I.C. Formwork Services Pty Limited v Moir (No 2)

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

I.C. Formwork Services Pty Limited v Moir (No 2)

Citation:

[2020] ACTCA 44

Hearing Date:

4 August 2020

DecisionDate:

4 September 2020

Before:

Mossop, Loukas-Karlsson and Collier JJ

Decision:

See [84]

Catchwords:

APPEAL – WORKERS COMPENSATION – Determination of substantive law applicable to common law claim – “State or Territory of connection” – application of tests in s 36B(3) Workers Compensation Act 1951 (ACT) – whether respondent “usually works in the ACT” – respondent usually works in the ACT and NSW – appeal upheld

PRACTICE AND PROCEDURE – DECLARATORY JUDGMENTS – nature of – whether final or interlocutory – declaration is necessarily final

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 50, 1521

Workers Compensation Act 1951 (ACT), ss 36A, 36B, 182B, 182D, pt 9.2

Workers Compensation (Cross-border Workers) Amendment Act 2014 (ACT)

Cases Cited:

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301

Avon Product Pty Ltd v Falls [2010] ACTCA 21; 5 ACTLR 34
Dillon v RBS Group (Australia) Pty Limited [2017] FCA 896; 252 FCR 150
Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317
Evans v Marmont (1997) 42 NSWLR 70
Ferguson v WorkCover Queensland [2013] QSC 78

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540
Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; 196 FLR 361
Insurance Australia Ltd v Motor Accidents Authority of New South Wales [2007] NSWCA 314
IC Formwork Services Pty Ltd v Moir [2020] ACTCA 4

International General Electric Co of New York Ltd v Customs and Excise Commissioners[1962] Ch 784 
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1
Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83; 8 DDCR 535
Medici Clinics (Australia) Pty Ltd and Medici Clinics Pty Ltd v Patel [2014] ACTSC 29
Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78
Tapia v Woolworths [2016] ACTSC 129; 310 FLR 265
Telstra Corporation Limited v State of Queensland [2013] FCA 1296; 217 FCR 181
The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327

Warramunda Village Inc v Pryde [2002] FCA 250; 116 FCR 58

Texts Cited:

Australian Capital Territory Parliamentary Debates, Legislative Assembly, 25 September 2014

Parties:

I.C. Formwork Services Pty Limited (Appellant)

Nigel James Moir (Respondent)

Representation:

Counsel

A Muller (Appellant)

C Erskine SC and J Sainty (Respondent)

Solicitors

Minter Ellison (Appellant)

Blumers Personal Injury Lawyers (Respondent)

File Number:

ACTCA 38 of 2019

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Elkaim J

Date of Decision:          30 August 2019

Case Title:  Moir v I.C. Formwork Services Pty Limited

Citation: [2019] ACTSC…

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Details
Case
[2020] ACTCA 44
Decision Date

CaseChat Overview and Summary

The appeal concerned the determination of the substantive law applicable to a common law claim for workers' compensation. The appellant, I.C. Formwork Services Pty Limited, appealed a decision of the Supreme Court of the Australian Capital Territory which had found that the *Workers Compensation Act 1951* (ACT) applied to the respondent, Mr Moir. The core of the dispute revolved around whether Mr Moir "usually works in the ACT" for the purposes of section 36B(3) of the Act.

The primary legal issue before the Full Court of the Supreme Court of the Australian Capital Territory was to determine the correct application of section 36B(3) of the *Workers Compensation Act 1951* (ACT) in ascertaining the "State or Territory of connection" for a worker who performed work in multiple jurisdictions. Specifically, the Court had to decide whether Mr Moir's work arrangements meant he "usually works in the ACT" within the meaning of the legislation, thereby establishing the ACT as the relevant jurisdiction for his common law claim.

The Court reasoned that the phrase "usually works in the ACT" required an assessment of the worker's habitual place of employment, considering the totality of their work activities. It was held that Mr Moir's evidence established that he usually worked in both the ACT and New South Wales, and that the previous judicial interpretation of "usually works" did not necessitate exclusive work within a single jurisdiction. The Court found that the primary judge had erred in their application of the statutory test, leading to the conclusion that the ACT was indeed the State or Territory of connection. Consequently, the appeal was upheld.

Orders

Orders of the court

See [84]

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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