Wadley v Ron Finemore Bulk Haulage Pty Ltd (Ruling)

[2013] VSC 102

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT WODONGA

COMMON LAW DIVISION

No. 06186 of 2011

BARRY DESMOND WADLEY	Plaintiff
v
RON FINEMORE BULK HAULAGE PTY LTD	Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Wodonga
DATES OF HEARING:	6-7 March 2013
DATE OF RULING:	8 March 2013
CASE MAY BE CITED AS:	Wadley v Ron Finemore Bulk Haulage Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2013] VSC 102

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TORT – Accident compensation – Choice of law – Worker injured in New South Wales – Entitlement to compensation under s 80 Accident Compensation Act 1985 – Whether employment connected with Victoria – Whether worker ‘usually’ worked in Victoria and, or New South Wales – Whether worker ‘usually’ based in Victoria and, or New South Wales – Employer’s principal place of business in Victoria.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T S Monti SC with Mr M Seelig	Nevin Lenne & Gross
For the Defendant	Mr W R Middleton SC with Mr R H Stanley	Wisewoulds Mahony

HER HONOUR:

1. The plaintiff, Mr Wadley, claims damages from his employer, the defendant (‘Finemore’s’) in relation to injury allegedly suffered in the course of his employment on 26 January 2007. 

1. On 5 February 2013, J Forrest J ruled that the Court should determine as a preliminary question Mr Wadley’s entitlement to compensation under s 80 of the Accident Compensation Act 1985 (‘the Act’). 

Section 80

1. Section 80 is relevantly in these terms:

Entitlement to compensation only if employment connected with Victoria

(1)     There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.

(2)     The fact that a worker is outside this State when the injury happens does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.

(3)     A worker's employment is connected with—

(a)the State in which the worker usually works in that employment; or

(b)if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

(c)if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

(6)     In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer over the preceding 12 months and the intentions of the worker and employer.  However, 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.

(7)     Subject to subsection (6), in determining whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a State or is in a State for the purposes of employment whether or not under the statutory workers compensation scheme of that State the person is regarded as a worker or as working or employed in that State.

1. In accordance with an inter-jurisdictional agreement, s 80 was amended to introduce ‘a hierarchy’, which is uniform in affected States and Territories,[1] and to have ‘certainty of location’[2] where there are two workplaces on either sides of a border

   [1]Victoria, Parliamentary Debates, Legislative Council, 20 November 2003, 1549 (John Lenders).

   [2]Ibid 1550.

Submissions

1. Mr Wadley argues that he is entitled to compensation under s 80 because, before his injury, he ‘usually’ worked, within the meaning of s 80(3)(a), in Victoria, or in that State and in New South Wales, or that he was ‘usually’ based in Victoria, under s 80(3)(b).

1. Finemore’s concedes that Mr Wadley ‘usually’ worked in each of the two States, but maintains that he was ‘usually’ based in Corowa, New South Wales, for the purposes of s 80(3)(b).

1. Finemore’s also concedes that, if a decision as to Mr Wadley’s connection with Victoria or New South Wales were required to be made under sub-s 80(3)(c), its ‘principal place of business in Australia’ for the purposes of that sub-section would be Wodonga, Victoria.

The facts

1. Mr Wadley, Mr Rodney Beer and Mr Alan Finemore gave evidence.  After hearing them, I am satisfied as to the following facts.

1. In July 2006, Finemore’s purchased a bulk haulage business run by Mr Jeff Lewington. The Lewington business had a cartage contract with a pig food producer, QAF,  (which is now known, and I will refer to, as ‘Rivalea’).  Rivalea operated and continues to operate from premises at Corowa in New South Wales.

1. Twelve to 14 of Finemore’s trucks serviced the Rivalea contract.  It would appear that about the same number of Lewington trucks were doing so in 2006 when the Lewington business was acquired by Finemore’s. Normally, each truck had two drivers who worked consecutive shifts. The trucks loaded the pig food at Rivalea’s premises at Corowa and delivered it to Rivalea-owned piggeries around Victoria.

1. Mr Wadley, who then lived in Wodonga and now lives at Katandra, was employed to do the pig food cartage work by the Lewington business in 2002.  Leading up to his accident and in the 12 months immediately preceding it, he worked shifts which commenced either at 2am or 2pm.  He drove to Corowa and obtained instructions for the day’s deliveries from Finemore’s on-site supervisor, Mr Beer.  He spent between 30 minutes and two hours engaged in the process of loading the truck at the start of a shift and the same amount of time re-loading it, at the end.

1. Mr Beer prepared written load sheets, working with Rivalea to fulfil its orders. He worked out of an office at the Rivalea Corowa premises and was there for some 12 hours a day.  He provided his own chair and food and drink preparation equipment, such as a microwave and sandwich maker.  He used telephone and internet services provided by Rivalea, as well as a desk and computer supplied by Finemore’s. After shifts, drivers employed by Finemore’s provided Mr Beer with their log books, trip sheets and other forms, which he transmitted electronically, and physically, as required, to Finemore’s in Wodonga. Finemore’s used that paperwork to pay drivers and for analysis, compliance, reporting, record-keeping and other purposes.

