Westrupp v BIS Industries Ltd

Case [2015] FCAFC 173

FEDERAL COURT OF AUSTRALIA

Westrupp v BIS Industries Limited [2015] FCAFC 173

Citation: Westrupp v BIS Industries Limited [2015] FCAFC 173
Appeal from: Westrupp and BIS Industries Ltd [2015] AATA 298
Parties: EDWARD BABINGTON WESTRUPP v BIS INDUSTRIES LIMITED and COMCARE
File number: WAD 257 of 2015
Judges: BUCHANAN, MCKERRACHER AND KATZMANN JJ
Date of judgment: 4 December 2015
Catchwords:

WORKERS’ COMPENSATION – applicant employee of first respondent – applicant employed as fly in/fly out worker – applicant attended tavern in the evening of shift change (after day shift, before night shift) – applicant was physically assaulted by employee of first respondent – applicant incapacitated – applicant could not attend work – applicant applied for workers’ compensation – first respondent refused workers’ compensation – first respondent found applicant not in the course of employment when injured – independent third party affirmed decision to refuse workers’ compensation – Administrative Appeals Tribunal affirmed refusal of workers’ compensation – AAT held Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 not applicable – AAT applied Comcare v PVYW (2013) 250 CLR 246 – findings of fact by AAT required Hatzimanolis be applied –AAT misapplied legal principles – applicant only in mining camp as an incident of employment – applicant would be expected to use facilities at mining camp – AAT decision set aside –declaration made that applicant’s claim for compensation satisfied section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

PRACTICE AND PROCEDURE – notice of appeal deficient – Full Court able to see the AAT’s construction error and misapplication of the statutory concept of injury, May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330, [174]

PRACTICE AND PROCEDURE – Comcare applied to become a party to the proceedings a week before Full Court hearing through Safety, Rehabilitation and Compensation Act 1988 (Cth), s 108C(8)(b) – Comcare’s submissions did not address whether the AAT made an error of law – Comcare’s submissions did not address whether a question of law arose for consideration – Comcare sought an advisory opinion from the Full Court – Comcare’s submissions not to be accepted or acted on
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 43, 43(1), 44, 44(1), 44(3), 44(3)(c), 44(7), 44(8)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5A(1)(b), 6, 6(1)(a), 6(1)(b), 14, 14(3), 67, 67(1A)(b), 67(1), 67(8), 89A, 108B, 108C(8)(b)
Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; (1990) 12 AAR 515
Comcare v Mather (1995) 56 FCR 456
Comcare v McCallum (1994) 49 FCR 199
Comcare v PVYW (2012) 207 FCR 150
Comcare v PVYW (2013) 250 CLR 246
Copperart Pty Ltd v Commissioner of Taxation (1993) 26 ATR 327; (1993) 30 ALD 377
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551
Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410
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AGLC
Westrupp v BIS Industries Ltd [2015] FCAFC 173
Case
[2015] FCAFC 173
Decision Date

CaseChat Overview and Summary

The case of Westrupp v BIS Industries Ltd involved the applicant, Mr Westrupp, who was an employee of the first respondent, BIS Industries Ltd. Mr Westrupp was a fly-in/fly-out worker who was assaulted while in a tavern in Leinster, a town developed for mining operations. The applicant sought workers’ compensation for his injuries but was denied by the first respondent, and the decision was upheld by the Administrative Appeals Tribunal (AAT). The central issue before the court was whether Mr Westrupp was in the course of his employment when he was assaulted. The court found that the AAT had erred in its application of the legal principles, leading to the refusal of the applicant's compensation claim. The court set aside the AAT's decision and declared that the applicant's claim for compensation satisfied section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The legal issues the court had to decide included whether the AAT had provided sufficient reasons for its decision, whether it had applied the correct legal test, and if it had correctly interpreted the relevant statutory criteria. The court found that while the appeal raised questions of law, the notice of appeal was deficient in precisely stating those questions. Nevertheless, the court was able to review the AAT's construction error and misapplication of the statutory concept of injury, relying on the case of May v Military Rehabilitation and Compensation Commission. The court also noted that Comcare, which applied to become a party to the proceedings, did not address the errors made by the AAT, and thus its submissions were not to be accepted or acted upon.

