Tozer v I.D. Transport Pty Ltd
[2005] NSWWCCPD 101
•31 August 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Tozer v I. D. Transport Pty Ltd [2005] NSW WCC PD 101
APPELLANT: Richard Tozer
RESPONDENT: I. D. Transport Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC12331-2003
DATE OF ARBITRATOR’S DECISION: 16 June 2004
DATE OF APPEAL DECISION: 31 August 2005
SUBJECT MATTER OF DECISION: Territorial jurisdiction
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: Adams Leyland Solicitors
Respondent: Diana Benk, In house Legal Department for QBE Workers Compensation (NSW) Limited
ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator, dated 16 June 2004, is revoked.
(2) The matter is remitted to the Arbitrator (or another arbitrator if the Arbitrator is not available) for determination in accordance with this decision.
(3) The Respondent is to pay the Appellant’s costs of the appeal.
(4) The costs of the original proceedings are referred to the Arbitrator for determination at the next arbitration.
BACKGROUND TO THE APPEAL
The appellant is Mr Richard Tozer (‘the Appellant’). He seeks leave to appeal the decision of an arbitrator (‘the Arbitrator’) made 16 June 2004. The Arbitrator dismissed Mr Tozer’s application for weekly compensation, medical expenses, compensation for permanent impairment and compensation for pain and suffering in relation to an injury to his neck and left arm. The Arbitrator dismissed the application on the basis that, although the injury occurred in New South Wales, there were insufficient other connectors to the state of New South Wales to give the Workers Compensation Commission (“the Commission’) jurisdiction to hear and determine the application.
The Appellant filed his appeal on 13 July 2004. The respondent was his employer when the injury occurred, I. D. Transport Pty Ltd (“the Respondent’). The Respondent is represented by its New South Wales insurer, QBE Workers Compensation (NSW) Limited (‘the Insurer’). The Respondent opposed the application on the grounds of territorial jurisdiction and opposes the appeal.
The following broad outline of the facts is not in dispute. The Appellant was employed by the Respondent as an interstate truck driver from September 1999 to 2003. At the time his employment commenced he lived in Queensland. The headquarters of the Respondent is in Victoria. The Appellant was required to drive along the eastern seaboard i.e. from Brisbane to Melbourne, via Sydney. On 10 January 2000 he suffered an injury in Tenterfield, northern New South Wales, while loading pumpkins at a farm in the course of his work. A pumpkin fell from a height and hit his neck. He lodged a claim for compensation in respect of this injury in Brisbane, and was paid weekly compensation by the Respondent’s Victorian workers compensation insurer for almost a year.
He returned to work for the Respondent in January 2001. At some point after the January 2000 injury he moved to Sydney to live. Later in 2001 and again in 2002 he suffered other work injuries, including aggravation of neck pain, which caused him to have periods off work or on lighter duties. He was paid weekly compensation from 1 March 2002, when he submitted a claim to the Insurer in respect of an aggravation of neck pain suffered on 24 February 2002, to May 2003. The Insurer denied liability for further payment by letter dated 28 March 2003 on the basis that any incapacity arose from the injury he had suffered in January 2000, and not the aggravation of that injury on 24 February 2002. He filed his application to the Commission on 18 July 2003, seeking compensation in respect of both injuries. The Appellant commenced work intermittently for another trucking company shortly after compensation payments ceased. To the date of the arbitration he had been certified totally unfit for this work for two periods in September 2003, and January to March 2004.
As the Respondent had not filed a reply within time Mr Tozer was examined by an Approved Medical Specialist, Dr Isbister, on 15 December 2003. Dr Isbister’s report was sent to the Commission and thence to the parties on 20 February 2004. Dr Isbister was of the opinion that Mr Tozer had suffered a cervical disc injury on 10 January 2000, causing permanent impairment of his neck (25% on pre 2002 tables) and left arm at/or above the elbow (15% on pre 2002 tables). He considered that the whole of this impairment was pre-existing to the injury of 24 February 2002, which was “a temporary aggravation” (report page 9). At the arbitration the Appellant conceded that the relevant injury for the purposes of the application was the injury on 10 January 2000 ( see submissions dated 20 April 2004, paragraph 4.2) and abandoned his claim for weekly compensation, except for the periods of total incapacity (submissions, paragraph 5.3 and 5.4, transcript page 3).
