Thomas v CGU - [2020] TASSC 38

[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) refers to "the state where the worker usually works". Subsection (6) assists in determining where that is. It refers to the "usual place of work":
"(6) In deciding whether a worker usually works in a State –
(a) regard must be had to the following:
(i)the worker's work history with the employer over the preceding 12 months;
(ii)the worker's proposed future working arrangements;
(iii)the intentions of the worker and employer;
(iv)any period during which the worker worked in a State or was in a State for the purposes of employment, whether or not the worker is regarded as working or employed in that State under its workers compensation law; but
(b) regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months."
The appellant's case is that the evidence does not sustain a finding that the worker usually works in any particular State. Nor that he is usually based in a particular State. Therefore, the employer's place of business is determinative of the State of connection.
The insurer's case is that the evidence sustains a finding that the worker is usually based in Victoria and it is the State of connection pursuant to s 31(3)(b) of the Act. It agrees that if Victoria is not the State of connection, Tasmania is, because it is the employer's principle place of business: s 31A(3)(c).
The employer did not participate in the appeal. Before the Tribunal it supported the appellant's submission as to the State of connection.
The Tribunal submitted to the jurisdiction of the Court.
An appeal under the Act is limited to errors of law: s 63(1). The Court is not undertaking a rehearing.
For the reasons which follow, the appeal is dismissed.

Facts and the reasons for decision

The employer is a cartage contractor carrying on business at Spreyton in Tasmania. It employs the appellant as a truck driver.
On 21 March 2019 at Leeton in New South Wales, he injured his right knee in the course of his employment, whilst unloading metal safety gates from a trailer.
The further facts appear sufficiently in the Commissioner's reasons for decision, which though detailed and lengthy need to be reproduced in full to appreciate the factual complexity which confronted the Tribunal:
"9        The worker … was a casual truck driver living in Victoria who mostly worked in Victoria taking freight to and from the Tasmanian ships located at Port Melbourne and distributing that freight. ... much of the freight comes and goes to New South Wales but he primarily works out of Victoria and is based in Victoria. … the employer has a depot at Tottenham in Victoria where in the course of his employment the worker usually collects the truck he is required to drive. That truck is owned by the employer and is either returned to the Tottenham depot at night or alternatively retained by the worker at his residence in Victoria...
10       The worker … says he lives in Yarck in central Victoria which is about 2 and ½ hours north-east of Melbourne. He lives with his two sisters and mother. The worker has shared care of his three children. He has been a truck driver for about 25 years.
11       In early November 2018 he had a discussion with Peter Richards who is a truck driver employed by the employer. Mr Richards advised the worker the employer was looking to employ a driver 'to help on the mainland'. Mr Richards advised the worker to telephone Brian who is the Operations Manager of the employer. The worker subsequently spoke to Brian and was advised he would be put on a trial.
12       The worker was told he would be driving a prime mover ('the truck') which he would initially pick up from a yard in Tottenham which is a suburb of Melbourne. That truck was registered to the employer in Tasmania. He would then receive a text message or a phone call from Brian who would provide him with instructions as to where he would have to pick up a load from. He would also have details of the job provided in an envelope which was left inside the toolbox of the trailer he would pick up with the truck. He would drive the truck and pick up the load. On occasions he would take the truck with the trailer back to his house where he would get some sleep and then take the trailer to the destination whether that be New South Wales, Queensland or South Australia in order to deliver the load. At other times he would drive the truck back to Tottenham and drive his own car home. He would pick up loads from suburbs of Melbourne including Tottenham, Altona and Toll Shipping (Victoria) which is based at Port Melbourne. He would also pick up loads in New South Wales at Wagga Wagga, Blackwood, Toll Tasmania (in Sydney) and Blacktown. He would usually pick up his loads that came from the Spirit of Tasmania or Searoad Logistics which were transported from Tasmania into Port Melbourne. He would drive to the gatehouse at the port and advise he was there to pick up a trailer and he would be directed to where the trailer was and he would match up the trailer number with the details he had been provided. He says once you pick up your trailer you come back through the other gate at the gatehouse and sign out and then drive to your destination. For example, he would pick up a trailer at Port Melbourne which had come off the Spirit of Tasmania and then drive the cargo to Queensland and drop off that cargo. On the drive back he would stop at Toll Tasmania in Sydney and pick up a variety of goods that were destined for Tasmania and then drive those goods back to Port Melbourne. The trailer of goods would be disconnected from his truck and transported back to Tasmania. On other occasions he would do a delivery to a suburb in New South Wales and then drop the trailer off at Toll Tasmania in Sydney for a few hours while they were loading it up and during that time he might have a sleep in the truck for a few hours. Then once his trailer was loaded he would drive back to Victoria to drop off the goods. He says depending upon the timing of the transport, which I infer meant sailings between Tasmania and Victoria, he would on a Thursday, Friday or Saturday put the paperwork for the week in the toolbox of a trailer which was being transported back to Tasmania. That paperwork would detail what was loaded on the trailers which had been shipped to Tasmania.