1. The Finemore’s site at Wodonga was some 20 acres in size and its fleet comprised in the order of 150 trucks. There was a service and maintenance facility at its premises where services, maintenance and repairs of trucks were carried out. Finemore’s’ trucks covered somewhere in the vicinity of 8,000-9,000 km per week. The 10,000 and 20,000 km minor services of the trucks operating from Corowa were carried out locally and the major services (100,000 km) and major repairs on those trucks were performed at Wodonga. Finemore’s’ trucks from Corowa would also go to the Wodonga premises for minor repairs that were not able to be carried out locally for some reason.   Mr Wadley would, on occasion, drive his truck to Wodonga for such work.  He did so approximately fortnightly.

1. There were a few occasions when Rivalea would direct Finemore’s to pick up product at St Arnaud if it could not supply all was needed at the Corowa depot for distribution in Victoria.

1. At the Rivalea Corowa premises, there were toilet, shower and lunch room facilities available for use by Finemore’s’ drivers and a facility for them to park their cars. Mr Wadley had, however, been told that he could not use the shower or the ‘smoko’ room by someone at QAF early on.  He ate his meals in his truck and slept in his truck for short periods during his shift. He was paid directly into his bank account by Finemore’s from its head office administration offices at Wodonga. If he had problems, he called Mr Alan Finemore, the Chief Operating Officer of Ron Finemore Transport, who generally worked out of Wodonga too.

1. Finemore’s’ letterhead lists its head office at Wodonga and depots or offices at Brisbane, Orange and Wacol in Queensland. There is no reference to Corowa.  The business employs several hundred drivers from its various bases.

1. Corowa is the only centre at which Finemore’s transfers from a site where trucks are filled to be emptied elsewhere and return for refilling.  There are drivers who are based at the Wodonga centre, working for the Finemore’s general business and its tanker business. Most of them start their shifts at Wodonga and travel to Melbourne and back, carrying loads. From Wagga, drivers go to either Melbourne or Sydney and return to Wagga which is a driver changeover point.  Only occasionally, drivers from the Finemore’s Wodonga facility go to Corowa to do the work performed by Mr Wadley. Like most driver jobs, it is specialised work which requires training.

1. The truck Mr Wadley drove weighed 68 tonnes fully loaded, and was 4 tonnes overweight under New South Wales regulations. Finemore’s had a permit which allowed him to drive approximately 1.6 km, straight to the border and into Victoria, where it complied with the weight requirements.

Conclusion – sub-s 80(3)(a)

1. Mr Wadley should be regarded as having ‘usually’ worked in both Victoria and New South Wales, for the purposes of sub-s 80(3)(a).

1. The meanings of the adjective ‘usual’ and the adverb, ‘usually’, are described (in part) in the Oxford English Dictionary as follows:

Usually adv… 1. In a usual wonted manner; according to customary, established or frequent usage; commonly, customarily , ordinarily; as a rule. …

2. In a regular manner.

Usual …adj… 1. That is in ordinarily use or observance; … commonly observed or practised; current, prevalent. …

3. Ordinarily used; constantly or customarily employed; in common use; ordinary, customary …

b. of persons: commonly employed … .

4. That ordinarily happens or occurs or is to be found; … wonted …

b. Customary on the part of a person or persons to do something …

c. Common or habitual to a person or thing.[3]

[3]Oxford English Dictionary (Oxford University Press, 2nd ed, 1989)  vol 19 360-361.

1. The Macquarie Dictionary provides this definition of ‘usual’:

Usual … (adjective) 1. Habitual or customary: his usual skill.

2. Such as is commonly met with or observed in experience; ordinary: the usual January weather.

3. In common use; common: say the usual things…

4. That which is usual or habitual. – phrase

5. As usual (as is or was) usual; in the customary or ordinary manner: he will come as usual.[4]

[4]Macquarie Dictionary (The Macquarie Library Pty Ltd, 4th ed, 2005) 1552.

1. Whilst the matter is not the subject of binding authority, consistently with those dictionary definitions, the expression ‘usually works’ in comparable provisions in other States and Territories has been interpreted on the basis that ‘usually’ means ‘customarily’ ‘frequently’ or ‘regularly’, and does not involve a quantitative test.[5] Indeed, sub-s 80(3)(b) appears to contemplate that there might be two States in which the worker ‘usually works’ within the meaning of sub-s (a). If the comparison were quantitative, it is difficult to see how two States could each qualify.

   [5]Hanns v Greyhound Pioneer Australia Ltd (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 8 February 2006); Tamboritha Consultations Pty Ltd v Knight [2008] WADC 78.

