Stanley v Gallagher and Ors sued on their own behalf and on behalf of all members of the Gold Coast Turf Club & Anor

[2002] NSWCA 174

CITATION:	Stanley v Gallagher and Ors sued on their own behalf and on behalf of all members of the Gold Coast Turf Club & Anor [2002] NSWCA 174
FILE NUMBER(S):	CA 40537/01
HEARING DATE(S):	29 May 2002
JUDGMENT DATE:	14 June 2002
PARTIES :	Peter Robert STANLEY (Appellant) Peter Michael GALLAGHER, Patrick Thomas MURRAY and Geoffrey Nelson TAYLOR sued on their own behalf and on behalf of all members of the GOLD COAST TURF CLUB (First Respondent) WORKCOVER AUTHORITY OF NEW SOUTH WALES (Second Respondent)
JUDGMENT OF:	Stein JA at 1; Heydon JA at 2; Pearlman AJA at 3

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 35979/00
LOWER COURT JUDICIAL OFFICER :	Moran CCJ

COUNSEL:	J D Hislop QC with S G Campbell (Appellant) P E Blacket SC with M J Fordham (First Respondent) A J Candy (Second Respondent)
SOLICITORS:	Mitchell Playford & Radburn (Appellant) P W Turk & Associates (First Respondent) WorkCover Authority of New South Wales (Second Respondent)
CATCHWORDS:	WORKERS' COMPENSATION - whether Compensation Court had jurisdiction to entertain claim - worker a jockey - injury in New South Wales on journey to employment in Queensland - extra-territorial operation of Workers Compensation legislation - need for relevant factual connectors with New South Wales - nature of relevant connectors - whether connectors are to be between employer and State - whether connectors confined to examples set out in WorkCover Authority (NSW) v Billpat Holdings Pty Ltd - relevant connectors found - D
LEGISLATION CITED:	Compensation Court Act 1984 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 Commissioner for Railways for the State of Queensland v Peters (1991) 25 NSWLR 407 Mynott and Ors v Barnard (1939) 62 CLR 68 Tomalin v S. Pearson & Son (1909) 2 KB 61 Workcover Authority (NSW) v Billpat Holdings Pty Ltd and Ors (1995) 11 NSWCCR 565
DECISION:	1. Appeal upheld.; 2. Proceedings remitted to the Compensation Court for the determination of an award in favour of the Appellant.; 3. The Respondents to pay the Appellant's costs, but to have a certificate under the Suitor's Fund Act if otherwise entitled.

CA 40537/01
CC 35979/00

STEIN JA
HEYDON JA
PEARLMAN AJA

Friday, 14 June 2002

Peter Robert STANLEY v Peter Michael GALLAGHER and Ors sued on

their own behalf and on behalf of all members of the

GOLD COAST TURF CLUB & ANOR

The Appellant was a jockey who was injured in New South Wales whilst travelling from his home in Casino, New South Wales to the Gold Coast Turf Club in Southport, Queensland where a race in which he was engaged to ride was to be conducted.

Moran CCJ held at first instance that the Compensation Court lacked jurisdiction to entertain the Appellant’s claim as there were insufficient connectors between the First Respondents and the State of New South Wales.

The Appellant appealed from that finding. The issue in the appeal was whether the circumstances of the case that involved Queensland had the effect of excluding the operation of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 in respect of the Appellant’s claim, so that the Compensation Court lacked jurisdiction.

Held:

On the appeal, per Pearlman AJA, Stein JA and Heydon JA agreeing:

Despite the general words of s 10 of the Workers Compensation Act 1987 and the intention of the legislature, as expressed in s 6, that the Act was to have some extra-territorial operation, there must be some relevant factual connection with New South Wales to render that extra-territorial operation valid: Mynott v Barnard (1939) 62 CLR 68; Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407.

The trial judge erred by misdirecting himself as to the questions of fact which he had to answer. The relevant factual connections were not confined to connectors between the employer and the State, and were not confined to the list of connectors set out in WorkCover Authority (NSW) v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565. The relevant connectors were broadly the facts or events having a relevant connection with the State: Commissioner for Railways v Peters.