13       The worker says his work trial went for about a week and he delivered loads to areas in Victoria and New South Wales and in the second week of work he provided the employer with all his tax details and banking information. He says he was being paid weekly but he did not know whether he was officially employed because he did not receive any paperwork. He says on 18 December 2018 he received an email from the employer which enclosed the employer's handbook and which provided him with details of the terms of his employment. The email and the handbook were attached to W2. Although this evidence and the evidence in paragraph 11 suggests the worker may have commenced the trial in November or early December 2018 the worker confirmed in his evidence his first day of work for the employer was 27 December 2018. This is consistent with when the diary (exhibit W1) and the run sheets (exhibit W3), which are referred to below, commence and also with the contents of exhibit I2.
14       The email indicates the casual rate of pay is $26.48 per hour for local deliveries which are deliveries within a 100km radius of the depot. For long haul trips the worker was paid $0.46 per kilometre. The location of the depot is not identified in the email. The email provides examples of what is contained in the employee handbook by way of the employer's policies and it advises what paper work must be emailed to the office whereas the original paper work is to be placed in the 'toolbox of next available trailer for Tassie'. The email also advises pay day is Friday of each week, for the previous week's work and 'pays close on Sunday nights'. He said he was paid by direct deposit into his bank account.
15       The worker says in about late January or early February 2019 he travelled to Tasmania on the Spirit of Tasmania with his truck because it had to be serviced. He met Brian in Devonport and they swapped trucks so the worker's truck could be serviced. He and Brian then performed some deliveries in Launceston and Hobart in another truck. They then went back to the depot at Spreyton where the worker met Mr Whitehouse in person for the first time although he had previously spoken to him on the telephone. The worker says the depot at Spreyton included a service centre and an office. He stayed at Mr Whitehouse's home for the weekend whilst his truck was being serviced. On the Saturday he assisted with maintenance on his truck and by the end of that day Mr Richards had arrived from Victoria with his truck which also required servicing. On the Sunday both he and Mr Richards helped perform minor maintenance on Mr Richards' truck. On the Sunday night they took their trucks back on the Spirit of Tasmania to Victoria. The worker says he was paid for the work he performed in Tasmania.
16       As to the incident which gave rise to the accident the worker indicates he was to pick up animal food from CopRice Pty Ltd which is situated at Railway Avenue, Leeton in New South Wales. He arrived at about 8:00pm and went to sleep in his truck. At about 4:30am on 21 March 2019, he did all the daily checks on the truck and then drove into the loading bay at Cop Rice where the accident occurred.
17       Through the worker was tendered a document entitled 'National Driver Work Diary Daily Sheet' (Exhibit W1)('the diary'). It is a diary which records, on each page, the driver's name, the date and day of the week, the driver licence number of the driver and the number plate of the vehicle which the driver drives on that day. The diary records the hours during the 24 hour period which the driver was working and the hours during which the driver was resting. Also recorded on each sheet, which is individually numbered and which represents one day, is the odometer reading of the vehicle at the place at which the vehicle is driven from or to or the place at which the driver has a rest either at a rest area, truck stop or a suburb or town. Each sheet also records the 'Time Zone: State/Territory (Driver Base)'.
18       The worker explained the diary was completed for trips he took interstate or where he drove a distance of 100kms or more from where he picked up his load. He explained all truck drivers in Australia needed to have a diary and they needed to complete it daily. It is inspected at weighbridges or if he is pulled over by police it might be inspected by police. There are three copies of each page in the diary. On the top sheet, which is white, the worker records the required details and there are two carbon copies which are yellow and pink. The white copy is kept in the book, the yellow copy is sent to the employer and the pink copy stays in the book but it might be removed if the book is checked at a weighbridge or by police.
19       Page 171316 of the diary represents work performed by the worker on 23 January 2019. That page has a red stamp on it which indicates the diary was checked on that day by an officer attached to the relevant New South Wales government department.
20       I have examined the diary. Entries commence on 27 December 2018 and end on 20 March 2019 which is the day before the accident. The entry for 20 March 2019 confirms the worker reached Leeton at approximately 8:00pm that day. The period of time between 27 December 2018 and 20 March 2019 is 12 weeks. During that 12 week period the diary shows the worker was driving for his employer on 44 of those days. The diary shows the worker drove to a number of destinations in Victoria including, but not limited to, Glenrowan, Sale, Port Melbourne, Euroa, Tottenham and Yarck. He also drove to a number of destinations in New South Wales including, but not limited to, Gundagai, Marulan, Villawood, Blacktown, Wagga Wagga, Holbrook, Goulburn, Forbes, Dubbo, Jerilderie, Kempsey and Narrabri. There is one trip to Queensland (Goondawindi) on 24 January 2019 and one trip to South Australia (Mount Gambier) on 26 February 2019. He confirmed there is a Toll Shipping depot at Villawood in New South Wales.
