the correct jurisdiction for the bringing of an action at common law.
59 As to the principal issues arising in this matter it is said that there was an implied/express oral promise by Mr Kennedy (for the first defendant) that the plaintiff would work at Abbot Point/Weipa once those projects were ready but in the meantime, if the plaintiff helped out the first defendant (at Christmas Creek) the plaintiff would be able to earn some money before Christmas. It was a temporary arrangement with the intention the plaintiff would have work in Queensland.
60 It is argued that the court should prefer the plaintiff's recollection of the conversations with Mr Kennedy.
The defendant's submissions
61 The defendant also filed written opening and closing submissions. Those submissions raise the issue of whether or not the plaintiff had made a claim for compensation under the Act (s 23C).
62 Apart from that preliminary issue, the second defendant argued, relying upon authority, that the plaintiff's only employment was in Western Australia. That being the case, the worker's employment is connected with that State pursuant to s 20(4)(a) of the Act. In closing submissions the second defendant argued that Western Australia is the State in which the plaintiff 'usually worked in the employment'.
63 It was submitted that that was consistent with the agreement entered into and being annexure JMK2 to exhibit 4 (the Kennedy affidavit). It was submitted that the plaintiff was a casual employee and the agreement sets out all of the terms and conditions upon which he was engaged which was at the Christmas Creek Expansion Project.
64 It was argued that on the basis of the plaintiff's evidence there was never any agreement for the plaintiff to work for the first defendant anywhere other than in Western Australia and no legal relationship of employer/employee existed in respect of any other employment other than the Christmas Creek Expansion Project.
65 It is argued that the inquiry stops at s 20(4)(a) of the Act in that the State in which the worker usually worked in his employment with the first defendant was Western Australia.
The preliminary issue
66 As I have noted the second defendant argues that the application of s 20C is conditioned by a claim for compensation having been made under the Act.
67 The ordinary meaning of the words used support that contention.
68 This gives rise to the question as to what constitutes a claim for compensation within the meaning of that section.
69 'Claim for compensation' is not, of itself, defined by the Act. Accordingly, it is necessary to try to establish some meaning to attach to those words by reference to the Act generally.
70 Section 3 of the Act relevantly provides, that the purpose of the Act is to establish a workers' compensation scheme for Western Australia dealing with compensation payable to or in respect of workers who suffer an injury.
71 Part III div 1 provides for payment of compensation. Section 18 provides 'If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1'. Schedule 1 sets out compensation entitlements including for total or partial incapacity and weekly payments and for medical and other expenses. Other schedules to the Act deal with other claims to compensation which I need not deal with for the purposes of this application.
72 A claims procedure, where an employer is insured, is provided for in the Act. Section 57A provides, amongst other things, that the section will apply where 'a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with s 178(1)(b)'.
73 Part X of the Act makes provision for dispute resolution. Dispute is defined (s 176) as, amongst other things, 'a dispute in connection with a claim for compensation or the liability to pay compensation, under this Act'.
74 The Act provides for the establishment of WorkCover Western Australia Authority with a Chief Executive Officer. Part XI div 3(1) provides for the establishment of the Workers' Compensation Conciliation Service with a designated Director. Division 3(2) provides:
182E(1) A party to a dispute (referred to in this Division as the DISPUTE) may apply to the Director in accordance with this Act and the conciliation rules for resolution of the dispute by conciliation.
75 Section 182F provides that an application for conciliation cannot be accepted by the Director unless the Director is satisfied that it relates to a dispute as defined in s 176 and that reasonable attempts have been made to resolve that dispute by negotiation. I have set out the definition of 'dispute' previously.
76 The Act provides a mechanism for such disputes to be resolved firstly, if possible, by conciliation and, if that proves unsuccessful, by arbitration.
77 Section 182O provides:
(1) Conciliation of the dispute ends when —
(a) agreement is reached by the parties on all matters in dispute; or
(b) the conciliation officer believes that there is minimal chance of agreement or further agreement, as the case may be, being reached; or
(c) the time limit for conciliation, as provided or extended under the conciliation rules, has expired.
(2) At the end of conciliation of the dispute the conciliation officer is to issue a certificate in accordance with the conciliation rules setting out —
(a) the outcome of conciliation; and
(b) the terms of any direction currently in force under section 182K or 182L.
(3) The terms of an agreement reached by the parties are not to be included in the conciliation officer's certificate unless they are terms that —
(a) are of the kind that an arbitrator could determine; and
(b) can be given effect to under this Act.
79 The issues referred for conciliation are defined as:
Determination of liability – the applicant seeks determination of liability for his claim/injury, the payment of weekly payments of compensation from 28/12/10 and continuing as for total incapacity plus payment of reasonable statutory allowances and rehabilitation.
80 The certificate demonstrates that the issues were not resolved and there was minimal prospect of resolution. Under the heading 'Details of Outcome' it was noted that the respondent (the first defendant) challenged the applicant's (the plaintiff) right to claim compensation entitlements in Western Australia. It was noted that the respondent had said that the applicant lived outside of Western Australia and was engaged on a short-term contract with the respondent with a principal place of business situated in Queensland. The respondent's view was that the State of connection was Queensland. The Certificate notes that, given the minimal prospects of resolution of the dispute, the conciliation was finished.