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 16 June 2004, records the Arbitrator’s orders as follows:
“1. The Application is dismissed (for want of jurisdiction)
2. No order is made in relation to costs.”
The Arbitrator found that there were insufficient connectors with the state of New South Wales to enable the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) to apply to the injury of 10 January 2000 so as to confer jurisdiction on the Commission. The core of his reasoning is contained in paragraphs 37-40 of his Reasons, which provide as follows (emphasis added):
“37. What was the relevant connector with NSW? At the time of the injury (10 January 2000) the Applicant was passing through NSW on an interstate freight pick up and delivery job to Melbourne, Victoria assigned to him by the Respondent from its south east Queensland place of business.
38. The specific terms of his employment are not apparent from the evidence. However, the evidence does not satisfy me that it was a term of the employment contract that the Applicant was to principally and/or regularly work in NSW and then return across the border to his home in south east Queensland. That the Applicant may have spent more time driving his truck in NSW as an interstate truck driver can be explained in my opinion by factors such as the distance between the Queensland and Victorian state borders. I note that the main routes to be travelled by the Applicant were Brisbane-Melbourne, Brisbane-Sydney and Brisbane-Adelaide (Applicant’s statement at para 6).
39. In my opinion the only relevant territorial connection with NSW in this matter is the fact that the Applicant was injured on 10 January 2000 at Tenterfield, NSW while the Applicant was on an interstate freight journey from Brisbane/Stanhope, Queensland, to Melbourne, Victoria. The evidence satisfies me that the Applicant was at the time passing through New [sic] on that interstate journey.
40. I am of the opinion that the above fact (para 39) does not, of itself, constitute facts or events having a sufficient territorial connection with the State of NSW to ground jurisdiction in respect to the Application.”
ISSUES IN DISPUTE
The Appellant asserts that the Arbitrator was in error in finding that at the time of the injury the Appellant was “merely passing through New South Wales.” Further, he asserts that the Arbitrator erred in finding there were insufficient connectors to New South Wales for the 1987 and 1998 Acts to apply to the injury. Specifically, the Appellant relies on the fact that he was directly engaged in his duties when he was injured in New South Wales, which duties included requiring him to deliver loads to places in New South Wales and collect loads in New South Wales.
The Respondent asserts that the Appellant has not established any error on the part of the Arbitrator “which would warrant intervention at an appellate level” (submissions in reply to the appeal, paragraph 2). The Respondent notes that “there is no complaint or suggestion that the Arbitrator erred in his statement of the relevant principles to be applied” (paragraph 4), asserts that the matters raised by the Appellant as supporting sufficient connection with New South Wales were “all considered by the Arbitrator” (paragraph 8) and asserts that the Arbitrator’s finding that there were insufficient connectors with New South Wales was “a purely factual finding which was clearly open to the Arbitrator.”(paragraph 6). The Respondent also asserts that the Arbitrator was correct in his conclusions (paragraph 9).
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant agrees that the appeal be determined on the papers. The Respondent seeks to be heard only if the Commission does not propose to dismiss the appeal. Having regard to this request, I gave the parties a further opportunity to make submissions by Direction dated 28 July 2005, which gave the parties the opportunity to comment on two further cases and the outcome if the Arbitrator was in error in finding that the Appellant was “passing through” New South Wales at the time of injury. Each party has made further submissions. Neither seeks further to be heard. Accordingly, having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and all the submissions of the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Appellant asserts that the requirements for leave are met by the sums sought in the original application. The Appellant sought the sum of approximately $3,970 by way of weekly compensation and $21,250 by way of compensation for permanent impairment, as reported by Dr Isbister. The Appellant also sought a sum for pain and suffering. These sums exceed the minimum requirement in paragraph (a) of sub-section (2) of section 352. In relation to paragraph (b), no amount was awarded on the application. A number of Commission decisions by Presidential members, commencing with Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, have held that paragraph (b) is not applicable to appeals against decisions in which no award is made.
The Respondent does not dispute these matters, but opposes the grant of leave on the basis that “there are insufficient prospects of success on the Appeal to justify leave being granted” (paragraph 1 of its submissions in reply to the appeal). It is not the practice of the Commission to refuse leave for this reason, if the threshold financial and time requirements have been met. I find that the appeal satisfies the threshold requirements of section 352 and grant leave to appeal.