21       On 28 December 2018 the diary (page 171301) shows the worker rested at Villawood from 2-30am, he said his truck was then loaded and he left Villawood at 4:30pm that afternoon before he returned to Tottenham arriving at approximately 10:45am on 29 December 2018. He said in his evidence he can swap over trailers at the Tottenham yard or at Port Melbourne or he can take the truck home. There are 5 parking spots at the Tottenham yard. He indicated most of the trailers were owned by the employer but sometimes the employer rents trailers if a specialised trailer is needed to carry a particular load.
22       Page 171303 of the diary for 8 January 2019 shows the worker was transporting a load from Port Melbourne via Officer, which is south-east of Melbourne, and Metung which is also south-east of Melbourne to Sale in Victoria. He said in evidence the load he picked up at Port Melbourne was potatoes which were unloaded at Sale. He then drove to Dandenong and picked up his next load for the next day. He had commenced work at Port Melbourne at 9:00am and he finished work at Dandenong at 9:00pm. The diary records he had rest breaks of about 4 hours in that period. The next day (page 171304) indicates the worker drove to Port Melbourne where the worker said in evidence he left a trailer which he says was bubble wrap which was bound for Tasmania. At Port Melbourne he picked up another trailer and his diary indicates on 9 January 2019 he drove to Wodonga, where he rested for half an hour between 12:30pm and 1:00pm, before driving for 4 and ½ hours to Exeter in New South Wales, where he rested for half an hour between 5:30pm and 6:00pm, before driving for another 1 and ½ hours to Blacktown in New South Wales where he rested from 7:30pm. He did not recommence work until 2:00pm on 10 January 2019.
23       Page 171306 of the diary for 11 January 2019 is an example whereby the worker was at Euroa at 8:30am that day and he said in evidence Mr Richards met him with an empty trailer. The worker then drove from Euroa to Wagga Wagga with the empty trailer where he picked up a load of pipes. Mr Richards took the worker's load to its destination. After leaving Wagga Wagga at approximately 2:15pm the worker ceased work at 6:30pm at his home at Yarck.
24       Page 171307 of the diary discloses on 13 January 2019 the worker left his home at 6:00pm and drove to Wagga Wagga arriving at 10:30pm that day. Then on 14 January 2019 he left Wagga Wagga at 8:30am arriving at Tottenham at 1:00pm where he rested for the next 7 hours before leaving Tottenham for Wodonga at 8:00pm that day.
25       The worker said he put his daily sheets from his diary in an envelope in the toolbox of the trailer which is returned to Tasmania via the ships leaving Port Melbourne, or he takes a photograph of them and emails them to his employer.
26       There are toilets and a lunch room at the depot at Villawood, however his employer is not based there. Toll is based there.
27       Next a bundle of run sheets were tendered through the worker (exhibit W3). This bundle is comprised of 22 sheets for work done on 19 different days. It also includes copies of sheets from the diary for 29, 30, 31 January and 1 February 2019. The first sheet is dated 27 December 2018 and the last sheet is dated 21 March 2019. The worker said the run sheets were his timesheets which he completed when he performed deliveries within 100kms from where the cargo was picked up and for which he was paid by the hour. This is not entirely the case because there are a number of run sheets which have been completed and which replicate the work done on long haul trips. For example one of the run sheets for 10 January 2019 is a duplication of the work done on 9 January 2019 (diary page 171304). The work on the run sheet for 13 January 2019 duplicates the work on that day which appears in the diary at page 171307. The same can be said for 14 January 2019 (diary page 171308). The run sheet for 20 March 2019 duplicates the work set out in the diary for that day (diary page 171343). There are others. There are other sheets which clearly disclose the worker performing local trips for which he was paid by the hour. Examples are the run sheets for 7 January 2019 and 17 January 2019.
28       In cross-examination the worker said a typical pay slip would record long haulage work for which he was paid per kilometre and local delivery work for which he was paid by the hour. He has lived in Victoria all his life and at Yarck for 2 years. He said the employer's principal business was transporting cargo from Tasmania to the mainland and vice versa. He said Brian Hughes made it clear that a significant requirement for the job was he would need to pick up a truck at Tottenham and drive it to Port Melbourne. He conceded if he lived in New South Wales or South Australia he could not do that. He estimated that about 5% of his work was the local delivery work. On Sunday nights or Monday mornings he might pick up a truck from Tottenham and then work a number of days in that week.
29       The diary discloses that during the 12 weeks from the 27 December 2018 he worked for 7 days during one week, 5 days during 3 weeks, 4 days during 2 weeks, 3 days during 4 weeks, 1 day during 1 week and no days during 1 week. The diary discloses for the week commencing Sunday, 10 March 2019 the worker worked no days and in the week commencing Sunday 17 March 2019 (that is the week of the injury the subject of his claim for compensation) he worked for 1 day.
