Helicopter Aerial Surveys Pty Limited v Duff
[2020] NSWWCCPD 50
•3 August 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Helicopter Aerial Surveys Pty Limited v Duff [2020] NSWWCCPD 50 |
| APPELLANT: | Helicopter Aerial Surveys Pty Limited |
| RESPONDENT: | Iain Duff |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-3259/19 |
| ARBITRATOR: | Mr R Bell |
| DATE OF ARBITRATOR’S DECISION: | 2 December 2019 |
| DATE OF APPEAL DECISION: | 3 August 2020 |
| SUBJECT MATTER OF DECISION: | Section 9AA(3)(c) of the Workers Compensation Act 1987 considered; whether Arbitrator erred in factual finding that the appellant’s principal place of business was located in New South Wales; Raulstonv Toll Pty Ltd [2011] NSWWCCPD 25 principles considered |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Ms L Goodman, counsel | |
| Turks Legal | |
| Respondent: | |
| Mr B McManamey, counsel | |
| Carroll & O’Dea Solicitors | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 2 December 2019 is confirmed. |
INTRODUCTION
The ambit of this case both at first instance and on appeal is quite narrow.
The respondent was employed by the appellant as a maintenance coordinator in the appellant’s helicopter/commercial aviation business. On 5 January 2015 whilst in Pohnpei in Micronesia, the respondent suffered severe injuries in a helicopter accident. Part of the appellant’s business was to lease or charter helicopters for the purpose of fish spotting in the Western Pacific Migratory fish zone. Pursuant to this business, the respondent was present in Micronesia at the time of his injury.
Given that the injury was suffered by the respondent overseas, the learned Arbitrator had to consider the provisions of s 9AA of the Workers Compensation Act 1987 (the 1987 Act) and whether the respondent’s employment was connected with the state of New South Wales. The appellant to this appeal disputed whether or not the respondent’s principal place of business was in Australia and hence the only issue to be decided related to s 9AA(3)(c) of the 1987 Act.
BACKGROUND
The facts in this matter are not in dispute. The appellant argues that as a result of the absence of certain facts, the respondent has failed to discharge his burden of proof. The respondent, to the contrary, points to a number of facts which it says substantiate the proposition that the respondent’s principal place of business was in New South Wales. I set out these competing propositions below.
No other facts in this matter are either in dispute or the subject of any argument.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The evidence can be briefly summarised as it only relates to where the appellant employer’s principal place of business is.
Mr Duff provided two statements, dated 21 May 2015[1] and 10 May 2019[2]. Mr Duff stated:
(a) he commenced employment with the appellant in January 2014, whose head office address is in Sutherland NSW;
(b) “My Manager is Barry Jones. Helicopter Aerial Surveys is located at [an address in Sydney’s southern suburbs]. To the best of my knowledge, the postal address is in Sutherland NSW”[3];
(c) Mr Duff lived in Queensland before his employment with the appellant; and
(d) his duties with the appellant involved running the helicopter maintenance operation at Pohnpei, Micronesia.
[1] Application to Admit Late Documents (AALD) 25 October 2019, pp 12–20.
[2] Application to Resolve a Dispute (ARD), pp 1–5.
[3] AALD 25 October 2019, p 13, [9].
The statement of Mr Jones, Company Director of the appellant, of 21 May 2015[4] outlines the nature of the business which employed Mr Duff. Mr Jones states that,
(a) he spends about 50 per cent of his time overseas for the business’s purpose of running a fleet of helicopters to spot fish in the commercial fisheries of Micronesia;
(b) “[a]ll mail should be sent to PO Box […] Sutherland NSW 2232”;
(c) in mid-January 2015 Mr Jones sought and obtained a s 175C Private Ruling from WorkCover stating Mr Duff was a worker for the purposes of the 1987 Act, and
(d) Mr Duff was paid his wages by transfer to the Bank of Guam via a US dollar account.
[4] ARD, pp 6–12.
The appellant’s Application to Admit Late Documents (AALD) dated 25 October 2019 contains several relevant documents including:
(a) A letter to Mr Jones from WorkCover dated 7 January 2015 regarding his application under s 175C of the 1987 Act for a private ruling as to the status of Mr Duff.[5] This letter states that the private ruling is based on the information provided by Mr Jones. The decision was that Mr Duff was a “worker” in the period covering the incident of injury. It sets out the “key indicators” for the decision, including,
[5] AALD 25 October 2019, pp 22–25.