EVIDENCE AND SUBMISSIONS
The material before me consists of the following:
The application and attached documents
Dr Isbister’s report forwarded 20 February 2004
Submissions in support of the application dated 20 April 2004
The Respondent’s application to admit a late document, being its reply, and the reply dated 14 May 2004 (the Arbitrator having granted leave to admit the reply)
Respondent’s submissions dated 17 May 2004
Transcript of the arbitration, held 18 May 2004
Further submissions by the then applicant, dated 25 May 2004
Submissions in reply by the Respondent dated 26 May 2004
The appeal and submissions in support
Further submissions by the Appellant dated 19 July 2004 and 6 September 2004 in relation to threshold issues
Submissions in reply to the appeal
Further submissions by each party in response to the Direction dated 28 July 2005.
DISCUSSION AND FINDINGS
The Arbitrator’s finding that the Appellant was “passing through” New South Wales when the injury occurred
The Appellant asserts that the Arbitrator was incorrect in his conclusion that the Appellant was merely “passing through” New South Wales when the injury occurred. As a result of this finding, the Arbitrator found that the only connection between the injury and New South Wales was that it occurred in New South Wales, and he did not consider that this alone was sufficient for the New South Wales legislation to apply. The Respondent asserts that this finding was open to the Arbitrator on the evidence, and does not constitute an error.
The only direct evidence in relation to the employment performed by the Appellant for the Respondent and the occurrence of the injury is contained in the two statements of the Appellant, which are attached to his original application, and his application for employment, which is attached to the reply. The Appellant did not give oral evidence at the arbitration, and the Respondent did not tender any written or oral evidence in relation to these matters, other than the application for employment. In particular, the Respondent did not tender any statement of duties, or any evidence as to the nature of the employment. The only evidence as to the nature of the employment and the Appellant’s duties are his statements. In his statement dated 27 May 2003, the Appellant describes his employment and the injury of 10 January 2000 in the following terms:
“I began work for ID Transport in early September 1999. I worked Brisbane/Melbourne, Brisbane/Sydney, Brisbane/Adelaide. [He then sets out his trips in the week starting 16 December 1999 but without indicating whether or not that was a typical week]. Most of the time I was driving in NSW.
On 10 January 2000 I had driven from Brisbane to Stanthorpe [in Queensland] and picked up pallets and I was directed to a farm near Tenterfield [in NSW]. I loaded 40 pallets (bins) of pumpkins for Safeway in Melbourne.
The bins have a pallet between each bin. They are double stacked i.e. 2 high. They are lifted through the back doors of the truck and then I have to manoeuvre them into place with a pallet jack. They weigh 800-1000kg. I was jamming the bins into place and a pumpkin fell out of the top bin and struck me on the back of the head and neck.
I had immediate pain in my neck but I thought it would be OK until I got home. I drove to Melbourne and back to Brisbane. I reported the accident to Bob Thorpe (Brisbane manager)” (paragraphs 6-9)
In his statement of 3 January 2003, which focused on the later injuries, the Appellant said this in relation to his duties:
“My duties included driving the truck along the eastern seabord [sic] of Australia. I worked alone driving the truck. I had assistance at the depots. We mainly transported refrigerated goods. There are also other goods transported on some occasions. The refrigerated goods would probably account for the majority of the work.
I need a valid truck driver’s licence to do the work. I knew how to load the truck and knew how to do the work. Sometimes you use pallet jacks or forklift trucks for the palleted [sic] goods. I didn’t need any special training.” (paragraphs 12 and 13)
Elsewhere in that statement the Appellant refers to the “Sydney depot” of the Respondent and states that the incident of neck pain he suffered on 24 February 2002 occurred while he was unloading newspapers in Melbourne (paragraphs 11 and 17).
The application for employment attached to the reply states that the Appellant is applying for a full time position as an “interstate truck driver”. It gives his address as in Queensland, and the Respondent’s address in Victoria.