30       During cross examination the worker estimated that approximately twice a week he would return the truck to Tottenham otherwise he would be either on the road or at Yarck. If the truck or trailer was not required until some time later he would drive the truck home. He would keep the truck at Yarck if it was convenient but would return it to Tottenham if he was due to commence a break from work. Most of the time loads were taken from Victoria to New South Wales and back to Victoria. He agreed an integral part of his work meant he operated from Tottenham; that is his work usually commenced and ended at Tottenham. If he was a resident of New South Wales he could not do that work. He indicated he had no plans to work in Tasmania. As he understood it the arrangement he had entered into to perform the work he was required to perform was permanent. The vehicle he drove 99% of the time was registered in Tasmania. He says Mr Richards performs the same duties he performs but he drives to different destinations. He understands all the other drivers are paid on the same basis as he is and for those in Tasmania the local work is within 100kms of the Spreyton depot. He says his bank account is with Bendigo Bank. Mr Hughes would ring or send a text which provided him with details of his jobs. He said when he was on a break from work the truck was always returned to the Tottenham depot before he commenced that break. He said he completed the diary sheets noting his base was in Victoria. He did not agree he completed those sheets in that manner because he was based there. He completed those sheets in that manner because that was where he lived and that is where he obtained his driver's licence. I do not accept the worker's evidence about his base. I say this because the diary does not ask where he lives and/or where he obtained his licence. It asks him to indicate in which State he is based. He has recorded his base as Victoria which is what he told Mr Bellette. Mr Bellette's evidence on this point was unchallenged.
31       In re-examination the worker said from time to time other drivers would come to the mainland including Brian Hughes and Glen Whitehouse and drive in Victoria when he and Mr Richards were busy. He said his vehicle was serviced every 3 months or 20,000kms and it would have to be brought to Tasmania for that purpose. He also said Mr Hughes indicated he would be brought to Tasmania to be shown around and introduced to staff and to perform some deliveries. That would happen when he brought the truck to Tasmania for a service.
32       Mr Whitehouse says in his affidavit sworn on 3 July 2019 (exhibit E1) the principal place of business of the employer is 174 Sheffield Road, Spreyton in Tasmania. He is the Manager Director and he confirmed in examination in chief Brian Hughes is the Operations Manager. The primary business of the employer is the transport of goods, mainly vegetables and other agricultural products. There are eight employees, one of whom works in the office at Spreyton. His wife also assists in running the business at Spreyton. The remaining seven employees, including himself and Mr Hughes, drive trucks owned by the employer. Five of those employees live in Tasmania and two drivers live in Victoria.
33       In or about April 2018 Peter Richards commenced driving for the employer as a contractor. After approximately 3 months he was employed as a driver, that employment commencing on 1 July 2018. He was the first person employed by the employer who lived outside Tasmania.
34       The employer has nine trucks comprised of six prime movers and three rigid flat tops. Five of the six prime movers do work in Tasmania or go to and from Tasmania and the mainland. All of the vehicles, including those driven by Mr Richards and the worker, come back to Tasmania from time to time for servicing and maintenance and they sometimes pick up loads in Tasmania. The trucks driven by Mr Richards and the worker will also, at times, be used to carry loads from the mainland to Tasmania for delivery in Tasmania and then they will carry loads by return journey across to the mainland.
35       The employer rents part of a yard at Tottenham in Victoria where the employer can store approximately five trailers and two or three prime movers. They also have a ute registered in Tasmania which is left in the yard at Tottenham for use by employees or by Mr Whitehouse when he is in Victoria.
36       The worker's employment involves driving truckloads of freight or produce from Port Melbourne to various locations, typically in Victoria, New South Wales and just inside the border of South Australia. Sometimes the worker will take a truck home if he is passing nearby to his home on a work-related journey. When he does not have a truck he will drive his personal vehicle to Tottenham in Victoria to collect the truck and trailer and drive it to the specified destination. His employment often involves him staying overnight in New South Wales or wherever the destination for his journey is.
37       In cross-examination Mr Whitehouse indicated he commenced the business from scratch 41 years ago. It has always been based at Spreyton. Its business is transporting goods and produce from Tasmania to the mainland and vice versa. He used to use two other places in Victoria but now has the yard at Tottenham. The yard at Tottenham is convenient because of its proximity to Port Melbourne. There is also a toilet at the yard. The driving operations of the employer on the mainland include Victoria and interstate when required. The employer mainly transports to Melbourne and then overnight to Sydney. Normally the worker would pick up a truck from Tottenham on a Sunday or a Monday and when it is not in use it is kept at Tottenham. An integral part of the job is collecting trailers and goods from Port Melbourne on numerous occasions each week. Mr Whitehouse himself often flies to Melbourne and drives trucks when necessary. He conceded an employee would not be able to do the work in Victoria at the frequency required if the employee was living in South Australia, Queensland, Western Australia or New South Wales. The employer needs a truck driver based in Victoria and he says that is where the worker is based. He thought 50% of the time the truck driven by the worker would be at Tottenham whereas for the other 50% it would either be on the road or with the worker. Mr Whitehouse said when the worker finishes his work the truck is returned to Tottenham but he might take it home; for example if he was due to drive to Sydney on the Monday.