81 Having regard to the forego, I am satisfied that a claim for compensation has been made under the Act as required in s 23C. It is clear from the Certificate of Outcome that that certificate relates to a dispute as so defined, that is to say 'in connection with a claim for compensation, or liability to pay compensation, under this Act'. As I have noted, compensation includes weekly payments and statutory allowances. The Certificate of Outcome clearly shows the dispute was in relation to such a claim for weekly payments of compensation and statutory allowances.
82 Such an application for conciliation cannot be accepted by the Director unless there is such a dispute.
83 I am satisfied that the Certificate of Outcome is sufficient evidence of such a dispute and that that dispute itself followed a claim for compensation under the Act.
84 Accordingly, I am satisfied that the preliminary criteria for this court to deal with the question of which State is the State with which the worker's employment is connected under s 23C of the Act has been satisfied.
Legal principles
85 In this matter the originating summons is issued for a determination under s 23C of the Act. Specifically the application seeks:
1. It be determined pursuant to s 23C of the Act, that the State of connection in respect of the plaintiff worker's injury on or about 28 December 2010, is the State of Queensland.
2. Such other or further orders as this honourable court shall think fit.
86 Whilst the plaintiff has sought to submit and rely upon the second defendant having accepted a claim in Queensland but now seeking to deny that claim – the approbation and reprobation argument – the plaintiff has made no detailed submissions as to how that effects the current application other than a bald statement that it creates a species or instance of estoppel by conduct.
87 The second defendant, in its submissions has not addressed the issue at all. It would appear, inferentially, that the second defendant relies solely on a factual findings and a proper interpretation of s 23C of the Act.
88 It is the case that proceedings have been brought in the Supreme Court of Western Australia under the Act. That matter was heard by Corboy J and related to whether or not the plaintiff could make a claim in Western Australia in respect of his injuries having regard to the provisions of the Act regarding the worker's election to seek damages and the like. I am advised that the effect of the order there was that damages in respect of the plaintiff's claimed injury cannot now be awarded in Western Australia. That decision is the subject of an appeal which I am also informed is on hold pending the outcome of the current proceedings.
89 It is the plaintiff's case that it matters not what Corboy J decided in those proceedings. In the current proceedings the Court is asked to determine the State of connection which has ramifications for the plaintiff's statutory entitlements.
90 Given the nature of the originating summons before me I am satisfied I need not have regard to those earlier proceedings in the Supreme Court.
91 Further, I am asked to determine the factual position between the plaintiff and the first defendant regarding his employment with the first defendant and how that is affected by s 23C of the Act so far as the relevant State of connection issue is concerned.
92 It seems to me that that finding will not be affected by what has been loosely described as a species of estoppel by conduct. Whether such conduct arises and its effect on the overall outcome of the plaintiff's claim, will have to be determined elsewhere (depending on the outcome of these proceedings).
93 Given the sparsity of submissions in relation to this aspect, I decline to deal with the issue in the context of the current claim it, in my view, having no relevance.
94 There appears to be a measure of agreement between the parties that a proper application of s 23C of the Act requires the application of the 'cascading' provisions of the section to the facts as found.
95 In Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASC 186 [52], Mitchell J noted:
… 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.
The application of the section also came under close scrutiny by Commissioner Herron (as he then was) in Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78.
96 The corresponding section in the New South Wales legislation also came in for consideration in Weir Services Australia Pty Ltd v Allianz Australia Insurance Limited [2013] NSWSC 26.
97 In both Weir Services and Ethnic Interpreters the judgment of Commissioner Herron in Tamboritha was referred to and cited with approval.
98 In Tamboritha the learned commissioner considered the expression 'having regard to' in s 20(7). His Honour was of the view that the words do not limit the court's discretion by only having regard to those matters specifically set out in s 20(7). Under that subsection, in deciding whether a worker usually works in a State, his Honour held that it was necessary to take into account the worker's history over the preceding 12 months and give it such weight, as in the exercise of his discretion, he should determine but that he also may have consideration to a greater work history extending beyond that period. With respect I agree with the findings made by his Honour in that regard.
99 His Honour also went on to consider s 20(4)(a) of the Act which provides that the worker's employment is connected with the State in which the worker usually works in that employment.
100 His Honour noted that in conjunction with s 20(7), in considering whether the employment is connected with the State in which the worker usually works, regard may not be had to any temporary arrangement under which the worker works in a State for a period of not longer than six months.
101 On the facts of Tamboritha the learned commissionernoted that the arrangements between the employer and employee were such that the worker worked on a job-by-job basis. If he accepted an offer of work he was required to work wherever the work was required to be undertaken. That might be in Western Australia or elsewhere. His Honour noted that in that case that the intentions of the parties was that he, the worker, would work wherever the work was required to be performed and he could either choose to accept or decline an offer of work. In that case it was noted there was never an intention on the part of the parties that the worker usually work in any one State or any one location.