In its reasoning, the court concluded that Mr Westrupp was only in the mining camp as an incident of his employment and that he would be expected to use the facilities at the mining camp. The court found that the AAT had misapplied the legal principles by not applying the decision in Hatzimanolis v ANI Corporation Ltd to the facts of the case. The court held that the AAT's findings of fact required the application of Hatzimanolis, and thus the AAT's decision was set aside. The court further ordered that the first respondent pay the applicant's costs of the appeal and the proceedings before the AAT.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal (“the AAT”) made on 5 May 2015 (Westrupp and BIS Industries Ltd [2015] AATA 298) is set aside.

THE COURT DECLARES THAT:

2. On the facts found by the AAT and those not in dispute, the applicant’s claim for compensation satisfied section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

THE COURT ORDERS FURTHER THAT:

3. The first respondent pay the applicant’s costs of the appeal and the proceedings before the AAT.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It is a vexed question whether an allegation that there has been a failure to provide adequate reasons raises a question of law (see the discussion in Millar v Commissioner of Taxation [2015] FCA 1104 at [74]-[78]). But the task of determining the content of the duty to give reasons and of deciding whether the duty has been discharged will involve questions of law. And it is a question of law to ask whether it was open to the Tribunal to draw a particular inference from the agreed facts or the facts as found (Hope v Bathurst City Council (1980) 144 CLR 1 (“Hope”) at 8-9; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356). Whether the Tribunal failed to apply the correct legal test is indisputably a question of law (Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410 at [13]). It is also a question of law to ask whether, on the facts found, the statutory criteria were satisfied (Hope at 7; Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 at [51]).Facts found by the AAT or not in dispute Mr Westrupp was 61 years of age at the time of his injury. He resided in New Zealand. He was employed by the first respondent pursuant to a contract whereby he attended for shift work in Leinster for two-week periods, followed by one week’s respite. He was a “fly in/fly out” worker, although sometimes he drove to other parts of Western Australia rather than flying home to New Zealand. Leinster was developed and built by a mining company “as a result of a State Agreement to provide accommodation and other facilities for mining operations located in the vicinity of the town” (AAT decision at [31]). (The mining company that now operates in Leinster is BHP Billiton). The AAT said (at [32]-[33]): 32.Leinster is described as a closed town. … Only workers employed at or associated with the mining operations or in businesses that support the operations or the town can reside in Leinster. Tourists can stay in the caravan park or lodge and use facilities in the Leinster provided they pass through and do not remain permanently in the town. 33.Accommodation is either residential occupying a house under a Tenancy Agreement or fly in/fly out occupying a Single Persons Quarter (‘SPQ’) room. The first respondent was a contractor to BHP Billiton. Its employees were accommodated in Leinster, and were subject to the “Leinster Township and SPQ Village Rules”. A document on the first respondent’s website, which was in evidence before the AAT, provided the following information about the living and recreation arrangements for employees at Leinster: AccommodationŸ … Ÿ Camp rooms have en-suite bathrooms and TVsŸ Leinster has a tavern, gym, swimming pool, basketball, squash and tennis courtsŸ … When in Leinster, Mr Westrupp had accommodation in the Single Persons Quarters (“SPQ”). The SPQ was not far from two messes run by Spotless Catering under contract to BHP Billiton. Mr Westrupp ate breakfast and dinner at the dry mess and also took what he wanted for lunch. The dry mess was about 60 metres from his accommodation.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appeal now before this Court arises under s 44 of the AAT Act. Section 44(1) of the AAT Act provides: 44Appeals to Federal Court of Australia from decisions of the TribunalAppeal on question of law(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. (Notes omitted.) The jurisdiction of the Court to hear and determine such appeals is conferred by s 44(3). When, as in the present case, the Tribunal’s decision was given by a member who was a Judge, that jurisdiction must be exercised by a Full Court (AAT Act, s 44(3)(c)). The “questions of law” asserted to arise for consideration in the present case may be summarised as follows: −failing to provide sufficient reasons in various respects; −failing to make particular findings; −failing to apply the correct legal test; −“overlooking” particular evidence;−misunderstanding the effect of other evidence. No objection was raised to the competency of the appeal and there is no doubt that the appeal raises questions of law in some respects. That said, however, there are a number of deficiencies with the notice of appeal. A mere allegation that the Tribunal erred in law in making (or not making) a particular finding is not to state a question of law (Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; (1990) 12 AAR 515 at 524, approved by the Full Court in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 322 ALR 254 (“Haritos”) at [92]). Most of the asserted questions appear to do no more than that. It is not always easy to identify a question of law, yet the Court has repeatedly stressed the importance of stating the question or questions of law with precision, most recently in Haritos. The existence of a question of law is not just “a qualifying condition to ground the appeal”, it is the very subject matter of the appeal (TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 198 at 6; (1988) 82 ALR 175 at 178). An appeal “on a question of law” is an appeal limited to a question of law. For this reason, Hill J said in Copperart Pty Ltd v Commissioner of Taxation (1993) 26 ATR 327; 30 ALD 377 that the Court cannot find the facts for itself. That statement is subject, however, to the terms of s 44(7) and (8), which were inserted into the AAT Act in 2005, which permit the Court to find facts for itself in certain circumstances. It is a vexed question whether an allegation that there has been a failure to provide adequate reasons raises a question of law (see the discussion in Millar v Commissioner of Taxation [2015] FCA 1104 at [74]-[78]). But the task of determining the content of the duty to give reasons and of deciding whether the duty has been discharged will involve questions of law. And it is a question of law to ask whether it was open to the Tribunal to draw a particular inference from the agreed facts or the facts as found (Hope v Bathurst City Council (1980) 144 CLR 1 (“Hope”) at 8-9; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356). Whether the Tribunal failed to apply the correct legal test is indisputably a question of law (Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410 at [13]). It is also a question of law to ask whether, on the facts found, the statutory criteria were satisfied (Hope at 7; Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 at [51]).Facts found by the AAT or not in dispute

