I.C. Formwork Services Pty Limited v Moir - [2023] ACTCA 31

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	I.C. Formwork Services Pty Limited v Moir
Citation:	[2023] ACTCA 31
Hearing Date:	14 November 2022
Decision Date:	19 July 2023
Before:	McCallum CJ, Loukas-Karlsson and O’Sullivan JJ
Decision:	The appeal is dismissed.
Catchwords:	APPEALS – WORKERS COMPENSATION – Substantive law applicable to determine the claim for damages – “State or Territory of connection” – application of employment connection test in s 36B(3) of the Workers Compensation Act 1951 (ACT) – whether the worker was “usually based” in the ACT
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1521 Legislation Act 2001 (ACT) ss 139, 141 Workers Compensation (Cross-border Workers) Amendment Act 2014 (ACT) Workers Compensation Act 1951 (ACT) pt 4.2A; ss 36B, 36C, 182D
Cases Cited:	Avon Products Pty Ltd v Falls [2010] ACTCA 21; 5 ACTLR 34 Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44 Moir v I.C. Formwork Services Pty Limited (No 2) [2022] ACTSC 53 Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246
Texts Cited:	Australian Capital Territory, Parliamentary Debates, 21 October 2014, Legislative Assembly, 3354-5 (Mick Gentleman, Minister)
Parties:	I.C. Formwork Services Pty Limited (ACN 008 591 811) ( Appellant) Nigel James Moir ( Respondent)
Representation:	Counsel A Muller ( Appellant) C Erskine SC with J Sainty ( Respondent)
Solicitors MinterEllison ( Appellant) Blumers Personal Injury Lawyers ( Respondent)
File Number:	ACTCA 18 of 2022
Decision under appeal:	Court: Supreme Court Before: Elkaim J Date of Decision: 24 March 2022 Case Title: Moir v I.C. Formwork Services Pty Limited (No 2) Citation: [2022] ACTSC 53

THE COURT:

1․Nigel Moir was employed by the appellant, I.C. Formwork Pty Limited, as a formwork carpenter. In the nature of the construction industry, Mr Moir’s work took him to various building sites which, unfortunately for him (as it turned out), took in more than one jurisdiction, being predominantly in the Australian Capital Territory (ACT) but also in New South Wales (NSW).
2․In May 2015, Mr Moir injured his back while working at a building site in Bawley Point in NSW. He commenced proceedings for common law damages in the ACT Supreme Court. I.C. Formwork Pty Limited denied Mr Moir’s entitlement to have his claim determined according to the substantive law of the ACT.
3․The substantive law to be applied in such a claim is governed by s 182D of the Workers Compensation Act 1951 (ACT), which provides that the question whether a damages claim can be made in relation to a work-related injury and, if so, the determination of the claim are governed by the “Territory or State of connection”. The Territory or State of connection is to be determined in accordance with the provisions of pt 4.2A of the Workers Compensation Act. Section 36C in pt 4.2A provides that, if an issue as to the Territory or State of connection arises in proceedings in a court, the court must…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading I.C. Formwork Services Pty Limited v Moir

Details

AGLC: I.C. Formwork Services Pty Limited v Moir [2023] ACTCA 31
Case: [2023] ACTCA 31
Decision Date: 19 July 2023

CaseChat Overview and Summary

The appeal concerned a claim for damages for personal injury brought by Mr. Moir against I.C. Formwork Services Pty Limited. The dispute arose from an incident where Mr. Moir sustained injuries while working on a construction site. The central question before the Supreme Court of the Australian Capital Territory was which jurisdiction's workers compensation law applied to Mr. Moir's claim.

The primary legal issue before the Court was the interpretation and application of section 36B(3) of the *Workers Compensation Act 1951* (ACT). This provision dictates the substantive law applicable to a claim for damages where there is a connection to more than one State or Territory. Specifically, the Court had to determine whether Mr. Moir was "usually based" in the Australian Capital Territory for the purposes of this section.

The Court reasoned that the "usually based" test required an assessment of the worker's habitual place of employment. Applying this test to the facts, the Court found that Mr. Moir's employment had a sufficient and substantial connection to the Australian Capital Territory, meaning he was usually based there. This conclusion was based on the evidence presented regarding the nature and duration of his work within the ACT.

Consequently, the appeal brought by I.C. Formwork Services Pty Limited was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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