The Arbitrator refers to the submission by the Appellant that sufficient connection to New South Wales was established “for the reasons that the Applicant’s job required him to drive though NSW and was therefore carrying out his work in that State.” (paragraphs 24 and 35 Statement of Reasons). He refers to the evidence of the Appellant as to the nature of his duties contained in the portions of his statements to which I have referred (paragraph 33 point 4 of the Reasons). He refers to the circumstances of the injury, also as set out in those statements (paragraph 33 point 5 of the Reasons). He sets out other matters that connected the employment with Queensland which are not in dispute (that the Appellant lived there, the contract of employment was made there, the Respondent had a depot there, paid the Appellant there and allocated work from there) and with Victoria (the headquarters of the Respondent). On the basis of this material, the Arbitrator set out his findings in paragraph 34 of his Reasons. Points 2-4 of those findings are in these terms:
“That under the contract of employment the Applicant was engaged as an interstate truck driver. That the Applicant’s duties consisted of driving trucks along the eastern seaboard from North Queensland to Melbourne in Victoria and to various places in between …and to Adelaide, S.A. By inference, this included loading and unloading freight in New South Wales and the other states as part of the Applicant’s interstate driving work.
That the Applicant suffered an injury on 10 January 2002 at Tenterfield, NSW, when loading his truck with pumpkins while carrying out interstate truck driving work, commencing in Brisbane then to Stanthorpe (Queensland) to pick up a load of pumpkins at Tenterfield NSW for delivery to Safeway in Melbourne.
That the Applicant took the load to Melbourne and then drove his truck back to Brisbane (it seems to the Respondent’s depot).”
Notwithstanding these findings, the Arbitrator then describes the Appellant’s presence in New South Wales as “passing through…on an interstate freight pick up and delivery job to Melbourne, Victoria assigned to him by the Respondent from its south east Queensland place of business” (paragraph 37- the description “passing through …on an interstate journey” is used again in paragraph 39). He states that he is not satisfied that “it was a term of the employment contract that the Applicant was to principally and/or regularly work in NSW and then return across the border to his home in south east Queensland” and says the proportion of time in New South Wales is due to the geography, and so, he implies, the amount of time in New South Wales factor is not a relevant connector to this state (paragraph 38).
In my view the Arbitrator erred in the conclusion he reached as a result of his factual findings. The findings themselves are unimpeachable, and were clearly established by the evidence. The conclusion that the Appellant was merely “passing through” New South Wales when the injury occurred was not, however, in my view open on those findings. I consider it flawed for two reasons. First, it fails to recognise that the injury occurred when the Appellant was engaging in an active step required by his work i.e. the loading of freight in New South Wales. The Arbitrator found that this is how the injury occurred, but then gives no weight to it in his conclusion. Secondly, it implies that the Appellant’s presence in New South Wales was almost incidental to the main purpose of his employment, or this trip at least, being the transport of goods from Brisbane to Melbourne. That conclusion is not supported by the evidence. The Arbitrator’s own findings establish that the purpose of this trip at least included loading goods in New South Wales. Further, and more broadly, in my view it is an integral part of interstate truck driving that work takes place in a number of states. The work is at least the driving, even if there is no loading or unloading other than at the start and the finish of the trip. Thus if an interstate truck driver is injured in the course of driving his normal route, then in my view the connection to the state in which the injury occurs is not just the location of the injury, but also that the employment contract contemplates that that state is a normal place of work, albeit not the only one, for the worker.
For these reasons I do not consider the phrase “passing through” accurately reflects the Arbitrator’s findings that the Appellant’s duties consisted of driving “along the eastern seaboard from North Queensland to Melbourne in Victoria and to various places in between”. Driving these routes necessarily contemplates that a substantial portion of time will be spent engaged in work, being at least driving, in New South Wales, as well as in Queensland and Victoria. The work of transporting goods from one state to another and return is effected by driving, and so driving is a substantial, and probably the most substantial, component of the work. The Arbitrator seems to suggest that there would only be sufficient connection to New South Wales if the employment contract was to work in New South Wales, and then return to Queensland. Certainly such an employment contract would be connected to New South Wales, but so, in my view, is a contract which necessarily required the worker to drive in New South Wales in the course of transporting goods between states either side of it. I do not consider the connection to New South Wales is lost because it is not the only state in which the Appellant worked, or because the work required the driver to continue to another state before returning to Queensland.
Further, the Arbitrator acknowledges that the employment required the Appellant to be present in New South Wales for more time than in other states, but says this is a mere accident of geography. In my view, this is an error because it does not give weight to the fact that the work was driving, as well as leaving and arriving. The Appellant’s evidence that he spent the majority of his time in New South Wales supports the conclusion that the employment contract contemplated that a substantial portion of the work, being driving, would take place in New South Wales.