In this case, there were sufficient connectors with New South Wales. The injury occurred in the State, the Appellant was resident in the State, the injury occurred whilst the Appellant was on a journey from his place of abode in the State to his employment, and his engagement to ride came into existence in the State.

Orders:

1 Appeal upheld.

2 Proceedings remitted to the Compensation Court for the determination of an award in favour of the Appellant.

3 The Respondents to pay the Appellant’s costs, but to have a certificate under the Suitor’s Fund Act if otherwise entitled.

CA 40537/01
CC 35979/00

STEIN JA
HEYDON JA
PEARLMAN AJA

Friday, 14 June 2002

Peter Robert STANLEY v Peter Michael GALLAGHER and Ors sued on

their own behalf and on behalf of all members of the

GOLD COAST TURF CLUB & ANOR

Judgment

1 STEIN JA: I agree with Pearlman AJA

2 HEYDON JA: I agree with Pearlman AJA.

3 PEARLMAN AJA:

Introduction
This is an appeal from a decision of the Compensation Court (Moran CCJ) in which it was held that the Compensation Court had no jurisdiction to entertain the Appellant’s claim for compensation.

4 The Appellant is a jockey. At the relevant time, he was residing with his wife, a racehorse trainer, in Casino in northern New South Wales. His wife had entered a horse, called Crystal Run, in a race to be conducted by the Gold Coast Turf Club near Southport in Queensland. The Appellant was engaged, in circumstances to which I later refer, to ride Crystal Run in the race. On 7 August 1999, the day of the race meeting, the Appellant was injured in New South Wales whilst travelling with his wife and the horse from his home in Casino to the racecourse.

5 The First Respondents are persons sued in their own behalf and on behalf of all the members of the Gold Coast Turf Club. As the First Respondents were not insured for liability for workers compensation, the WorkCover Authority of New South Wales was joined as the Second Respondent.

6 Clause 9 of sch 1 of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”) provides for the deemed employment of jockeys, relevantly in the following terms:

(1) A person who:
(a) is engaged to ride a horse for fee or reward at a meeting for horse racing conducted or held by a racing club or association …
is, for the purposes of this Act, taken to be a worker employed by the racing club or association.

7 Section 2A of the Workers Compensation Act 1987 (“the 1987 Act”) provides that it is to be construed with, and as if it formed part of, the 1998 Act. Pursuant to this provision, s 10 of the 1987 Act potentially applies. It relevantly provides as follows:

10 Journey Claims
(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

8 Section 10(3)(a) includes, amongst the journeys to which s 10 applies, “the daily or other periodic journeys between the worker’s place of abode and place of employment”. Section 10(6)(a) relevantly defines “place of abode” as “the place where the worker has spent the night preceding a journey and from which the worker is journeying”.

9 An appeal under s 32 of the Compensation Court Act 1984 is confined to a point of law or a question as to the admission or rejection of evidence. The only issue that arises in this appeal is whether the learned trial judge erred in law in misdirecting himself as to the application of the 1987 Act and the 1998 Act.

The findings of the trial judge

10 His Honour made the following relevant findings of fact:

(1) The Appellant rode at the Gold Coast Turf Club race meetings several times a year – one in ten of his rides was at the Gold Coast;

(2) Many jockeys from New South Wales ride at meetings in Queensland, and many jockeys from Queensland ride in New South Wales;

(3) There is a monthly calendar of Queensland race meetings. In effect, it constitutes an offer to licensed trainers to enter horses for races;

(4) So far as concerns the Gold Coast Turf Club, the first step in the procedure for entry into a race is for the trainer, on the Monday morning prior to the race meeting, to nominate a horse for a race;

(5) The next step is that, on the Thursday before the race meeting, the trainer “accepts” the horse for the particular race, that is, the trainer notifies the racing club that the horse is going to start;

(6) The racing club then conducts a barrier draw. It provides the details of the draw on what was described as a “poll” fax, that is, on a list which each trainer can access through that trainer’s fax machine;

(7) The next step is for the trainer to engage a jockey to ride the horse, and the trainer telephones or faxes the racing club to nominate the jockey who is so engaged;

(8) If the jockey does not have a licence to ride in Queensland, he or she is required to obtain such a licence by applying for it, which can be done at the racetrack on the morning of the race;

(9) The trainer is required to pay a fee to the racing club. It comprises a nomination fee, an acceptance fee, a riding fee, insurance fees and barrier fees. The amount is paid on the day of the race, at least two hours before the race;

(10) The jockey is entitled to a riding fee once the trainer nominates him (or, presumably, her). The riding fee is paid to the jockey by the racing club, and it is paid whether or not the jockey actually rides on the day of the race meeting.