“• lain Alister Duff is engaged by Helicopter Aerial Surveys Proprietary Ltd for a twelve month contract.
•lain Alister Duff is employed and managed by Helicopter Aerial Surveys Proprietary Ltd’s Sydney office.
•lain Alister Duff is paid a fixed monthly salary and is required to work fixed hours.
•lain Alister Duff is entitled to annual leave. …”
The letter also extracts s 9AA of the 1987 Act, and notes,
“In this instance, Helicopter Aerial Surveys Pty Ltd’s principal place of business is NSW, therefore, NSW is the State of connection and a NSW workers compensation policy would be required.”
(b) An email from Mr Jones to WorkCover dated 9 March 2011[6] seeking a private ruling as to the status of another employee. This contains information including Mr Jones’ daytime (Sydney) telephone number and the address for correspondence is a post office box at Sutherland NSW. The information provided relevantly notes that “All of our commercial business activity is conducted from Sydney … All invoicing is done from Sydney and payments are made direct to our Westpac account in Sydney. The pilots and mechanics are employed and managed from Sydney.”
[6] AALD 25 October 2019, pp 56–60.
(c) An application for S 175C Private Ruling dated 15 November 2013 about another employee of the respondent dated 15 November 2013 providing the same contact details for the respondent as the application in 2011.[7]
[7] AALD 25 October 2018, p 74-76
(d) An email from Mr Jones to the insurer’s investigator, Ms Edwards, of 28 May 2015[8] which states:
[8] AALD 25 October 2019, p 35.
“We operate a USD account at Westpac account [#### #### ##] PO Box […] Sutherland NSW
I transfer one or two transfers a month to our account at the Bank of Guam (BOG), Pohnpei Branch, for local expenses.
…
The address of the account is Tropic Helicopters PO Box […] Sutherland NSW
…
All of our accounts and bookkeeping is [done] by an external accountant. This includes the quarterly BAS, ATO returns etc… The accountant is away sometime next month. The accountant is David Kutcher and Co of Penshurst (where the registered office of Helicopter Aerial Surveys actually is).
…
The bottom line is that the GIO have been through all of this before, complete with an investigator interviewing me, following the salary trail, banking procedures, advice from their lawyers, accepting [the] claim, all on the same working methodology we have been using for ten or more years .... Deju vu (all [over] again)! They have it all on file.”
(e) An undated letter from Westpac Bank to “The Secretary, PO Box […], Sutherland NSW 1499, with details of a USD currency account in the name of the respondent.[9]
[9] AALD 25 October 2019, p 55.
(f) A letter from Mr Jones to GIO dated 18 January 2009[10] on the respondent’s letterhead with the same post office box at Sutherland as the address, with Sydney telephone and facsimile numbers, regarding a previous workers compensation claim for another employee. The letter outlines the management by Mr Jones of the situation for that injured worker at Wewak, Papua New Guinea.
[10] AALD 25 October 2019, pp 92–93.
(g) An Employer Injury Claim Report form completed by Mr Jones dated 5 February 2009[11] regarding a former employee’s claim which gives Mr Jones’ home address in Sydney’s southern suburbs, the same PO Box at Sutherland, and his Sydney phone number for contact.
[11] AALD 25 October 2019, pp 94–95.
(h) A document entitled “Contract of Employment” which relevantly states as follows:
“This contract is made between Helicopter Aerial Surveys Pty Ltd, ABN 55 088007765 of [address in Sydney’s southern suburbs], hereinafter referred to as the Employer, and Ian Alister Fife Duff, of Brisbane Australia, hereinafter referred to as the Employee, for the position of Maintenance Coordinator…”
In the definitions section of the contract of employment the following appears:
“Place of Engagement Sydney Australia”
And further at paragraph [4] entitled “Jurisdiction, Location and Conduct of Work”:
“The Employee's point of hire is from Sydney Australia. Both parties agree to submit to the jurisdiction of the Commonwealth of Australia.”
Finally, the agreement includes at cl 13 an Entire Agreement clause which states as follows:
“The Employer and the Employee certify that they have read the foregoing agreement, and that they fully understand its terms and conditions. This document constitutes the entire agreement between Employer and Employee, and that no promises or understandings have been made to imply other than those stated in the foregoing agreement.”