The Respondent submits that the Arbitrator’s conclusion on this issue was a finding of fact he was entitled to make on the evidence before him, and should not be disturbed on appeal. I do not consider this correct. This was not a case where competing evidence was given, and the Arbitrator preferred one person’s evidence to that of another. The evidence on these issues came solely from the Appellant and was undisputed. There was no oral evidence, and accordingly no questions of credit or demeanour. The Arbitrator’s findings of fact were entirely supported by the evidence, but he then departed from them in his ultimate conclusion on this issue. In my view this is an error of reasoning that requires correction on appeal. As this error has been established the Commission is required to reconsider the issue of jurisdiction and may substitute its own decision (see Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
The Respondent in it further submissions dated 4 August 2005 argues that because every trip carried with it the intention to return to Queensland there was insufficient connection with New South Wales (and presumably any other state traversed in the journey). I do not consider this gives sufficient weight to driving as the work itself, not just the leaving and returning to a particular point.
In summary, on the evidence before the Arbitrator the only conclusion available was that the employment contract contemplated that the Appellant would undertake a substantial component of his work in New South Wales. In addition to this fact, which establishes a connection to New South Wales, the injury also occurred in New South Wales. On the evidence these are the only relevant connections to New South Wales. The Arbitrator was correct in taking the view that the applicability of the New South Wales legislation must be determined as at the date of the injury, and at that time the Appellant resided in Queensland. The employment contract was entered into in that state. Further, although the Respondent had depots in Sydney and in Brisbane, on the evidence its principal place of business was in Victoria. The issue that then arises is whether these two connections to New South Wales are sufficient for the New South Wales legislation to apply, so as to confer jurisdiction on the Commission to determine the application.
Law of territorial jurisdiction
The applicability of the workers compensation legislation of a state to employment which is not solely connected to that state has been considered in a number of decisions, the most significant of which were raised by the Respondent in its oral submissions at the arbitration. The Appellant was given the opportunity to comment on those submissions in writing after the arbitration, presumably because these authorities had not been adverted to in the Respondent’s reply or submissions filed before the arbitration. The Arbitrator considered these decisions in his Reasons, in particular the most recent decision, Stanley v Gallagher and Ors [2002] NSWCA 174. In that case Pearlman AJA., with whom Stein JA. and Heydon JA. agreed, adopted the test outlined by Kirby P. in Commissioner for Railways for the State of Queensland v Peters and Anor (1991) 24 NSWLR 407 (‘Peters’), that what is required is “a relevant connection with New South Wales”.
The issue in this case is whether sufficient connection is established by reason of the injury being in New South Wales and a substantial portion of the worker’s work being performed in New South Wales. In Stanley v Gallager and Peters, together with other earlier authorities, although the test was propounded in terms that might suggest only one connection is required, there were in fact multiple connections on the facts of those cases. Thus it is necessary to consider the question from first principles.
The earliest authority is Mynott v Barnard (1939) 62 CLR 68. That case concerned the death of a worker who was injured at his workplace in New South Wales. The worker and his employer were resident in Victoria and the contract of employment had been made in Victoria. The contract was to perform work solely in New South Wales. The worker’s dependants filed an application under the Victorian legislation. The High Court upheld the decision of the Supreme Court that the action failed, but the judges were not unanimous in their opinion as to why. Latham C.J. and Starke J. held that the critical factor was where the injury occurred- the Victorian Act only applied to accidents occurring in Victoria. Rich J. and Dixon J. held that the Act did not apply because the employment of the worker was not carried out in Victoria. McTiernan J. did not specify what was the disabling factor that caused the application to fail. He stated that the case was governed by the decision in Tomalin v S. Pearson & Son Ltd (1909) 2 K.B. 61. This did not identify precisely the disabling factor because the judges in that case also took different views (see the discussion by Dixon J. of that case in Mynott v Barnard).