11 These steps appear to have been followed in the circumstances of this case. Crystal Run was nominated and accepted by the trainer, that is, by the Appellant’s wife. It may be assumed that the horse was listed in the barrier draw, although there does not appear to have been direct evidence of that matter, and it may also be assumed that the horse’s barrier draw was communicated to the trainer through her access to the list provided by the Gold Coast Turf Club. The trainer requested the Appellant to ride the horse in the race, and, again, it may be assumed that the trainer communicated his nomination as jockey to the Gold Coast Turf Club. The Appellant was paid a riding fee of $80, even though he did not in fact arrive at the racecourse, and he understood that the trainer had been billed by the Gold Coast Turf Club for the same amount.

The principles to be applied

12 The issue in this case is the scope of the operation of the 1987 Act and the 1998 Act (collectively, “the Compensation Acts”) given the facts, namely, that the employer was a Queensland club, and the place of employment was in Queensland, but the worker was resident in New South Wales and was injured in New South Wales on a journey to work. In other words, do the circumstances that involve Queensland have the effect of excluding the operation of the Compensation Acts in respect of the Appellant’s claim, so that the Compensation Court had no jurisdiction?

13 Issues such as this have had a long history in the courts. As Kirby P (as he then was) pointed out in WorkCover Authority (NSW) v Billpat Holdings Pty Ltd and Ors (1995) 11 NSWCCR 565 at 584, it has been accepted that it is appropriate to imply into a local Act some territorial limitation, but there has been a state of uncertainty as to the connections which are required where the character of the employment or the place of injury are properly assigned to a jurisdiction other than that in which the claim for compensation is brought.

14 In Mynott and Ors v Barnard (1939) 62 CLR 68, a worker died as a result of injuries incurred in an accident at his work across the border in New South Wales. The employer and the worker were both resident in Victoria. The High Court held that his dependants were not entitled to recover compensation under the Victorian compensation legislation. However, the judges of the High Court were divided as to the test to be applied to determine, on its proper construction, whether the Victorian Act operated in the particular circumstances. Latham CJ held (at 81 - 86) that the Victorian Act was limited to injuries arising from accidents in Victoria, a conclusion that was shared by Starke J (at 89) and McTiernan J (at 94). Rich J (at 87) based his rejection of the claim on the fact that the employment of the worker was carried out in New South Wales and the accident did not arise out of Victorian employment, and Dixon J (91 - 93) supported this conclusion.

15 The notion that the issue calls for a narrow view of the required connections with the local Act was rejected by Kirby P in WorkCover v Billpat (at 586) and in the earlier case of Commissioner for Railways for the State of Queensland v Peters & Anor (1991) 24 NSWLR 407. The latter case dealt with an appeal to this Court from an award of compensation by the Compensation Court in respect of a worker who was a New South Wales resident, and who was injured whilst working in New South Wales cutting timber for railway sleepers for the Queensland Commissioner of Railways. The decision turned on the particular provisions of the Workers’ Compensation Act 1926, which was in force at the time of the worker’s injury. Referring to the need to show territorial connection with New South Wales to establish the validity of the relevant legislation, Kirby P said at 437:

It is enough that there was a relevant connection with New South Wales. Many are the workers’ compensation cases where employers are out of the jurisdiction, injuries arise out of the jurisdiction and incapacity arises out of the jurisdiction. So long as the words of the Workers’ Compensation Act , in their generality, apply to the worker and operate upon facts or events having a sufficient connection with this State, the validity of the legislation in its extra-territorial operation is unchallengeable.