The agreement is then signed and dated 3 January 2014.[12]
[12] AALD 25 October 2019, pp 27–29.
THE ARBITRATOR’S REASONS
The Arbitrator noted that whether the appellant employer conducted business or had a registered office overseas was irrelevant to the consideration of section 9AA(3)(c) of the 1987 Act.[13] He found that the evidence established that the employer’s principal place of business in Australia was in New South Wales at the time of injury. The Arbitrator found the evidence of the respondent’s administrative, financial, employment and operational activities which occurred in New South Wales satisfied the test in Martin v R J Hibbens Pty Ltd[14] in which Roche DP cited Tamboritha Consultants Pty Ltd v Knight.[15] That the helicopter work was all outside Australia and some administrative tasks were conducted in Micronesia was not relevant for the purposes of section 9AA(3)(c) of the 1987 Act.
[13] Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1 (O’Donohue) at [79], [80], [84] per Roche DP.
[14] [2010] NSWWCCPD 83.
[15] [2008] WADC 78.
The Arbitrator further noted that Mr Jones’ prudent efforts to establish the business’s compensation insurance position provided the basis for the conclusion that the Australian principal place of business of the respondent is at Sydney. The Arbitrator also noted that there was no evidence of a place of business in any other Australian state.
GROUND OF APPEAL
The appellant advances a single ground of appeal. The appellant asserts:
“The Arbitrator erred in finding that the Respondent’s principal place of business in Australia is located in New South Wales and in doing so overlooked material facts and/or failed to give them appropriate weight.”
LEGISLATION
Section 9AA(3) of the 1987 Act 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.”
SUBMISSIONS
The appellant’s submissions
The appellant employer’s assertions regarding the lack of evidence did not call on any evidence, rather it made submissions that evidence was insufficient and pointed to these holes in the evidence. The appellant submits that had the overlooked facts been considered, or other facts been given more weight, then there would not have been a finding that the employer’s principal place of business in Australia is located in New South Wales. The appellant makes various assertions regarding a lack of evidence, including the assertion that inferences were made by the Arbitrator where there was no evidence:
(a) as to where the main operations of business were conducted other than in Pohnpei, Micronesia;
(b) upon which to ground the Arbitrator’s finding that the business’s ‘base’ was in the southern Sydney suburb where Mr Jones lived;
(c) that someone was employed in New South Wales for administrative work;
(d) to support the finding that the “business has a small management business in the modern days of email and other means of internet communication” (noting however that it was true Mr Jones communicated by email and telephone); and
(e) that Mr Duff or anyone else performed work in New South Wales.
The appellant submitted that the fact that original source documents were retained in Pohnpei was consistent with them being generated there, rather than in New South Wales.
The appellant submits the fact the ASIC registered office was designated to be at the business’s accountant at Penshurst New South Wales was not determinative. The appellant submits the Arbitrator did not consider Mr Duff’s wages were paid into a Bank of Guam account from the employer’s office in Pohnpei. The appellant submits that had the Arbitrator considered those matters, he would not have found the employer’s principal place of business to be New South Wales.
The respondent’s submissions
Mr Duff submits that the conclusions reached by the Arbitrator were open to him and disclosed no appealable error. Mr Duff submits that the Arbitrator correctly observed that it is irrelevant to s 9AA(3)(c) that the employer conducts business or has a registered office overseas. Mr Duff notes that the evidence that the appellant employer conducts business in Sydney is compelling, noting the source of evidence about the employer’s business activity comes predominantly from its director, Mr Jones. Mr Duff submits that the Arbitrator’s inference that the appellant has a small management business run from New South Wales was available to him and consistent with the evidence.
Mr Duff submits that it is immaterial that source documents were retained in Pohnpei and that the appellant provided no explanation as to why the fact he was paid into his account in Guam was significant. The relevant question was the activity in Australia, and on that question, only New South Wales was referred to by the business itself. Mr Duff submits that the evidence of Mr Jones stands uncontroverted in circumstances where the appellant is the body best placed to call contrary evidence if such evidence exists. The fact this was not provided meant the Arbitrator was able to comfortably draw the inference he did and there was no error.
DISCUSSION
The learned Arbitrator found that there was “enough evidence” to establish that the respondent’s principal place of business was in Sydney,[16] before making the formal finding that the respondent’s employment with the appellant was connected with New South Wales.[17] This was a finding of fact.