Thus Mynott v Barnard stands for the proposition that where neither the injury nor the carrying out of work occurred in the state, the workers compensation legislation will not apply (subject to any legislative extension). On the evidence in this case, both the injury and the carrying out of a major component of the work occurred in New South Wales, which would tend to suggest that on the principles of Mynott v Barnard the New South Wales legislation should apply. This is subject to two caveats. First, Mynott v Barnard did not hold that the occurrence of injury and work in one state was sufficient to enable that state’s legislation to apply, in the absence of other connectors to the state; merely that these factors (or one of them) was necessary. Secondly, Mynott v Barnard is of some vintage, and the principles have been considered much more recently by the New South Wales Court of Appeal. It may be more appropriate to apply those more recent cases. Further, in one of those cases, Workcover Authority of New South Wales v Billpat Holdings Pty Ltd & Ors (1995) 11 NSWCCR 565 (‘Billpat’), Kirby P. commented that the approach to territorial jurisdiction had changed since Mynott v Barnard. However, as the view as to what is sufficient connection is, in his words, “no longer as narrow as it formerly was”, this development should if anything make injury or place of work in the state sufficient, even if they were not so in earlier times.
The more recent authorities are Peters, Billpat, FAI Traders Insurance Co Ltd v Price & Ors [1999] NSWCA 425 (‘Price’) and Stanley v Gallagher. Kirby P. developed the test for connection in Peters, which was then applied in Billpat and Stanley v Gallagher. Peters concerned an injury to a New South Wales resident in New South Wales who had been engaged by the Commissioner for Railways for Queensland to cut sleepers. The work was performed in New South Wales. Kirby P., with whom Priestley JA. and Waddell JA. agreed, held that:
“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.” (page 437)
The use of the singular article “a” and singular word “connection” in this test suggests that only one connection may be required. That was not the situation on the facts of that case, however. Although Kirby P. referred to extra territorial jurisdiction in very broad terms, even suggesting that injury in the jurisdiction was not required, there were in that case multiple connections with New South Wales, and, indeed, the only factor relating to another state was the location of the employer.
The next case, Billpat, concerned an injury to a worker in New South Wales while travelling from his place of work in Queensland to his home in New South Wales. The worker argued that the only connection to New South Wales required to bring into operation the New South Wales legislation is injury in the state (see Kirby P. paragraph 38), but also relied on the other connections on the facts of that case (paragraph 41). The insurer in that case submitted that in addition to injury in the state, employment in the state must also be proved (paragraph 41). The Court chose to determine the case on its facts, without itemising which factors were critical. It does appear, however, that the Court regarded it as essential that there be some connection in addition to injury in the state. After outlining the respective positions of the parties Kirby P. continued (emphasis added) “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” (paragraph 44). The factors relied on in that case principally related to the location of the employer in New South Wales, but the Court also referred to the employment of New South Wales residents, such as the worker in that case, and the making of the contract of employment in New South Wales.
The question of territorial jurisdiction arose in the next case, Price, but was not decided. In the most recent case, Stanley v Gallagher, the Court of Appeal overturned a decision of the Compensation Court that the New South Wales legislation did not apply. The Court held that the trial judge had misdirected himself by interpreting Billpat as confining the enquiry to connections between the employer and the state. Pearlman AJA., with whom Stein and Heydon JJ.A. agreed, held that there must be sufficient connection to New South Wales, but this is not confined to the connection of the employer to the state (paragraphs 24, 26). In Stanley v Gallagher, as well as in Billpat, the worker invited the Court to hold that injury in the state was sufficient. Pearlman AJA. noted that counsel for the worker relied on the singular use of “connection” in the quote from Kirby P. in Peters (paragraph 26). Pearlman AJA. also noted that Mynott v Barnard would support the conclusion that injury in the state is sufficient (paragraph 26). It was not necessary, however, on the facts in Stanley v Gallagher to so find, and the Court set out the other connectors to New South Wales. These were the residence of the worker in New South Wales, his engagement to work and payment in New South Wales and the regularity of cross border employment of this type in the industry concerned. Regular cross border employment was also a factor in Peters (Kirby P. page 438).
