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 |
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 favour of the plaintiff and made this declaration:
The Court finds that the plaintiff usually worked in the Australian Capital Territory and therefore the common law workers compensation claim arising out of the negligence of the defendant should be determined by the law of the Australian Capital Territory.
The defendant thought my decision was wrong and appealed. Following a successful application for leave to appeal (IC Formwork Services Pty Ltd v Moir [2020] ACTCA 4), the defendant also succeeded in the Court of Appeal (I.C. Formwork Services Pty Ltd v Moir (No 2) [2020] ACTCA 44; 356 FLR 111).
The Court of Appeal set aside the declaration that I had made and referred the matter back to me for directions.
The current application seems to have resulted from comments made by Mossop J (with whom Loukas-Karlsson J and Collier J agreed) in the Court of Appeal concerning the procedure followed at the first hearing before me. His Honour was critical of both the manner in which the case was run and also the conclusions reached by Murrell CJ in the leave application where her Honour felt that the orders I had made were interlocutory. Mossop J did not agree.
The matters discussed in the previous paragraph are not strictly relevant to the present hearing. More important are Mossop J’s comments concerning the plaintiff’s usual place of work. His Honour, at [49] said the correct test was:
The alternative approach is to find that the statutory framework provided by s 36B(6) compels regard to be had to the 12 month period prior to the date in question and, directly or indirectly, requires that period to be the focus of the enquiry as to where the worker usually works. This arises principally from the specific reference in that subsection to the worker’s work history with the employer over the previous 12 months.
His Honour then continued at [50]:
In my view, the latter approach is the appropriate one. My reasons for that conclusion are as follows:
(a)The purpose of the employment connection test is to provide a means of allocating responsibility for workers compensation insurance and common law liability to a single jurisdiction within Australia.
(b)The cascading test in s 36B(3) provides a series of alternative connecting factors which reflect a policy hierarchy for determining the “Territory or State of connection”. Where the worker usually works is the most important factor, followed by where the worker is usually based, followed by the employer’s principal place of business. This hierarchy of factors reflects a non-arbitrary means of determining the jurisdiction in which liability arises. Notwithstanding that there is a discernible policy scheme in the hierarchy, it must be recognised that of ultimate importance is the certainty of allocation to one jurisdiction or another.
(c)In elaborating upon the concept of “usually works”, a non-hierarchical collection of factors to which regard must be had are identified in s 36B(6)(a) and a single factor to which regard must not be had is identified in s 36B(6)(b). So far as those matters are concerned, it is significant that specific time periods have been identified in s 36B(6)(a)(i) and s 36B(6)(b). The specific rationale for adopting the 12 month and six month periods is not identified in the legislation. However, the adoption of those periods is significant. The specification of a 12 month period as opposed to some other period in subpara (6)(a)(i) must be given some significance. It clearly reflects a legislative choice. If, instead of specifying “over the previous 12 months” the legislature had said “over the course of the workers employment with the employer”, that would clearly have given a legislative indication of the relevant period. I do not consider that the fact that para (6)(a) does not in its terms preclude regard being had to a broader period means that the legislative specification of the 12 month period can be given little weight.
(d)It has been recognised that some statutes which specify matters to which regard must be had do more than provide an unconstrained checklist of matters which must be considered. Rather, the specification of such matters requires that they be given weight as a fundamental or focal element of the decision-making process: The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333; R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Insurance Australia Ltd v Motor Accidents Authority of New South Wales [2007] NSWCA 314 at [40].
(e)By specifying the matters to which regard must be had, the legislature was not merely specifying a number of matters which might be taken into account by giving them equal significance to the universe of possible matters relevant to the question of where the worker usually worked. Rather, it was specifying the focal points of the analysis required in each case. By identifying the matters in s 36B(6), the legislature was providing a framework in which the issue was required to be analysed. Of particular relevance to the grounds of appeal in this case is the specification of the 12 month period in subpara (6)(a)(i), any period worked in a Territory or State in subpara (6)(a)(iv) and the exclusion from consideration of temporary arrangements not longer than six months in para (6)(b).