102 However, his Honour did note that the arbitrary decision of the worker whether to accept or reject an offer of work cannot determine where for the purposes of s 20(7) the worker usually works. In that case, there was no intention on the part of the parties that the defendant usually work in any one particular State or location.
103 In that case, his Honour noted that the nature of the arrangement between the parties was that each period of work constituted a separate contract. There was no continuing period of employment as seems to be contemplated by s 20(7). That being the case there was no temporary arrangements for the purposes of the subsection.
104 On that basis, and other bases, the commissioner was unable to determine whether the worker's employment was connected with either Western Australia or Victoria pursuant to s 20(4)(a) (i.e. the worker usually worked in his employment with the plaintiff in one State). In order to place that in context, it is necessary to consider the facts of that case which demonstrate that the worker was offered work on a job-by-job basis. The judgment sets out details of the work performed by the worker at various places between various dates. It would appear that there was an ongoing relationship between the employer and employee.
105 Given that his Honour was unable to make a determination under s 20(4)(a), his Honour went on to consider s 20(4)(b) of the subsection dealing with where a worker is usually based for the purposes of his employment. His Honour found (89) that the fact that each new job or contract for work commences and concludes in Western Australia and that each contract for work is entered into in Western Australia, is relevant when considering where the worker is usually based for the purposes of the employment. It was on that basis that his Honour found a connection under that subparagraph with Western Australia.
Findings of fact
106 Unlike the case of Tamboritha, I am unable to find that there was an ongoing relationship of employer and employee between the plaintiff and the first defendant. There is simply no evidence to show that there was any contract of employment prior to the Christmas Creek engagement. There is no work history or temporary arrangement that the plaintiff had with the first defendant as contemplated by s 20(7) of the Act.
107 In s 20(4)(a) of the Act the focus is on the worker's employment. The only employment that the plaintiff had with the first defendant was under the written agreement (annexure JMK2 to exhibit 4) and that was only in respect of the work at the Christmas Creek Expansion Project. Under that agreement he was to be based at the Christmas Creek Expansion Project as a casual employee.
108 Accordingly, it is not necessary for me to consider further the provisions of s 20(7)(a) or the reference to a temporary arrangement for a period of not longer than six months.
109 Further, under the agreement the plaintiff was to be bound by the Goodline AMWU Xmas Creek Project Enterprise Agreement 2010 (enterprise agreement). This agreement is annexure RS8 to exhibit 1. It is clear from that agreement in cl 5.1 that it only relates to the Christmas Creek Expansion Project. It also provides that for the terms of the contract of employment which are set out at cl 10. It is to be noted that in respect of casual employees they are to be paid by the hour and their work is subject to termination on one hour notice.
110 The second defendant argues that this demonstrates, for the casual employee (such as the plaintiff), the employment was extremely fragile and those terms are 'inimicable to any employment beyond the absolute immediate'. It is further argued that that is inconsistent with any notion that the employment with the first defendant was for anything other than the project at Christmas Creek.
111 The second defendant argues that there never was any agreement for the plaintiff to work other than on that project in Western Australia.
112 There is much force in the argument put forward by the second defendant about the fragility of the plaintiff's employment. However, in my opinion, that of itself is not determinative. There could be such fragile employment and yet nevertheless an employee could, in the right circumstances, satisfy the requirements necessary to establish a State of connection.
113 The plaintiff relies on the intention of the parties that the plaintiff should become employed by the first defendant to work in Queensland but that as a temporary measure, he should go to work in the Christmas Creek project on a temporary basis.
114 I am not satisfied that there was any such mutual intention by the parties. I am asked to accept the evidence of the plaintiff over that of Mr Kennedy to demonstrate that there was an implied or express oral promise by Mr Kennedy that the plaintiff would work at Abbot Point or Weipa once those projects were ready. Mr Kennedy, on behalf of the first defendant denied any such arrangement.
115 I have no doubt that it was the plaintiff's desire to try to obtain further work with the first defendant in Queensland and indeed that may well have been the motivation for his family to move to a more convenient location in the event that that should arise. However, I am unable to find that there was any promise made in this regard.
116 I accept the evidence of Mr Kennedy that his involvement with the plaintiff was very short consisting of a short telephone conversation before passing the plaintiff on to his human resources department.
117 Further, it would appear, as evidenced by the fact of a formal contract of engagement for the Christmas Creek Expansion Project that it is the practice of the first defendant to engage on formal contracts. Indeed, the plaintiff acknowledged in his evidence that he would have to sign a new letter of offer for every contract.
118 Accordingly, whatever the plaintiff's expectation may have been about the future, any further work would be the subject of a fresh letter of offer which he could accept or reject which appeared to be the case in Tamboritha's case.
119 Interms of s 20(4)(a) of the Act and having regard to s 20(7), I am satisfied that the plaintiff usually worked in his employment in the State of Western Australia. I find that that was not only, in relation to the first defendant, the usual position, it was the only position that had ever been adopted.
Conclusion
120 By reason of the foregoing I am satisfied and determine that the employment of the plaintiff was under the contract of service and constituted by the offer of assignment dated 17 November 2001 and that that employment was connected with the State of Western Australia.
121 As required by s 23C(2), I order that this determination be entered in the records of the court.