In all of these cases the Court of Appeal held that the New South Wales legislation applied, despite the fact that there were some factors in each case that were linked to another state. In common with the present case, in each of these cases the injury occurred in New South Wales. In each, however, there were a number of factors that linked the claim to New South Wales in addition to injury in New South Wales. Specifically, in each of them, the worker lived in New South Wales at the time of the injury. In Billpat the employer was also located in New South Wales, and in Billpat and Stanley v Gallagher the contract for employment was also made in New South Wales and the worker was paid in New South Wales. What is unclear from these cases is which of these additional factors, if any, are critical. It does appear that something other than injury in the state is required. There is no case that has held that injury in the state is sufficient, and the comments of Kirby P. in Billpat suggest that it is not. The cases do not, however, provide clarity as to what that additional factor or factors is or are, and it may differ from case to case. Here the additional factor is location of a place of work in the state. This factor does not appear necessary (see Billpat and Stanley v Gallagher, as compared with the view of Dixon J. in Mynott v Barnard), provided other sufficient connection exists. Is it sufficient, however, together with injury in this state? In every case referred to, where jurisdiction was found, the worker resided in New South Wales, and this was not the case here, but it is unclear whether or not this is necessary, if other connection exists.
Two older authorities are of some assistance in this regard. These cases were not before the Arbitrator. They were relied on by the Workcover Authority in Billpat (the employer had no insurance in New South Wales in that case) in support of the proposition, which was of assistance to the employer in that case, that the New South Wales legislation can only apply where both injury and employment are within the state (see paragraph 41 of Kirby P. judgment). The cases are Walkerden Bros v Awdejew (1958) 76 WN (NSW) 176 (‘Walkerden’) and O’Connor v Healey (1967) 69 SR (NSW) 111. As these cases were not raised by the parties I gave them the opportunity to make further submissions in respect of them and I have taken those submissions into account.
Both cases concerned injuries on journeys and the examination of statutory provisions which do not arise in this case. But both also discuss the general principles of territorial jurisdiction. In Walkerden the work concerned was located in New South Wales but the injury occurred in Victoria. It was held, on the basis of Mynott v Barnard, that the worker’s dependants could not bring a case under the New South Wales legislation, because the injury took place out of the state. In O’Connor v Healey both the work and the injury occurred in New South Wales, and the New South Wales legislation was held to apply, even though the contract for employment had been entered into in another state and both worker and employer were resident in that other state. Injury and place of work were the only connectors to New South Wales. The facts are in that respect similar to the facts in this case.
As a matter of principle it is also consistent with the objects of workers compensation legislation that the carrying on of work in a state should attract the operation of the legislation of that state, where injury occurs in the course of that work. In my view both as a matter of principle and in accordance with O’Connor v Healey it is sufficient to establish “a relevant connection” to New South Wales, according to the test applied in Stanley v Gallagher, that the injury occurs in New South Wales and the work, or at least a substantial part of it, is located in New South Wales. The Respondent in its further submissions dated 4 August 2005 concedes that it follows from O’Connor v Healey that injury in New South Wales and employment within this state are sufficient to give the Commission jurisdiction (paragraphs 12-14) but disputes that employment in New South Wales is established in this case. For the reasons set out earlier I do not agree. Accordingly, I find that the New South Wales legislation does apply to the facts of this case and the Commission has jurisdiction.
Other issues
The Respondent also opposed this application on a basis related to section 13 of the 1987 Act. In my view the Arbitrator was quite correct to say this section, which extends the territorial jurisdiction of New South Wales to injuries occurring outside this state in certain circumstances, is inapplicable. As the Arbitrator concluded that the Commission did not have jurisdiction to determine the claim he did not proceed to determine other issues in contest such as the question of a causal link between the January 2000 injury and the incapacity of the Appellant in the claimed periods in 2003 and the amount, if any, of compensation for pain and suffering. As these issues have not been determined at first instance it is not possible to conclude this matter on appeal. For these reasons I will remit the matter to the Arbitrator.
Return of the application to the Arbitrator will also re-enliven the issue of the costs of the original proceedings. In addition to the normal matters, the Appellant sought an order for the costs of responding to the Respondent’s oral submissions at the arbitration, which had not been foreshadowed in its reply or written submissions prior to the arbitration. The costs of the original proceedings should be reconsidered at the conclusion of the next arbitration.
DECISION
The decision of the Arbitrator on jurisdiction and costs is revoked. The application is remitted to the Arbitrator (or another arbitrator if the Arbitrator is not available) for determination in accordance with this decision.
COSTS
As the Appellant has been successful on this appeal his costs should be paid by the Respondent. The costs of the original proceedings are adjourned for determination at the next arbitration.
Robyn Lansdowne
Acting Deputy President 31 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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