(f)The combined effect of the need to treat the 12 month period as a focal point for the consideration of where the worker usually works, and the necessity to have regard to all periods spent in a Territory or State unless excluded under para (6)(b), is that where the worker worked during the 12 month period cannot be disregarded in deciding what is usual.
(g)In my view, it is inconsistent with the statutory framework to reframe the enquiry as to where the worker usually works by reference to the whole of the period of employment, so as to prevent what occurred in the 12 month period being characterised as usual. That is because that 12 month period is identified as the statutory focal point for consideration (albeit not necessarily an exclusive one) and there is relevant data within that period.
His Honour then, at [51] and [52], set out the manner in which it is proposed the test would apply practically:
51.Adopting this approach, if the work history of the worker in the 12 month period discloses that it is usual for the worker to work in a particular jurisdiction, it would be inconsistent with the framework provided by s 36B(6) to reach a conclusion that the worker did not usually work in that jurisdiction by reference to the history of employment outside the 12 month period.
52.Put somewhat differently, the temporal framing of the issue is not simply at large. Rather, it must occur within the framework provided by subs (6). That tends to narrow the focus of enquiry, reduce the uncertainties as to the outcome of the evaluative process of deciding where the worker usually works and hence promote the purpose of the legislation to provide certainty of outcomes.
Mossop J, at [54], ultimately identified the error in my approach as follows:
The primary judge’s approach was one which was temporally unconstrained. His Honour was thereby able to frame the question of “usually works” by reference to the whole of the respondent’s employment with the appellant. That permitted an outcome which gave no effect to the regular, customary and habitual pattern of work in the 12 month period prior to the accident. For the reasons that I have given, that was an approach inconsistent with the statutory framework in s 36B(6) and involved an error of principle in addressing the issue required to be determined under s 36B(3).
His Honour then continued, from [65]:
65.Because the period during which the respondent was working at Bawley Point was greater than six months, para (6)(b) means that it is not to be ignored when considering whether or not the respondent usually worked in NSW.
66.The position is therefore that, so far as the 12 month period is concerned, the periods working at the Queanbeyan yard on light duties should not be taken into account as they were temporary arrangements to accommodate recovery from injury. Furthermore, they were for periods of less than six months. On the other hand, the periods at Bawley Point are not excluded by para (6)(b) and must be taken into account in determining where the respondent usually worked. The operation of s 36B(6)(b) is therefore not sufficient to displace the conclusion that the respondent usually worked in NSW as well as in the ACT.
67.For these reasons, the primary judge erred in finding that the respondent usually worked only in the ACT and did not usually work also in NSW. His Honour ought to have found that the respondent usually worked in both jurisdictions.
68. His Honour therefore erred in making the declaration that he did.
The effect of the findings in the previous paragraph is that the Court of Appeal has substituted my finding on the first stage of the cascading test under s 36B for a finding that the plaintiff usually worked in both the ACT and New South Wales.
This led, on 22 February 2021, to the plaintiff filing an application under r 1521 of the Court Procedures Rules 2006 (ACT) requesting the answers to the following questions:
1. With reference to paragraph 1.4 of the amended statement of claim filed by the Plaintiff which states ‘[t]he plaintiff contends that the Territory or State of connection for the purposes of s 182D of the Workers Compensation Act 1951 applicable to this claim is the Australian Capital Territory,’ being an allegation which is denied by the Defendant at paragraph 4 of the defence filed in the proceedings;
1.1.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?
1.2.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?
1.3.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?
Thus the next stage of the test is enlivened, namely to answer the question of where the plaintiff was usually based. If answered positively in favour of either party that would terminate the enquiry and a decision would follow for the favoured party.