38       Mr Whitehouse said he leases the land at Tottenham and that is the base of the employer in Victoria. Spreyton is the base in Tasmania. In excess of the 100km radius from the base is when the manner of payment converts from an hourly rate to a per kilometre rate. The worker's evidence on this point is slightly different. He said the 100km radius operated from the place at which the load was collected. I prefer Mr Whitehouse's evidence on this point as he is ultimately responsible for correctly calculating the worker's pay and the email to the worker of 18 December 2018 essentially says the 100km radius operates from the depot; which I infer is the depot at Tottenham. In addition the worker agreed during cross-examination the 100km radius operates from the Tottenham yard. Of the employer's prime movers approximately two and a half are required to perform the employer's work in Tasmania and two and a half are required in Victoria. If the employer is particularly busy in Tasmania one prime mover would come to Tasmania and vice versa. There was no suggestion at any time the worker was employed by the employer prior to the 21 March 2019 he would work in Tasmania. He said the work between Victoria and Tasmania fluctuates and if required he would have brought either the worker or Mr Richards to Tasmania to work and they would have worked out of Spreyton. In addition to the payments set out in paragraph 14 a driver receives $45.00 per night when they are away from home.
39       In the last 3 weeks prior to the hearing of this matter Mr Hughes has been working in Victoria and Mr Whitehouse said he might be going to Victoria at the end of the week for a week or two. He confirms administrative functions are based at Spreyton. The work the employer has been performing it has been performing for some time. Work for one client starts and then stops and after that the employer might commence work for another client. Work for different clients can overlap but the work the employer performs is basically consistent throughout the year. All administration is done from Spreyton but they do communicate via the toolbox on the trailers which are sent to and from Tasmania. The worker's payslips are sent to him electronically and Mr Hughes contacts the worker either by phone, text message or by email. All the maintenance is done by Mr Whitehouse in Tasmania. If the trucks require emergency work to be performed on them in Victoria then they use the Kenwood DAF dealer based in Melbourne for that work. There is no workshop at the Tottenham yard.
40       Prior to 1 July 2018 the employer had drivers based in Tasmania working in Victoria. The employer then employed Peter Richards, who resides in Victoria, as a contractor before he was engaged as an employee. It appears from Mr Whitehouse's evidence he was advised by his insurance broker those workers the employer employed to carry out work 'on the mainland' would be covered under the employer's workers compensation insurance policy which was taken out in Tasmania."

The Commissioner concluded at [72]: "The evidence has not permitted a finding with respect to the State where the worker usually works in his employment however I am satisfied Victoria is the State where the worker is usually based for the purposes of his employment. I therefore determine Victoria to be the State of connection."(T5)
The Commissioner analysed the evidence as follows:
"[70] I am mindful there are some factors which are consistent with a finding that Tasmania is the State where the worker is usually based. These include the fact he is paid from Tasmania, decisions about what work he was to perform were made in Tasmania and his day to day instructions were delivered to him from Tasmania. His truck was also serviced in Tasmania. However, in my view, these factors are outweighed by a number of other factors which satisfy me Victoria is the State where the worker is usually based. They are, not in any order of importance, as follows:
i The worker is a resident of Victoria and could not have performed the work required of him by his employer if he lived in another State. From a practical point of view, it is an implied term of his engagement by the employer that in order to carry out the duties of his employment he is to reside in Victoria. His employment by this employer is conditional or dependant on him residing in Victoria.
iiThe employer's business involves transporting goods to and from Tasmania via Port Melbourne in Victoria. The employer requires truck drivers in Victoria to collect and deliver the cargo which is transported to Port Melbourne from Tasmania and to collect and deliver cargo which is transported from Victoria to Tasmania.
iiiThe worker usually commenced his work in Victoria on either a Sunday or Monday by picking up his truck from Tottenham. Sometimes he would pick up a trailer from that yard. Otherwise he would pick up trailers laden with goods for delivery from the Port Melbourne wharf. Details of the job would be contained in an envelope which was left in the toolbox of the trailer which he picked up from the Port Melbourne Wharf.
ivOnce he had delivered the cargo he had picked up at Port Melbourne whether that be interstate or within 100km of the Tottenham yard and once he had completed any deliveries he had picked up interstate or in Victoria he would usually, prior to taking a break from work, return his truck and trailer to the Tottenham depot or a trailer would be driven to the Port Melbourne wharf for delivery to Tasmania.
vOn occasions his journey, prior to taking a break from work, would end at his home at Yarck in Victoria where he would keep his truck if it was convenient to do so; for example if his next job required him to drive to Sydney.
viThe last two bullet points demonstrate the worker would always return to Victoria after completing the duties of his employment.
viiThe worker was paid on the basis that Tottenham in Victoria was the starting point for the calculation of his entitlement to wages.
viiiMr Whitehouse considered the worker was based in Victoria.
ixI have found the worker considered he was based in Victoria given the contents of the diary and what he told Mr Bellette."
Those findings of fact were consistent with the evidence. No issue is taken with them. The appellant summarised its position this way:
"Essentially we submit that the learned commissioner correctly determined the facts, he correctly identified the approach to be taken in determining the state of connection, he misapplied the test to those facts"
There are six grounds of appeal:
"1 The Tribunal erred in law in finding that at [70], for the purposes of section 31A(3)(b) of the Workers Rehabilitation and Compensation Act 1988 (The Act) that the Worker is usually based only in Victoria for the purposes of his employment when no Tribunal properly instructed in the law would have made such a finding.
