IC Formwork Services Pty Ltd v Moir

[2020] ACTCA 4

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

IC Formwork Services Pty Ltd v Moir

Citation:

[2020] ACTCA 4

Hearing Date(s):

31 January 2020

DecisionDate:

31 January 2020

Before:

Murrell CJ

Decision:

See [24].

Catchwords:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal out of time – Application for leave to appeal interlocutory decision – Whether decision interlocutory – Whether appeal arguable – Workers compensation – Territory or state of connection

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 5312

Supreme Court Act 1933 (ACT) ss 37E, 37J

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

Cases Cited:

Avon Products v Magrit Falls [2010] ACTCA 21

Moir v IC Formwork Services [2019] ACTSC 246

Parties:

IC Formwork Services Pty Ltd (Applicant)

Nigel James Moir (Respondent)

Representation:

Counsel

A Muller (Applicant)

M Cranich SC with J Sainty (Respondent)

Solicitors

Minter Ellison (Applicant)

Blumers Lawyers (Respondent)

File Number(s):

ACTCA 38 of 2019

Decision under appeal: 

Court/Tribunal:             Supreme Court

Before:  Elkaim J

Date of Decision:          30 August 2019

Case Title:  Moir v IC Formwork Services Pty Ltd

Citation: [2019] ACTSC 246

Murrell CJ

1. On 9 September 2019, the applicant lodged an application for leave to appeal against a declaration made by Elkaim J (the primary judge) on 30 August 2019: Moir v IC Formwork Services [2019] ACTSC 246.

1. On 10 October 2019, the applicant applied for an extension of time within which to make the application for leave to appeal from the primary judge’s decision.

The case

1. The proceedings concern a personal injury claim arising out of an injury suffered by the respondent on 26 May 2015 in the course of his employment as a formwork carpenter at a work site in Bawley Point, NSW.  The applicant was the respondent’s employer. 

1. The respondent says that, for the purposes of s 182D of the Workers Compensation Act 1951 (ACT) (Workers Compensation Act), the law to be applied is that of the ACT.  The applicant says that the applicable law is that of New South Wales.

1. The primary judge found that, although the applicant operated from premises in Queanbeyan, NSW, most of its business occurred at work sites in the ACT: at [15]. The applicant had asked the respondent to assist with a large project in Bawley Point: at [16]. The respondent worked at Bawley Point from November 2014 until July 2015, when he was certified unfit to work. From early 2015, he expressed disenchantment with working in Bawley Point and a desire to return to work in the ACT. More recently, the respondent has worked, but only in the ACT.

1. The primary judge declared that, for the purposes of s 36B(1) of the WorkersCompensation Act, the ACT was “the Territory or State of connection”, principally because it was the Territory or State “where the respondent usually worked in the employment” within the meaning of s 36B(3)(a): at [24]. In reaching that conclusion, his Honour had regard to s…