ON APPEAL FROM THE SUPREME COURT OF Workers' CompensationContract of employment entered into in Victoria-Parties
resident and domiciled in Victoria-Victorian law governing contract-Work performed in New South Wales-Accident in New South Wales-Death in Vic. MELBOURNE,
A contract of employment was entered into in Victoria between a worker and a building contractor, who were both domiciled and at all material times resident in Victoria, whereby the worker was engaged to work at a building in course of erection at a neighbouring border town in New South Wales. It was found to be the intention of the parties that Victorian law should govern the contract of service.
Held that, notwithstanding these facts, the dependants of the worker were not entitled to recover compensation under the Workers' Compensation Act 1928 (Vict.) in respect of his death in Victoria as a result of personal injuries by accident sustained by him while working at the building in New South
Tomalin v. S. Pearson &Son Ltd., (1909) 2 K.B. 61, applied. Decision of the Supreme Court of Victoria (Full Court) affirmed.
APPEAL from the Supreme Court of Victoria.
The respondent, James Laurence Barnard, was a building con- tractor who entered into a contract in Victoria to erect a mill at
Tocumwal in New South Wales. He employed Andrew Abner Mynott to do work as a carpenter in the erection of the mill. The contract of employment was made in Victoria. Both the employer and the worker were domiciled and resident in Victoria. It was found as a fact that they intended their contract to be governed by the law of Victoria. The worker lived at Cobram in Victoria at all material times, and he crossed the River Murray daily to work under the contract in New South Wales. He was injured by an accident which arose out of and in the course of his employment at his work in New South Wales. He died, as a result of the accident, in Victoria, and his dependants claimed compensation under the Victorian Workers' Compensation Act 1928. The learned judge of the County Court decided that, as the accident happened in New South Wales, the claimants could not recover. The Supreme Court of Victoria upheld this decision, and the claimants appealed from that decision to the High Court.
Ashkanasy (with him Rapke), for the appellants. The issue is Can the dependants of an industrial worker working for a Victorian employer under a Victorian contract of employment hold such employer liable under the Victorian Workers' Compensation Act 1928 in respect of an accident happening in New South Wales to the worker whilst performing his duties under the contract of employment, which accident causes his death in Victoria ? The question is one of statutory construction. Sec. 5 (i) of the Workers' Compensation Act 1928 uses general words unlimited in scope and these words…
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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AGLC
Mynott v Barnard [1939] HCA 13
Case
[1939] HCA 13
Decision Date
CaseChat Overview and Summary
The case of *Mynott v Barnard* involved an appeal to the High Court of Australia from the Supreme Court of Victoria. The appeal concerned a claim for workers' compensation by the dependants of a deceased worker, Andrew Abner Mynott, against his employer, James Laurence Barnard. The dispute arose from an accident that occurred in New South Wales while Mynott was working under a contract of employment entered into in Victoria. Both Mynott and Barnard were domiciled and resident in Victoria, and it was agreed that Victorian law was intended to govern their contract. Mynott commuted daily from his Victorian residence to his worksite in New South Wales, where he sustained the fatal injuries.
The central legal issue before the High Court was the territorial scope of the Victorian *Workers' Compensation Act 1928*. Specifically, the court had to determine whether the Act applied to an accident that occurred outside Victoria, even though the contract of employment was made in Victoria between parties domiciled and resident in Victoria, and the worker ultimately died in Victoria. The appellants argued for a broad interpretation of the Act's general wording, suggesting various potential limitations such as the proper law of the contract, the place of death, or the residence of the parties. The respondent contended for a more restrictive interpretation, arguing that the Act should not extend beyond the territorial limits of Victoria.
The High Court, affirming the decision of the Supreme Court of Victoria, held that the dependants were not entitled to compensation under the Victorian Act. The Court reasoned that while the *Workers' Compensation Act 1928* contained general wording, it could not be interpreted to apply universally across all jurisdictions. Drawing on established English case law, particularly *Tomalin v S. Pearson & Son Ltd.*, the Court concluded that the Act was intended to apply only to accidents occurring within Victoria. The Court rejected alternative suggested limitations, such as the place of contract formation, the domicile or residence of the parties, or the governing law of the contract, finding them to be inappropriate or lacking statutory basis for this type of remedial legislation. The Court emphasised that the subject matter and character of the Act, being concerned with compensation for injuries arising from accidents, pointed towards a territorial limitation to the place where the accidents occurred.
Consequently, the appeal was dismissed, and the decision of the Supreme Court of Victoria was affirmed. The dependants of the deceased worker were therefore not entitled to recover compensation under the Victorian *Workers' Compensation Act 1928* in respect of an accident that occurred in New South Wales.