[16] Duff v Helicopter Aerial Surveys Pty Limited [2019] NSWWCC 382 (Reasons), [29].
[17] Reasons, [34].
For a finding of fact such as this to be disturbed on appeal, it must be shown that the Arbitrator was wrong.[18]
[18] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [19].
In particular at [19] of Raulston, Roche DP said as follows:
“…
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
The leaned Arbitrator at Reasons [19]–[20] set out the correct legal test with respect to s 9AA(3)(c), and no issue has been taken with this formulation. The learned Arbitrator then proceeded to consider and find facts which collectively are then used by the learned Arbitrator to make his ultimate finding at Reasons [34]. As I have described above at [23]–[24], the appellant must show that the learned Arbitrator was in fact wrong. There are two pieces of evidence which are very inconvenient to the appellant’s case which have not been dealt with in terms. Mr Barry Jones is the company director of the appellant company, Helicopter Aerial Surveys Pty Limited, and has occupied that position for 26 years.[19] This statement, obtained by the appellant’s insurer from the appellant’s director, reveals that Mr Jones is in a position to give relevant evidence and admissions about the appellant’s business. The appellant has taken no issue with this fact. The second fact is derived from Mr Jones’s communications with WorkCover in which he states as follows:
“We are an Australian Incorporated company located in Sydney NSW … All of our commercial business activity is conducted from Sydney.”[20]
[19] ARD, p 7.
[20] AALD 25 October 2019, p 56.
Additionally, I would remark that the contract of employment between the appellant and the injured worker records the appellant’s address as an address in Sydney’s southern suburbs and in two places records that the place of engagement or point of hire is Sydney. This contract is signed by the respondent worker and Mr Jones on behalf of the appellant.
For the appellant to make good its challenge to the learned Arbitrator’s factual findings, it effectively must displace this evidence coming from the appellant’s director Mr Jones. Indeed the inferences which the appellant now urges upon this Commission on appeal would require the rejection of the evidence of the appellant’s director, which has not been in terms challenged. Whilst the rules of evidence do not strictly apply to these proceedings,[21] as such statements of a director would normally bind a party, they still remain factual elements of the case which must be displaced in order for this appeal to succeed. The learned Arbitrator made the finding that the evidence established that the appellant’s principal place of business in Australia was in New South Wales, based upon the material noted above[22] which in particular refers to the email from Mr Jones to WorkCover. These facts, and in particular the admission that the commercial business activity “is conducted from Sydney”, have not been displaced. The appellant attempts to displace these facts by pointing to what it says are deficiencies in the evidence or where there is no evidence. For example it is asserted, at paragraph [15] pf the application, that “there was no evidence before the Arbitrator on which to base his finding that the business ‘base’ was in [a southern Sydney suburb]”. This statement is incorrect. The contract of employment clearly states that the employer’s address is an address in Sydney’s southern suburbs. (I have compared this address but I do not reproduce it for the purposes of this decision.) This statement appears in the contract the appellant provided to the respondent. I reject this submission.
[21] Section 354(2) of the 1998 Act.
[22] Reasons, [21].
The appellant asserts that there is no evidence that the employer employs anyone in New South Wales to answer telephone calls, clear the mailbox, answer queries or letters.[23] This is not determinative nor relevant to the question as to the employer’s principal place of business. To the contrary, there is the uncontested evidence of Mr Jones that “all of our commercial business activity is conducted from Sydney”.
[23] Submissions, [16].
The appellant also complains that the Arbitrator did not take into account that wages were paid in Guam.[24] It is not disputed that the respondent worker was present working in Pohnpei at the time of his accident. It is a matter of no moment that Mr Duff received payment at the place where he was working. The fact that work is conducted overseas, consistent with Roche DP’s comments in O’Donohue,[25] does not detract from the employer’s principal place of business being in New South Wales if it has otherwise been proven. This submission does not advance the appellant’s case.
[24] Submissions, [24].
[25] O’Donohue, [79], [80], [84].
There was available to the learned Arbitrator uncontroverted evidence that the appellant’s principal place of business was in New South Wales. No error in the learned Arbitrator’s approach has been identified and as a consequence this appeal must fail.
DECISION
The Certificate of Determination dated 2 December 2019 is confirmed.
Judge Phillips
PRESIDENT
3 August 2020
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