If once again the question was answered neutrally, then the final question to be engaged would be: where is the defendant’s principal place of business?
The ‘original’ evidence has been supplemented by two affidavits of the plaintiff, sworn on 23 November 2020 and 29 March 2021 respectively, an affidavit of Sally Bowler affirmed on 26 February 2021, an affidavit of Carlos Nobile sworn on 23 March 2021 and an affidavit of Paul Mitchell affirmed on 30 March 2021. In addition I have been provided with timesheets for the years 2012 to 2017.
The affidavit of Ms Bowler is the only further evidence filed on behalf of the defendant. Ms Bowler is the defendant’s office manager. She has worked in this position since June 2010. She says that the defendant, in 2015, had its head office in Queanbeyan. It moved to the ACT in July 2016.
While at Queanbeyan “[t]ools, construction material, and machinery owned by I.C. Formwork were stored” at the head office from which administrative and payroll functions were also carried out. I think her evidence supports a distinction between managerial decisions being made at the head office and on site decisions being made wherever work was being carried out.
The plaintiff’s affidavit of 23 November 2020 gives details of his workplaces and goes through what he considers to be the relevant matters necessary for a decision to be made under s 36B(7). He gives some further detail in his second affidavit, of 29 March 2021, which emphasises the extent to which work activities were centred on the relevant worksite.
Mr Nobile was also an employee of the defendant. He says that throughout his employment he worked in the ACT and describes how his daily duties all revolved around the worksite. If, for example, he needed instructions from head office, they were sought through the foreman who was on site.
Mr Mitchell is another former employee of the defendant. He did some work for the defendant in Sydney and in Wagga Wagga. Otherwise all his work for the defendant was in the ACT. He described a similar manner of working to that given by Mr Nobile.
Turning then to the question of where is the plaintiff usually based? Section 36B(7) states:
(7)In deciding whether a worker is usually based in a Territory or State regard must be had to the following:
(a)if the employer provides a place from which the worker is expected to operate—that place;
(b)if a place is stated in the worker’s contract of employment with the employer—that place;
(c)the place from which the worker routinely receives day-to-day instructions from the employer;
(d)the place where the worker attends to collect material for the purposes of their employment;
(e)the place where the worker reports for administrative, human resource and other issues related to the workers’ employment with the employer.
The plaintiff pointed out that s 36B(7) contained no requirement to focus on the 12 months before the injury. Therefore, a wider time frame could be examined, in particular the whole of the period of employment of the plaintiff by the defendant. If this was done the overwhelming majority of work he performed was in the ACT.
The defendant submitted that a more confined time frame was required, limited for current purposes to his work at Bawley Point in New South Wales where he had worked from November 2014 until the end of May 2015, when he was injured.
The defendant abandoned the submission which had been made at [11] of its written submissions:
In those circumstances it is submitted that the entirety of the plaintiff’s employment with the defendant from 2009 to the date of injury is the relevant frame of reference for the determination of where he was usually based for the purpose of his employment.
In Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78; 58 SR (WA) 291, Commissioner Herron said this, commencing at [79]:
79Having determined there is no one State in which the defendant "usually works" for the purposes of s 20(4)(a) I am required to determine whether by s 20(4)(b) there is a State in which the defendant is "usually based for the purposes of [his] employment".
80The use of the expression "usually based" in subpar (b) suggests it has a different meaning to the expression "usually works" in subpar (a). The Shorter Oxford English Dictionary defines "usually" as "(a) in a usual or customary manner; (b) (esp. modifying a sentence) as a rule, generally speaking". "Usual" is defined as "(1) Commonly or customarily observed or practised; having a general currency, validity, or force; current, prevalent. (2) Ordinarily used; constantly or customarily employed; esp. in a specified capacity; ordinary".
Applying the interpretation of “usually”, derived from the Shorter Oxford English Dictionary, “usually” is not confined in the manner suggested by the defendant but rather has a wider application, including as given in the example, “customarily employed”.