2 The Tribunal erred at [70] by approaching the consideration of whether the Worker was usually based for the purposes of his employment pursuant to S31A(3)(b) of the Act on the basis of weighing up factors consistent with that proposition against factors inconsistent with the proposition rather than considering whether a clear answer to the question was apparent from the facts in determining the State of connection.
3 After correctly identifying the principles to be employed in determining the State of connection of the worker at [43], failing at [70] to apply the principle that '… if the first test provides an answer, then that is the end of the matter, but if not, the next test is applied and failing an answer emerging from that test, the third test determines the State or Territory of connection. This approach is significant, because it means that in applying each of the first two tests, it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer, it is necessary to move on to the next test.', in determining the State of connection at [70].
4 The Tribunal erred in law, after finding at [1] that the Employer's principle place of business was in Tasmania and at [46] that there was no single State in which the Worker usually works in his employment, in failing to find pursuant to section 31A(3)(c) of the Act that as a result of there being no State or single State being identified by paragraph (a) or (b) of section 31A of the Act, that consequently the State of connection should be determined to be Tasmania.
5 The Tribunal erred at [38] in finding that the Worker was paid an hourly rate rather than a per kilometre rate only when working within 100 km of the Tottenham yard when no Tribunal properly instructed and cognizant of the totality of the evidence could have made such a determination.
6 The Tribunal erred at law at [60] by failing to consider the content of the second reading speech reproduced at [41] in considering the interpretation of S31A of the Act, specifically in failing in contravention of Section 8B(1)(c) of the Acts Interpretation Act to consider whether the content of the second reading speech confirmed that one purpose of the said section was to eliminate the need for Employers to obtain workers compensation cover in more than one jurisdiction and enabling employers to readily determine the State in which to obtain insurance."
At hearing the appellant clarified its grounds, indicating that it relied on ground 1, and that each of grounds 2, 3 and 4 were the ways in which it was submitted that "no tribunal properly instructed in the law would make such finding" (T6). In a sense these paragraphs were the "particulars" of ground 1.
Ground 5 was abandoned. Ground 6 is pursued.
The appeal engages the provisions of Div 2 of Pt 3 of the Act. The appellant seeks an order pursuant to s 31A(3)(c) of the Act substituting the Tribunal's determination, with an order nominating Tasmania as the state of connection.
The Tribunal noted the paucity of cases in this jurisdiction on the matter of the state of connection, and identified the principles it considered applicable based upon a survey of cases across jurisdictions, where the provision is mirrored:
"43The Tribunal has only produced a few prior decisions which have considered the State of connection. One such decision is Ron Gee Enterprises v V [2015] TASWRCT 41 - however because similar legislation has been introduced in a number of other States there are decisions in those States which are relevant to an interpretation of certain terms used in s 31A(3) and the operation of the tests which are set out in that subsection. The principles derived from those cases are as follows:
• Regard should always be had to the terms of the contract of employment: Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83 at [60].
• Section 31A(3) provides a sequential or cascading series of steps or tests for determining the State of connection: Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186 at [52] and Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 at [15].
• The sequential or cascading approach means the tests are not applied together. As explained in Avon Products Pty Ltd v Falls [2010] ACTCA 21 at [10], '... if the first test provides an answer, then that is the end of the matter, but if not, the next test is applied and failing an answer emerging from that test, the third test determines the State or Territory of connection. This approach is significant, because it means that in applying each of the first two tests, it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer, it is necessary to move on to the next test.'
• The term 'usually works' in s 31A(3)(a) is not synonymous with where the worker 'works for the majority of the time': Tamboritha Consultants Pty Ltd v Knight (supra) at [76]. Instead the term should be interpreted as meaning where the worker habitually or customarily works or where he works in a regular manner: Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 at [26].
• The fact a worker's time is predominantly spent in one State does not necessarily mean that State is the only State in which the worker 'usually works'. The worker will usually work in more than one State if she/he habitually or customarily works in a second State. In such cases there will be no one State identified as the State where the worker usually works: Ferguson v WorkCover Queensland [2013] QSC 78 at [34].
• That for the proviso stipulated by s 31A(6)(b) to have any work to do, any temporary arrangement contemplated by that provision must be seen as part of a longer or indefinite period of employment: Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27 at [80].
• The use of the term 'usually based' in s 31A(3)(b) suggests it has a different meaning to the term 'usually works' in s 31A(3)(a): Tamboritha Consultants Pty Ltd v Knight (supra) at [80]. However, they may coincide: Martin v RJ Hibbens Pty Ltd (supra) at [53].
• The type of matters contemplated by the expression 'usually based for the purposes of the employment' referred to in s 31A(3)(b) includes the work location specified in a contract of employment, the location a worker routinely attends to receive directions or collect materials or equipment in relation to the works, the location the worker reports to in relation to the work and the location from which his wages are paid: Tamboritha Consultants Pty Ltd v Knight (supra) at [83]." [Footnotes omitted.]