1. I have had regard to Mr Wadley’s work history with Finemore’s in the 12 months leading up to his injury on 26 January 2007, as well as to his intentions and those of Finemore’s, as required by sub-s 80(6). I have also taken into account the period during which he worked in Victoria and New South Wales for the purposes of his employment, as required under sub-s 80(7).

1. He should be regarded as  having ‘usually’ worked in each State, when;

·     he commenced and generally finished work at Corowa;

·     he obtained instructions from Finemore’s’ supervisor at Corowa;

·     he spent between one and four hours of each shift loading and reloading his truck at Corowa;

·     he delivered his completed paperwork to Corowa to comply with Finemore’s’ requirements and to allow his remuneration to be calculated;

·     he went to the Finemore’s head office in Wodonga to apply for his job, for training and to have his truck serviced, maintained and repaired on a relatively frequent basis, as well to consult his manager, Mr Alan Finemore, in relation to his job; and

·     he spent many hours driving, sleeping and eating in Victoria during each 12-hour shift, when working as Finemore’s’ employee and carrying out its obligations under the Rivalea contract.

1. As I would conclude that he ‘usually’ worked in each of Victoria and New South Wales under sub-s 80(3)(a) of the Act, I must turn to sub-s 80(3)(b), in order to decide whether his employment has the required connection with the State of Victoria for the purposes of his entitlement to compensation.

Conclusion – sub-s 80(3)(b)

1. Interpreting ‘usually’ in the same way, I am again unable to identify one State for the purposes of sub-s 80(3)(b).

1. Counsel for Finemore’s referred to Avon Products Pty Ltd v Magrit Falls[6], where Gray P, Penfold and Marshall JJ of the Court of Appeal of the ACT considered the case of the plaintiff, who was a sales manager for Avon, responsible for agents within the ACT. She had spent a significant part of her time record-keeping and doing other administrative work, mainly at her home in New South Wales. Their Honours said this in relation to her ‘usual’ base under the ACT equivalent of s 80(3)(b)[7],  (which was in relevantly identical terms):

The evidence before the Court shows no particular usual base. The fact that Ms Falls did some work from home does not necessarily constitute that place as her base for the purposes of her employment. Something more than a convenient place for part of her duties to be carried out is required before it can be said that her residence was her base in an employment sense. In the same way it might be said that while working in her sales district in the ACT her vehicle was her base. What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate. Accordingly s 36B(3)(b) does not appear to answer the question of what is the State or Territory of connection in the case of Ms Falls.[8]

[6][2010] ACTCA 21 (‘Avon’).

[7]Section 36B(3)(b), Workers Compensation Act 1951 (ACT).

[8]Avon [32] (Gray P, Penfold and Marshall JJ).

1. Finemore’s contends that just such a place was provided for Mr Wadley at the Corowa premises of Rivalea in New South Wales.

1. Counsel for Mr Wadley respond that he was ‘usually’ based in Victoria because he had bases in that State in the relevant sense.  He was based at the Finemore’s Wodonga head office and based in his truck, as well. Given the ‘long-haul’ nature of his lengthy hours of driving around Victoria ‘for the purposes of his employment’,  the truck, which he used as eating and sleeping quarters and office, whilst driving, was an additional base from which he operated.

1. Counsel for Finemore’s resist this characterisation of Mr Wadley’s truck. They cite the decision of Commissioner Herron in Tamboritha Consultants Pty Ltd v Knight[9]. There, the Commissioner took the view that considerations relevant to the issue of where a worker was ‘usually’ based included matters listed in s 53AA(5) of the Work Health Act (NT), being:

1.The work location specified in a worker's contract of employment.

2.The location the worker routinely attends during the term of employment to receive directions or collect materials or equipment in relation to the work.

3.The location the worker reports to in relation to the work.

4.The location from which the worker's wages are paid. [10]

[9][2008] WADC 78.

[10]Ibid [24].

1. Counsel argue that the Court should not be persuaded by evidence relating to matters 1 and 4 of this non-exclusive list, that Mr Wadley was ‘usually’ based in Victoria as he contents.

1. In my opinion, the evidence relating to relevant matters, including the four suggested factors  and the mandatory consideration under sub-s 80(7), as to the time Mr Wadley spends in a State while working, indicates that there is no one State in which he can be said to have been ‘usually’ based.

1. He was, in my view, ‘usually’ based in Corowa, at the Rivalea depot where he attended for the reasons I have described. He was also ‘usually’ based at Wodonga, because he had been employed and trained there, reported there (through Mr Beer at Corowa), and obtained resolution for any problems from his senior manager who was located there and was paid from there. Mr Wadley was also ‘usually’ based in Victoria, in the sense that his truck provided him with the mobile facilities required for the performance of his work, given its particular nature.

1. As he ‘usually’ worked and was ‘usually’ based in both Victoria and New South Wales, Mr Wadley’s entitlement to compensation falls to be determined under sub-s 80(3)(c).  As Finemore’s has conceded that its premises at Wodonga were its principal place of business, I am satisfied that the requisite connection is established under that sub-section.