I reject the defendant’s submission that the relevant time frame is effectively limited to the period when the plaintiff was working in Bawley Point. The plaintiff worked for the defendant. Over the period of his employment he usually worked for the defendant in the ACT. I can see no basis in the legislation to narrow the period of employment to the time period surrounding the injury. Had that been the intention of the legislature it could have been simply stated, in the same way that s 36B(6)(a)(i) specifically introduces the time limit of “the previous 12 months”.
Having decided that the timeframe is not limited in the manner suggested by the defendant it is then necessary to look at the matters to which regard must be had pursuant to s 36B(7). I will deal with each in turn.
(a) if the employer provides a place of work from which the worker is expected to operate—that place
The nature of the defendant’s business is to carry out formwork at assorted locations. The plaintiff’s participation, as a formworker, was to go to the place where the work was being done and where all of his work-related necessities would be located. Thus, the materials would be on-site as would be his tools. He would participate in any safety meetings, inductions and the like on site. A container was provided by the defendant for storage of any tools and equipment. A site office was also usually present.
The defendant submitted that “[t]he question connotes a place that has a fixed character, not simply a convenient place for the performance of some or all of the work”. In my view this characterisation misses the point. The defendant clearly expected the plaintiff to carry out his work at the place where the work was to be performed. The fact that this place might change from time to time does not affect its nature as a place of work. There is no reason that it should be fixed. Accordingly, I find this factor in the plaintiff’s favour.
(b) if a place is stated in the worker’s contract of employment with the employer—that place
The plaintiff did not identify any contract of employment stipulating a base for employment. The plaintiff submitted that his employment fell under an ACT collective agreement which was subject to ACT legislation.
I prefer the defendant’s submission on this point, namely that “there is no evidence in the form of a contract of employment that identifies a base for the purposes of the employment”. I think this factor refers to any contract of employment between the plaintiff and the defendant, and not to any overriding condition of employment dictated, by for example, an industry agreement. The result is I think this factor is neutral as between the parties.
(c) the place from which the worker routinely receives day-to-day instructions from the employer
The defendant accepted the plaintiff’s assertion that instructions were generally received on site. But, submitted the defendant, management was located in New South Wales and if the instructions emanated from management, then the place from which instructions were received was in New South Wales. The defendant’s ultimate submission, perhaps a little inconsistently, was:
In summary there is no single place, looking at the relevant period as a whole, identified by the evidence as the place from which the worker routinely received day to day instructions.
The plaintiff’s assertion was that all his instructions were received on site. In his affidavit of 23 November 2020, commencing at [29], he says that he was given instructions by the site foreman and construction management. Because the instructions were “site specific” they were received at the site. In addition, he says that the induction talks were given at the site by the foreman and/or construction manager. The same applied to toolbox talks, team directions and safety talks.
I think it is clear that, as far as the plaintiff was concerned, he received his usual instructions on the site. He did not receive instructions, for example by phone, from management in Queanbeyan. Management may have directed him to a site but once at the site, his day-to-day work was dictated by persons on-site, in particular the foreman.
(d) the place where the worker attends to collect material for the purposes of their employment
The defendant “accepted that for the most part materials were delivered to the site and the plaintiff was not involved in the exercise of attending a place to collect them”. But said the defendant, “[t]here was no place that he was “usually” required to attend and collect materials”. I think the distinction is without merit. The plaintiff attended his worksite where he obtained access to the materials he needed. The fact that the materials were already present at the worksite, or given to him at the worksite, is immaterial.
The defendant also submitted that there was no place that the plaintiff was ‘usually’ “required to attend and collect materials”. But if the materials were gathered by him at the worksite, then that was his habit, that was what was usual.
