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Thomas v CGU

Thomas v CGU

Case [2020] TASSC 38 24 July 2020

Appeal

Entitlement to Compensation

Jurisdiction

Judicial Review

Workers Compensation

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[2020] TASSC 38

COURT: SUPREME COURT OF TASMANIA

CITATION: Thomas v CGU [2020] TASSC 38

PARTIES:  THOMAS, Shawn
  v
  CGU WORKERS COMPENSATION

FILE NO:  2373/2019
DELIVERED ON:  24 July 2020
DELIVERED AT:  Hobart
HEARING DATE:  21 February 2020
JUDGMENT OF:  Geason J
CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Appeals, judicial review – Question of law- Entitlement to compensation – Determination of State of connection for claim – Application of tests in s 31A of the Workers Rehabilitation and Compensation Act 1988 – Worker's usual base – No error demonstrated – Appeal dismissed.

Workers Rehabilitation and Compensation Act1988 (Tas), s 31A.
Avon Products Pty Ltd v Falls [2010] ACTCA 21, 5 ACTLR 34, applied.
Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332, referred to.
Aust Dig Workers Compensation [341]

REPRESENTATION:

Counsel:
             Appellant:  B Hilliard
             Respondent:  G Wood
Solicitors:
             Appellant:  Hall Payne Lawyers
             Respondent:  Wallace Wilkinson & Webster

Judgment Number: [2020] TASSC 38
Number of paragraphs: 52

Serial No 38/2020
File No 2373/2019

SHAWN THOMAS v GCU WORKERS COMPENSATION

REASONS FOR JUDGMENT GEASON J

24 July 2020

Shawn Thomas appeals a decision of Chief Commissioner Webster (as he then was) delivered in the Workers Rehabilitation Compensation Tribunal (the Tribunal) in August 2019. The appeal challenges the Tribunal's conclusion as to the "State of connection" for the purposes of s 31A of the Workers Rehabilitation and Compensation Act 1988 (the Act).
Identification of the State of connection is relevant to whether an insurer is required to pay compensation under the Act. Section 31A (1) provides that compensation is payable only if Tasmania is the State of connection. Section 3 of the Act defines the State of connection as "the State with which the employment of a worker is connected as determined under Division 2 of Part III".
Section 31A (3) of the Act prescribes the test for determining the State of connection:
"(3) A worker's employment is connected with –
(a) the State where the worker usually works in the employment; or
(b) if no State, or no single State, is identified by paragraph (a), the State where the worker is usually based for the purposes of the employment; or
(c) if no State, or no single State, is identified by paragraph (a) or (b), the State where the employer's principal place of business in Australia is located." [My emphasis.]
If a State of connection cannot be determined under sub-section (3) subsection (5) applies[1]. The circumstances of this case, however, render that section inapplicable because the injury occurred in NSW.
[1] (5)   If no State is identified for a worker by subsection (3) or (4), the worker's employment is connected with this State if
(a)   the worker is in this State when injured; and
(b)   the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia.
Section 31A(3)(a)…

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.

Continue reading Thomas v CGU

Details

AGLC: Thomas v CGU [2020] TASSC 38
Case: [2020] TASSC 38
Decision Date: 24 July 2020

CaseChat Overview and Summary

The case of Thomas v CGU involved the appellant, who sought workers' compensation from the respondent, CGU, following a work-related injury. The dispute centred on the determination of the appropriate jurisdiction for the compensation claim under the Workers Rehabilitation and Compensation Act 1988. The matter was heard in the Supreme Court of Victoria, which was called upon to interpret the statutory provisions concerning the State of connection for the claim.

The primary legal issue revolved around the application of section 31A of the Act, which sets out the criteria for determining the State of connection where a worker's employment involves multiple jurisdictions. Specifically, the court had to decide whether the appellant's usual base, as per the statutory tests, was correctly identified by the tribunal. The court was required to assess whether the tribunal's determination that the State of connection was Queensland, rather than Victoria, was legally sound and supported by the evidence.

In its decision, the Supreme Court of Victoria found no error in the tribunal's interpretation of section 31A and its application to the facts of the case. The court held that the tribunal had correctly concluded that the appellant's usual base was in Queensland, as the evidence demonstrated that the appellant had been working and residing there for an extended period. The Supreme Court affirmed that the tribunal's determination was consistent with the statutory criteria and was not made in error. As a result, the appeal was dismissed, and the decision of the tribunal was upheld. The court's decision confirmed that the Queensland Workers' Compensation scheme was the appropriate jurisdiction for the appellant's claim.

Orders