Moir v I.C. Formwork Services Pty Limited (No 2) - [2022] ACTSC 53

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Moir v I.C. Formwork Services Pty Limited (No 2)
Citation:	[2022] ACTSC 53
Hearing Dates:	6 December 2021, 18 March 2022
DecisionDate:	24 March 2022
Before:	Elkaim J
Decision:	See [61]-[62]
Catchwords:	CIVIL LAW – WORKERS COMPENSATION – Personal Injury – Territory or State of connection –– where the matter was appealed and referred back to the primary judge for further hearing – operation of s 36B of the Workers Compensation Act 1951 (ACT) – meaning of “usually” – whether the plaintiff usually worked in the ACT or NSW – judgment for the plaintiff
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1521 Workers Compensation Act 1951 (ACT) s 36B, 182D
Cases Cited:	Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186 I.C. Formwork Services Pty Ltd v Moir (No 2) [2020] ACTCA 44; 15 ACTLR 207 IC Formwork Services Pty Ltd v Moir [2020] ACTCA 4 Moir v I. C. Formwork Services Pty Ltd [2019] ACTSC 246 Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78; 58 SR (WA) 291
Parties:	Nigel James Moir ( Plaintiff) I.C. Formwork Services Pty Limited ( Defendant)
Representation:	Counsel C Erskine SC and J Sainty ( Plaintiff) A Muller ( Defendant)
Solicitors Blumers Personal Injury Lawyers ( Plaintiff) MinterEllison ( Defendant)
File Number:	SC 169 of 2018

ELKAIM J:

On 30 August 2019 I gave my initial decision in this matter (Moir v I. C. Formwork Services Pty Ltd [2019] ACTSC 246). I set out the background to the matter as follows:

1.The plaintiff commenced proceedings with the filing of an Originating Claim on 20 April 2018. The annexed Statement of Claim seeks damages arising from an injury suffered by the plaintiff, in the course of his work, on 26 May 2015. The defendant was the plaintiff’s employer.
2.According to the Statement of Claim the plaintiff hurt his back when he was required to lift a very heavy formwork shutter at a worksite in Willinga Park in New South Wales. Willinga Park is in a coastal town called Bawley Point. There is an Amended Statement of Claim but it does not affect the relevant issues presently before me.
3.Paragraph 1.4 of the Statement of Claim asserts that, for the purposes of section 182D of the Workers Compensation Act 1951 (ACT), the law to be applied is that of the ACT.
4.The defendant, by a Defence filed on 22 August 2018, has denied the assertion made in paragraph 1.4. The defendant says the applicable law is that of New South Wales. The distinction is important because the respective laws of NSW and ACT are different and whichever is applicable, will produce a very different result for the plaintiff. Suffice to say the plaintiff is much better off under ACT law.
5.On 21 March 2019 the plaintiff filed an Application in Proceeding in which he seeks a declaration to resolve the issue raised by paragraph 1.4.

I decided in…

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.

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Details

Case: [2022] ACTSC 53
Decision Date

CaseChat Overview and Summary

The case of Moir v I.C. Formwork Services Pty Limited (No 2) concerns a claim for damages for a personal injury sustained by the plaintiff while working for the defendant. The plaintiff, Nigel James Moir, sought damages for an injury he suffered on 26 May 2015 while lifting a heavy formwork shutter at a worksite in Willinga Park, New South Wales. The primary dispute was whether the applicable law for the claim was that of the Australian Capital Territory (ACT) or New South Wales (NSW), with the former being more favourable to the plaintiff. The case was initially heard and decided in favour of the plaintiff by Elkaim J in Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246. However, the defendant successfully appealed the decision in I.C. Formwork Services Pty Limited v Moir [2020] ACTCA 4, leading to a second hearing before Elkaim J. The Court of Appeal had set aside the original declaration and referred the matter back to Elkaim J for further hearing, focusing on the question of where the plaintiff was usually based for the purposes of his employment under s 36B of the Workers Compensation Act 1951 (ACT).

During the second hearing, Elkaim J addressed the issues raised by the Court of Appeal's decision and considered the evidence presented by both parties. Elkaim J rejected the defendant's argument that the relevant timeframe for determining where the plaintiff was usually based should be limited to the period surrounding the injury. Instead, Elkaim J found that the timeframe should encompass the plaintiff's entire employment with the defendant. After examining the evidence and applying the factors set out in s 36B(7) of the Workers Compensation Act 1951 (ACT), Elkaim J concluded that the plaintiff was usually based in the ACT for the purposes of his employment. Consequently, the substantive law to be applied to the plaintiff's claim for damages was that of the ACT.

Elkaim J's decision was based on the understanding that the nature of the plaintiff's work required him to be directed to different worksites, and if those worksites were predominantly in the ACT, then the plaintiff was usually based in the ACT. Elkaim J also considered the factors set out in s 36B(8) of the Workers Compensation Act 1951 (ACT) for determining the defendant's principal place of business. Ultimately, Elkaim J found that the defendant's principal place of business was in the ACT, as most of its formwork business was conducted there.

In conclusion, Elkaim J answered the questions posed by the plaintiff's application under r 1521 of the Court Procedures Rules 2006 (ACT) as follows:

1. Pursuant to section 36B(3)(b) of the Workers Compensation Act 1951 (ACT), in which Territory or State was the plaintiff usually based for the purposes of his employment? Answer: The Australian Capital Territory.
2. If no Territory or State or no single Territory or State is identified, pursuant to section 36B(3)(c) of the Workers Compensation Act 1951 (ACT), where was the defendant's principal place of business located? Answer: Not relevant, having regard to the answer to the previous question. Had the question been relevant, the answer would have been the Australian Capital Territory.
3. Pursuant to s 182D of the Workers Compensation Act 1951 (ACT), what is the substantive law to be applied to the plaintiff's claim for damages? Answer: The Australian Capital Territory.

Orders