(e) the place where the worker reports for administrative, human resource and other issues related to the workers’ employment with the employer
The defendant submitted that, for purposes of this factor, a single place could not be identified. The plaintiff submitted that his administrative work would be completed in the shed or office that had been located on site. Injuries were reported to the safety officer who was at the workplace. Payslips were emailed to the plaintiff and training courses were undertaken in the union offices in the ACT.
I agree with the defendant to the extent that no specific place could be identified. However this is more because the plaintiff did not need to attend any place for administrative and human resource issues. This is therefore a neutral factor.
It can be seen from the above that in evaluating the five factors dictated by s 36B(7) I have, with two exceptions, accepted the plaintiff’s submissions. The two exceptions however do not assist the defendant because I allocated a neutral status to those two factors.
The defendant did submit that neutral findings could result in an inability to identify a usual base of work. Central to the defendant’s submissions was the “peripatetic” nature of the plaintiff’s work. In essence the defendant submitted that where a worker moved from worksite to worksite he could not have a usual base. I disagree. I do not see why it cannot be usual for a worker to be based at different places. If the nature of his work is that his employer moves him around to do tasks at different places then he is usually based at the places where he is directed to work. If those places are predominantly in the ACT then he is “usually based” in the ACT.
Returning to the application in proceeding (the separate questions); having reached the above conclusion it follows that Question 1.1 should be answered: the plaintiff was usually based in the ACT for the purposes of his employment.
Because the answer to Question 1.3 follows without more, this question should be answered: The substantive law to be applied to the plaintiff’s claim for damages is that of the ACT.
My above findings obviate the need to deal with Question 1.2. However the question was argued and a decision might dispel the need for a further hearing should there be a successful appeal against the answers I have already indicated.
Had I answered Question 1.1 in the manner suggested by the defendant, namely that no usual base had been identified, I would have had to decide, pursuant to s 36B(8) where was the employer’s principal place of business in Australia.
The defendant had approached the hearing on the basis that the plaintiff did not dispute that the defendant’s principal place of business was in New South Wales. This was a reasonable assumption, in particular considering that the plaintiff’s written submissions make no contrary assertion. I therefore allowed the defendant to consider whether it wished to lead any further evidence or make further submissions.
Both parties filed further written submissions. They were supported by short oral submissions on 18 March 2022. Both parties referred to the legislative background to s 36B. Their arguments can be used in support of their respective interpretations. Ultimately I think the answer lies in the wording of subsection (8).
Again the subsection sets out some mandatory factors to which a court must have regard (see s 36B(8)). These are:
(8) In deciding where the employer’s principle place of business in Australia is located regard must be had to the following:
(a)the place where the employer conducts the main part or majority of its business;
(b)the address registered on the Australian Business Register in connection with the employer’s ABN;
(c)if the employer is not registered for an ABN—the Territory or State registered by ASIC as the jurisdiction in which the employer’s business or trade is carried out;
(d)if the employer is not registered for an ABN or with ASIC—the employer’s business mailing address.
Subsections (c) and (d) fall away because subsection (b) had the positive answer of New South Wales.
The plaintiff’s submissions in respect of subsection (a) were twofold:
(a)Subsection (a) was a more persuasive factor than (b).
(b)The business of the defendant was formwork. It followed that its principal place of business was where it conducted the formwork. It did not matter that its head office might have been in Queanbeyan. If most of the formwork that it performed was in the ACT then this Territory was the principal place where it carried out business.
The defendant’s response was to take me to a decision of the Western Australian Court of Appeal in Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186, in particular the following passages:
66Section 20(4)(c) of the WCIM Act refers to 'the State [or Territory] in which the employer's principal place of business in Australia is located'. The reference is to a place in a State and in Australia. The reference is not to a place which is a State. This language contemplates a particular place in a State which is the principal place of business.
67The reference to a place in a State counts against a construction which identifies the place where most of the business activity conducted by the employer occurs. Many employers will conduct business at a number of different places.