Ground 1

The appellant's complaint is that the Commissioner ought to have concluded that there was no clear evidence of a single base in one State, such that s 31A(3)(c) applied. His contention is that no tribunal properly applying the law could have reached the conclusion the Tribunal did.
I observe that the statutory formulation of the test for State of connection requires a particular result upon the Tribunal finding certain facts. In that way s 31A(3) excludes any notion of discretion by requiring a particular, specified conclusion once certain facts are found.
Since the appellant does not attack the findings of fact, its argument, as I apprehend it, should be understood as asserting that the result lacks an evident and intelligible justification on the evidence: Minister for Immigration and Citizenship v Li (2013) HCA 18, 249 CLR 332 at [76]. In that case the High Court identified categories of error that would amount to legal unreasonableness which would attract appellate intervention. One of these identifies error when the decision maker reasons illogically or irrationally. At [72] Hayne, Kiefel and Bell JJ identified that type of error:
"… Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense."
The plurality invoked House v The King (1936) 55 CLR 499 for the principle of implied, but non-specific error in circumstances where the result reached is unreasonable.
Within its submissions on this ground the appellant seeks to impugn the Tribunal's method, complaining that its approach to the statutory task was incorrect in so far as it weighed competing considerations (see ground 2) and ignored the cascading nature of s 31A(3) (grounds 3 and 4).
Section 31A(3)(a) was not engaged in this case because the facts excluded its operation. The worker was not usually working in a particular state due to the type of work he was doing.
Section 31A(3)(b) required the Tribunal to determine where the worker was usually based for the purposes of the employment.
The Commissioner noted, correctly, that it was not enough to determine the best answer in all the circumstances. The Tribunal was required to assess whether there was a clear answer to the question.
The requirement for a "clear answer" is derived from the decision of the Full Court of the ACT in Avon Products Pty Ltd v Falls [2010] ACTCA 21, 5 ACTLR 34. In that decision at [10] after identifying the cascading nature of the test in the equivalent legislation, the court said:
"… this approach is significant, because it means that in applying each of the first two tests, it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer it is necessary to move onto the next test."
The appellant submits that the lack of a clear answer is identified by the Commissioner in his reasons at [70] when he acknowledges the existence of competing factors:
"I am mindful there are some factors which are consistent with a finding that Tasmania is the State where the worker is usually based. These include the fact he is paid from Tasmania, decisions about what work he was to perform were made in Tasmania and his day to day instructions were delivered to him from Tasmania. His truck was also serviced in Tasmania …".
The Commissioner refers to these factors being "outweighed" by others, language said to expose an incorrect approach to the task.
It is submitted that the fact that there are competing indicators, means there is no clear State of connection.
The Court was referred to a number of authorities. The conclusion as to the state of connection reached in each of those cases rests on its own facts.
As a general proposition I do not think that all roads must lead to a single conclusion before there can be a clear answer about the State of connection. The Act posits no requirement that all relevant indicia must point to a single result, and logically that cannot be so. I do not understand Avon or the other authorities to which the Court was referred to say otherwise: Jakmax Pty Ltd v Taylor [2017] NSWWCCPD 24; Borg v Workcover [2010] SAWCT 32; Ferguson v Workcover Queensland [2013] QSC 78; Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1.
The process involved in decision making requires the identification of relevant facts. Those facts are to be applied to the statutory criteria. Of the facts that are relevant, some might point towards different conclusions. When they do the statutory task entails an evaluative exercise, which incorporates the attribution of weight to the facts found. Weight will be determined in accordance with the statutory elements required to be considered, guided by the authorities.
A fair reading of the Tribunal reasons shows that the Commissioner has approached the task that way. Facts have been found and the approach required by the Act and relevant authorities identified and applied. In observing that there were matters which pointed to a different conclusion the Commissioner was merely noting the state of the evidence before applying judicial method to the evidence to arrive at a conclusion. I do not think he was suggesting that there were matters of equivalent weight capable of sustaining alternative conclusions such that a definitive answer to the question was impossible. The Commissioner has concluded that the factual matters which pointed to the appellant being based in Victoria overwhelmed those matters which might suggest the State of connection was Tasmania and were sufficient to enable him to arrive at a "clear answer" to the question.
The method employed by the Tribunal was correct. Its analysis is unimpeachable. It follows, that I reject the Appellant's submission that the Tribunal should have concluded that the Appellant had multiple bases, including his truck.
The Tribunal posed for itself the correct question, considered it according to the correct method and the conclusion reached was open on the facts. It is unassailable on review.
Once satisfied as to s 31A(3)(b) the Tribunal did not need to proceed to subs (3)(c). Accordingly, I reject the submission that the Tribunal failed to adopt the cascading approach referred to in Avon (above).