Ratio Decidendi

Legal Principle Established

The first respondent’s code of behaviour also applied to Mr Westrupp while he was in Leinster: CODE OF BEHAVIOUR FIFO / DIDO OPERATIONS… This Code applies from the time an employee reports for duties, on a ‘fly in fly out’ or ‘drive in drive out’ site, until they have returned from their swing. This includes transit where it is Company or Customer provided transport, for example airport transit, flights, and bus transport. During this period the employee is representing Bis Industries and their behaviour is a direct reflection on the Company. Our priority is about employee safety and zero harm. As such, this code applies to Bis Industries employees at all times, whether working or not on Company and Customer premises. Mr Westrupp’s shift arrangements at the time of his injury were such that on the first week of his two-week duty period he worked day shift and then (commencing about 24 hours after a day shift) he worked night shift for a week. The incident described hereunder occurred on the evening of the final day shift, in the middle of his two-week duty period. That evening Mr Westrupp went to the tavern with a friend. There is no suggestion he became intoxicated. The AAT found that he did not (at [17]). As Mr Westrupp and his companion were preparing to leave, and were standing outside the tavern, Mr Westrupp recognised a woman he had known since 2006 who was seated with others. The woman stood and hugged him (apparently indicating she was leaving Leinster, or was unlikely to see him again). One man seated at the same table spoke to Mr Westrupp aggressively, but Mr Westrupp walked away. A short time later, outside the entrance to the tavern, while Mr Westrupp was in conversation with his companion and a BHP Billiton employee, the man who had spoken aggressively to him approached him and assaulted him. The assailant was another employee of the first respondent. The AAT described those events as follows (at [22]-[24]): 22.Outside the Tavern entrance the applicant stated that he had been in a conversation with Nathan, and a BHP employee by the name of Rangi. He noticed Mr Jones approaching them in an ‘aggressive manner, fists clenched by his side’. 23.Mr Jones then grabbed the applicant by the T-shirt with both hands pushing and pulling him, ripping his T-shirt. The applicant had both hands in his pockets. Mr Jones then grabbed the applicant around the throat with both hands and started choking him. As the applicant could not breathe, he grabbed Mr Jones’s forearms and they both fell to the ground. As a result, Mr Jones was on top of the applicant and was swinging punches to the applicant’s head. The applicant was trying to protect his head with his left arm, as he could not move his right arm. Mr Jones was finally pulled off by a BHP employee. 24.The applicant and others moved to the car park area where Mr Jones again attempted to punch the applicant in the head and chest area but missed. He was pushed away by Nathan and told to go home.