16 The Workers’ Compensation Act 1926 was different from the 1987 Act. In particular, it did not contain a provision similar to s 6(1) of the 1987 Act, which is in the following terms:

6(1) This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities.

17 In relation to that matter, Kirby P said, at 435:

Had there appeared in the 1926 Act a provision equivalent to that now enacted in s 6 of the 1987 Act, I should have had no hesitation to hold that the “arrangement” entered between the worker and the Commissioner validly imposed on the Commissioner (and hence on Queensland) an obligation to pay compensation to the worker. Such a conclusion should offend nobody. If the Commissioner chose to recruit what I might call “quasi workers” across the border in New South Wales, it is neither inequitable nor surprising that he should be liable to such quasi workers under New South Wales compensation law. There were many connections with New South Wales” (his Honour went on to describe the connections arising in that case).

18 Priestley JA (at 441) and Waddell AJA (at 449) agreed with the reasoning and conclusions of Kirby P on these aspects of the case (although they disagreed on another aspect which is not presently material).

19 A similar question arose for determination in WorkCover v Billpat. The worker was an overseer wool classer, engaged in wool classing and organising teams of shearers. He had been working in a shearing shed in Queensland, employed by Billpat. On a weekend during the time of employment in Queensland, the worker decided to return to his property at Glen Innes to help his father with crutching sheep. He was injured in New South Wales when his vehicle left the road as he was proceeding to Glen Innes. One of the issues was whether the 1987 Act applied in the particular circumstances. Kirby P delivered the principal judgment, and Priestley and Clarke JJA agreed with his reasons and conclusions on this issue (although disagreeing on another issue not presently relevant).

20 At 584 – 586, Kirby P reviewed Mynott v Barnard and subsequent authorities, and concluded, as I have earlier mentioned, that a broad rather than a narrow construction was to be preferred. His Honour then proceeded to consider the facts and concluded at 587 as follows:

On the factual level, whatever may be the precise requirement in addition to the happening of the injury within the jurisdiction, there were very many connectors with this State which make the application of the New South Wales Act to the injury within the State neither surprising nor offensive to the Mynott principle. The connectors include:
(1) Billpat’s registered office was within New South Wales.
(2) It conducted business in New South Wales, even if its actual shearing operations were exclusively within Queensland.
(3) Its cheque account was on a bank at Dubbo, New South Wales.
(4) Its meetings were held at Dubbo.
(5) All papers, cheque statements etc. were returned to its Dubbo office.
(6) Accounts were sent from Dubbo to the graziers for whom the shearers worked.
(8) Group certificates, including for the worker, were prepared in Dubbo.
(9) The books of account of Billpat were sent to and kept in Dubbo.
(10) Billpat’s letters gave as their address the office in Dubbo.
(11) Billpat employed New South Wales residents, such as the worker, who lived in this State.
(12) Upon one view, the worker was actually engaged for the subject work by telephone to New South Wales.

21 The trial judge seized upon this list of connectors, and I will return later to consider his approach. At this point, however, two matters need to be mentioned. The first is that, despite the width of the general words of s 10 of the 1987 Act and the intention of the legislature, as expressed in s 6 of the same Act, that the 1987 Act is intended to have some operation beyond the territorial limitations of New South Wales, there still remains a need to consider the factual connectors which would render valid the extra-territorial operation of the Compensation Acts. In Mynott v Barnard, Latham CJ at 73 quoted with approval the remark of Fletcher Moulton LJ in Tomalin v S. Pearson & Son Ltd (1909) 2 KB 61 at 65 that the corresponding section of the English Act “… clearly cannot apply universally all over the world”. Latham CJ went on to say, at 73, that “[s]ome territorial limitation must be introduced in the construction of the section”. That conclusion was echoed by Kirby P in WorkCover v Billpat at 584. There must be some relevant connection with New South Wales (cf Commissioner for Railways v Peters per Kirby P at 437).