68For example, the employer may manufacture goods at a factory, sell those goods from a series of showrooms, and install the goods at a customer's premises. A business providing plumbing, electrical or like services may have premises from which work is dispatched, administrative tasks performed and equipment stored. However, most of the services will be provided at the premises of a diverse range of customers. The customer's premises will not, on any ordinary understanding of the term, form part of the employer's principal place of business.
69In the above examples, even if the State from which the business mostly operates is readily identifiable, the place within the State at which most business activity is carried out may be very difficult to ascertain due to the diverse locations where those activities are undertaken. In these examples, the employer may have no principal place of business in a State, if the phrase refers to the place where business activities are principally carried out, even though there is only one State in which most of the employer's business is conducted.
70The above considerations count against the reference to a single place in a State or Territory which is the principal place of business being the principal place where business activities occur. Rather, the reference to a single place strongly suggests that what is contemplated is the principal place from which business activities are managed or controlled.
Following these guidelines the principal place of business would have been in Queanbeyan. The defendant also pointed out:
Further, had it been intended that section (8) would make clear that s 36B(3)(c) was directed to the determination of the state or territory that was the jurisdiction in which the main part or majority of the business of the employer was conducted, it would have been a very simple matter to use the words “state or territory” in s 8 (a) in lieu of “place”. There would have been no need to go further if that was the intention of the amendment.
My initial view was to agree with the submission made at [15] of the defendant’s supplementary submissions:
The use of “place,” in concert with the inclusion of the “ASIC factors”, in s( 8) (sic) makes clear that the section is directed to the identification of a particular location or address that is properly to be regarded as the employer’s principal place of business, and not to the determination of the state or territory in which the majority of the employer’s work is performed at a particular time. For many organisations, application of the latter approach may be different depending on the measure to be applied- value of contracts, profit generation, number of employees, value of assets. Such an interpretation does little to provide greater clarity in the application of the third limb of the test.
The defendant also submitted that whatever decision I made as to the timeframe in respect of s 36B(7), it should not be broadened when considering subsection (8). When the accident occurred not only was the plaintiff working in New South Wales but the defendant’s primary location (for example it’s administrative offices and storage facilities) was in Queanbeyan.
In addition it is notable that s 36B(7) refers to the “Territory or State” where the worker is usually based whereas s 36B(8) refers to the employer’s “principal place of business in Australia”. This could be seen as an indication that the legislation is directed to a single location, consistent with, for example, a head office.
The plaintiff responded that the relevant part of the Western Australian legislation was not the same as in the ACT. It does not have the equivalent of s 36B(8)(a). Therefore a court in Western Australia would take a different approach to an employer that conducted its business at different locations.
Again initially, I thought a fundamental flaw in the plaintiff’s argument was that its interpretation required a court to examine the business of an employer with an impractical exactitude. Imagine an employer with contracts being performed equally in both the ACT and New South Wales. Would a court be called upon to examine those contracts so as to decide where 51 per cent of the work was being done? Would this calculation be done on the value of the contracts, the time taken to perform them, the number of employees at each location or some other indicator?
The plaintiff’s response, in oral argument, was that if subrule (8)(a) created a scenario that was too confusing then the Court would simply move on to subrule (8)(b).
Ultimately I have been swayed by the wording of subrule (8)(a), in particular the words “where the employer conducts the main part or majority of its business”. There is, in my view, a clear intention to contemplate that the employer might conduct its business in more than one place. Further the word “majority” suggests an assessment of where the business is taking place.
In this case it was accepted that most of the business of the employer, namely carrying out formwork, occurred in the ACT. On that basis, had I been called upon to answer Question 1.2, I would have decided in favour of the ACT.
Returning to the questions posed at [12] above I answer them as follows:
Question 1.1: 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.
Question 1.2: 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.
Question 1.3: 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.
The defendant is to pay the plaintiff’s costs of these proceedings. I will hear the parties if any other costs order is sought.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
5
0