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 |
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 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…
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- Case
- [2022] ACTSC 53
- Decision Date
CaseChat Overview and Summary
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.
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