22 The second matter is whether the connectors must be with the employer and the State or with the employee and the State. Senior counsel for the First Respondents at the trial had made the following submission, and senior counsel for the First Respondents in this Court adopted it as his primary submission:

Now our submission is primarily that what your Honour must find are sufficient connectors not between the applicant and the state of New South Wales, but between the respondent and the state of New South Wales because your Honour has to be satisfied that there be jurisdiction there are sufficient connectors between the racing club or association as referred to in clause 91(A) of schedule I, for the applicant’s argument in this case to succeed.

23 This submission is somewhat obscure. There does not appear to be any question about the operation of cl 9 of sch 1 of the 1998 Act deeming the Appellant to be the employee of the Gold Coast Turf Club. So much was conceded in submissions in this Court. I take it, then, that this submission is directed to the connectors necessary to bring the facts and circumstances within the operation of the Compensation Acts. The submission was made again in the written submission filed on behalf of the Gold Coast Turf Club in this appeal, namely, that the connectors are to be found to be with the employer and the State, not with the employee and the State. The submission cites WorkCover v Billpat as authority for the proposition.

24 In my opinion, no such proposition can be derived from WorkCover v Billpat. It is true that the connectors that were specified by Kirby P (in the list I have quoted at par 20) all connected the employer with New South Wales. But it is the whole range of connectors that need to be considered to establish a relevant connection with the State, not simply the circumstances of the employer or the employee. As Kirby P said in the passage I have quoted at par 15, it is the “facts or events having a sufficient connection with this State” which are relevant.

The judgment in the court below

25 I turn to the judgment of the trial judge. In pars 37 – 39, his Honour said the following:

37 There is no evidence before me that the Gold Coast Turf Club or the members of the committee named as respondents on behalf of the Turf Club has a registered office or conducted business in NSW or carried out other activities such as the “connectors” referred to numbered three to ten in Billpatt’s case at page 587.

38 I find that there are not sufficient connectors between the first respondents and the State of New South Wales to give this court jurisdiction.

39 I make an award in favour of the first respondent. I make an order in favour of the second respondent.

26 I am of the opinion that the trial judge erred in law by misdirecting himself as to the questions of fact which he had to answer (cf Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156). First, the test for sufficiency of connectors to New South Wales is not confined to items numbered 3 to 10 in the list set out in the judgment of Kirby P in WorkCover v Billpat which I have quoted in par 20 above. What was required was “a relevant connection with New South Wales” (per Kirby P in Commissioner for Railways v Peters at 437). It may have been enough that the injury was suffered in New South Wales. Mynott v Barnard supports such a conclusion. Senior counsel for the Appellant placed some emphasis on the singular word “connection” in the sentence I have just quoted from Commissioner for Railways v Peters in submitting that the single fact that the injury occurred in New South Wales was sufficient connection.

27 But there were other connectors with New South Wales. The Appellant was resident in New South Wales, the injury occurred whilst he was on a journey from his place of abode in New South Wales, his actual engagement to ride came into existence in New South Wales when he was asked to do so by the trainer and he accepted that offer, and he was paid a fee to ride by the Gold Coast Turf Club out of money paid to it for that purpose by the trainer. In addition to all these matters, there was an amount of trans-border employment regularly carried out on racetracks - jockeys from New South Wales regularly rode in Queensland and vice versa; and the Appellant himself had regularly ridden at race meetings conducted by the Gold Coast Turf Club.

28 I should note that an alternative basis for the Appellant’s claim had been put to the learned trial judge. It was submitted that the trainer, in engaging the Appellant to ride, was acting as agent for the Gold Coast Turf Club. His Honour rejected that basis, correctly in my opinion, having regard to the facts found in relation to the procedure for the nomination and acceptance of the horse and the engagement of the jockey.

29 The second error was his Honour’s approach in confining his decision to the existence of connectors between the Gold Coast Turf Club and New South Wales. As I have explained in pars 22 - 24, that was not the relevant test.

30 For these reasons, the orders I would propose are as follows:

1. Appeal upheld.

2. Proceedings remitted to the Compensation Court for the determination of an award in favour of the Appellant.

3. The Respondents to pay the Appellant’s costs, but to have a certificate under the Suitor’s Fund Act if otherwise entitled.

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