The appellant has proceeded as if it is enough to show that on the evidence it should have succeeded in making the case that no state of connection could be determined. But it is not the case that on the evidence, no tribunal properly applying the law could have reached the conclusion the Tribunal did; it is not the case that conclusion lacks an evident and intelligible justification, or that it is the result of illogical or irrational reasoning. On the contrary the decision that Victoria was the State of connection was open on the evidence and the Commissioner was entitled to be satisfied that there was a clear answer to the question posed by s 31A.
This Court is not engaged in a merits review. The appellate process does not afford to this court an opportunity to substitute its own view of the correct or preferable conclusion on the facts. The appellant must establish that the Tribunal's finding was not open to it, in the sense of there being no evidence to sustain its finding: Haritos v Commissioner of Taxation [2014] FCA 96, 62 AAR 467 at[27]. It has not done so.
As is noted in Aronson, Dyer and Groves Judicial Review of Administrative Action, 3^rd ed,. Lawbook Co 2004 at 187:
"… there is usually no error of law where the decision-makers have understood or correctly stated the legal test, and the essence of the complaint is that they failed to apply it correctly. There will be legal error, however, if the complainant can show that the purported application of the test was either deliberately disingenuous (in other words, a dishonest sham), or that it was applied arbitrarily, capriciously or irrationally. Irrationality in this context must be of a high order. … there is legal error if the decision was not reasonably open."
No error is demonstrated, and ground 1, incorporating grounds 2 and 3 as noted, is dismissed.

Ground 6

Ground 6 is as follows:
"The Tribunal erred at law at [60] by failing to consider the content of the second reading speech reproduced at [41] in considering the interpretation of S31A of the Act, specifically in failing in contravention of Section 8B(1 )(c) of the Acts Interpretation Act to consider whether the content of the second reading speech confirmed that one purpose of the said section was to eliminate the need for Employers to obtain workers compensation cover in more than one jurisdiction and enabling employers to readily determine the State in which to obtain insurance."
The proposition at the core of this ground, was repeated in argument more than once.
"MR HILLIARD: It's a matter of nuances, your Honour, but, in my submission, it's clear from the intent of parliament - was to remedy a problem which businesses were experiencing with workers compensation legislation across Australia. The problem was that if a worker was sometimes to work out of jurisdictions, then employers were being forced to obtain multiple insurance policies to cover each worker. It was considered to be difficult for employees to know when they were covered and therefore they were acting on the basis of a great deal of – they had to cover the field or they were leaving themselves uninsured and therefore liable to their workers in relation to their liabilities under Act which they were unaware of. It's in relation to that problem, that mischief, that they were trying to fix, that this legislation needs to be understood. It was a provision which was to give readily ascertainable insurance for a business person. A business person has to be able to understand where he needed to have his insurance policy to cover all of his workers."

Then later, this:
"MR HILLIARD: The parliament was trying to solve a problem for business people, that they needed to make choices about their workers compensation coverage. They were being forced to take out multiple policies across different states. They intended to put into place a provision across all jurisdictions – and it's mirrored across all jurisdictions, so that business people across Australia could readily ascertain where they needed to have their policy (indistinct words) it should be an easy, straightforward question.
… The commissioner, in my submission, took a literal approach to the provision, rather than understanding its intent and looking at it from the point of view of a business person making a decision as to where he should place his insurance."
The task before the Tribunal required it to give the words of the Act the meaning the legislature intended them to have: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Certain Lloyd's Underwriters v Cross [2012] HCA 56, 248 CLR 378 at [23]-[32], [68]-[70], [88]-[89]. That required a consideration of the words, and their grammatical meaning, by reference to the Act as a whole. In construing the provision, its purpose and policy may need to be considered: Project Blue Sky Inc (above) at [69]-[71] and [78]. Section 8A of the Acts Interpretation Act 1931 (Tas) requires an interpretation which promotes the purpose of the provision over one that does not. Self-evidently, the Tribunal is not permitted to give the Act a construction that is unreasonable: IW v Applicant City of Perth (1997) 191 CLR 1 at 12.
That a court or tribunal may have regard to extraneous material for the purposes of interpreting a statutory provision cannot be doubted. Section 8B of the Acts Interpretation Act expressly makes provision therefor. Recourse to such materials is not mandated and the failure to do does not of itself constitute error. A failure to refer to extraneous materials might be an explanation for error, but it is not itself the legal error which engages the appellate intervention sought. Appealable error lies in an erroneous interpretation of the provision.
The complaint is that the statutory provision was interpreted literally, rather than in accordance with its purpose. The appellant has not said how the failure to advert to the second reading speech would have made any difference to the result. I infer it is suggested that if the Tribunal had comprehended the purpose of the provision more fully (or at all), it would have taken a different view of the facts and reached a different conclusion upon those facts. The Tribunal undertook a comprehensive survey of the authorities which have considered this issue. In my view there is nothing to suggest it has not understood the terms, or context, or the underlying purpose of the provision. The second reading speech merely restates that purpose. The Tribunal's approach was in accordance with that articulated in Project Blue Sky Incv Australian Broadcasting Authority (above). This ground is unmeritorious, and it is dismissed.
In light of these conclusions the appeal is dismissed. I will hear the parties as to costs.