WorkCover Corporation of SA (Black Diamond Charcoal) v Efthymios Spyridakos No. Scgrg-96-2273 Judgment No. 6167 Number of Pages 28 Workers' Compensation
[1997] SASC 6167
•30 May 1997
IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA
MATHESON, OLSSON AND WILLIAMS JJ
Workers' compensation - claim by widow upheld by review officer but set aside by Appeal Tribunal - deceased killed in South Australia whilst returning home from New South Wales where he had been working for some days - issues as to whether SA Act or NSW Act applied - consideration of meaning of the words "employment outside the state (not being employment in respect of which the worker is protected by a corresponding law)" and the words "regularly travels" in s6(1)(e) of SA Act, and of the words "and there employs a worker" in s13(1)(a) of NSW Act - appeal allowed and decision of review officer restored. Patman v Fletcher's Fotographics Pty Ltd and Anor (1984) 6 IR 471; Helmers v Coppins (1961) 106 CLR 156; Starr v Douglas & Ors (1994) 35 NSWLR 133; Hall v Estate of J R Hughes [1948] WCR 97; Forbes v Beveridge [1959] WCR 228; Walker v Wilson (1991) 172 CLR 195, applied. Francese v City of Adelaide
(1989) 51 SASR 522, distinguished. Stevens v Head (1992) 176 CLR 433, considered.
ADELAIDE, 14 April 1997 (hearing), 30 May 1997 (decision)
#DATE 30:5:1997
#ADD 3:6:1997
Appellant:
Counsel: Mr G A Hackett-Jones QC with him Mr K F Gilchrist
Solicitors: Thomsons
Respondent:
Counsel: Mr A S Martin
Solicitors: Johnston Witherson
Order: appeal allowed.
MATHESON J
1. The respondent is the widow of Efthymios ("Tim") Spyridakos. He was killed in a motor vehicle accident on 22 May 1991 near Taplin in the course of a 120 km journey from the site of the Black Diamond Charcoal business on Belvedere Station in New South Wales, where the respondent alleged the deceased had been working, to his home in Loxton. The respondent's claim for compensation was rejected by WorkCover Corporation by letter dated 23 November 1993 on the grounds that the deceased "was not a worker as defined in Section 3(1) of the Workers Rehabilitation & Compensation Act, 1986, as amended, in that he was not employed by Black Diamond Charcoal Ltd at the time of his death in that there was no contract of service between Mr Spyridakis[sic] and Black Diamond Charcoal and no wages were paid to Mr Spyridakis[sic] ...and therefore a contract or service did not exist between him and Black Diamond Charcoal Pty Ltd ...", and because "Section 6(1) of the Workers Rehabilitation & Compensation Act, 1986, as amended, does not apply to Mr Spyridakis in that employment if applicable would be predominantly outside South Australia ...".
2. The respondent successfully sought a review of that determination. In the course of his understandably lengthy reasons, the review officer said, as was the fact, that "the crucial circumstances of the case are unusually complex". He continued:
"The widow's claim at its highest is made on the basis that Efthymios Spyridakos had entered into a verbal contract to perform work at a site in New South Wales. On the last day of an initial two week period of work, whilst returning to Loxton, the accident occurred. His intention was to return to the site to perform further work after he spent two or three days in Loxton.
On the other hand WorkCover's case at its highest, was that Mr Spyridakos, being an old family friend of the father of Hara Stassinopoulos, was at the work site out of friendship, interest in the business, and more importantly, out of interest in hunting. WorkCover concedes that there is some evidence in relation to Mr Spyridakos performing some work whilst he was there but it is submitted that this work was performed as a volunteer and that at no stage was there any intention to create a contractual relationship nor was there any agreement to pay or give valuable consideration in return for the voluntary services provided by Mr Spyridakos. There was also an element of evaluating him as a possible future employee.
Due to the unfortunate death of Mr Spyridakos there is of necessity a paucity of direct evidence as to the making of and the terms of the alleged oral contract of employment. The terms of that contract would have to be implied from statements made by the parties to the alleged contract and by their conduct. Added difficulties are apparent casualness and informality surrounding most of the circumstances of the running of the business; the lapse of time between the occurrence of the relevant events and the giving of evidence; that the family of the deceased was very close to the family of the alleged employer; and that there is a significant financial incentive for members of both families to give self serving evidence. The financial benefit to the widow's family is obvious. The relevant financial factor from Stassinopoulos' point of view is that there was no policy of workers compensation insurance in existence at the time of the accident either with WorkCover in South Australia or with any insurer in New South Wales. Accordingly there is a substantial risk, of, at least a sound basis for the fear of being personally liable for any compensation benefits that would be payable to the widow of the deceased upon a claim being accepted in either New South Wales or South Australia. There are in excess of 20 issues of importance that involve conflicts in the evidence given by the various witnesses." 3. The review officer made at least two important findings. He said:
"I have no hesitation in finding that Tom Stassinopoulos [the father of Hara Stassinopoulos] had actual authority from Hara Stassinopoulos to employ casual labourers and to employ Tim Spyridakos. In making this finding, it is implicit that I find the business Black Diamond Charcoal to be owned by Hara Stassinopoulos, one of the registered proprietors of the business name. I add that Hara said that the other registered owner of the name is his uncle Hara senior but he has had no role in the management or ownership of the business, at least after it moved to Belvedere." 4. Later the review officer said:
"I have concluded that Tim Spyridakos was engaged by Tom Stassinopoulos to work for Hara Stassinopoulos in Hara's charcoal manufacturing business. At the time of the accident Tim Spyridakos was in the course of a journey from his place of employment to his home in Loxton. I have also found that Tim Spyridakos was planning to return to Belvedere on the following Friday and this was with the knowledge and approval of Tom Stassinopoulos in order to perform more paid work." 5. It is convenient here to quote so much of the relevant provisions of the South Australian Workers Compensation Act 1986 ("the SA Act"), as are material. They include:
"3.(1) In this Act, unless the contrary intention appears-
'contract of service' means-
(a) a contract under which one person (the worker) is employed by another (the employer);
(b) - (d) ...
'corresponding law' means a law-
(a) of the Commonwealth;
(b) of a State (other than this State) or a Territory of the Commonwealth; or
(c) of another country,
that provides for compensation for disabilities arising from employment;
'employer' means-
(a) a person by whom a worker is employed under a contract of service, or for whom work is done by a worker under a contract of service;
(b) - (c) ...
and includes a former employer and the legal personal representative of a deceased employer;
'employment' includes-
(a) work done under a contract of service
(b) - (d) ...
'worker' means-
(a) a person by whom work is done under a contract of service (whether or not as an employee);
(b) - (c) ....
and includes a former worker and the legal personnel representative of a deceased worker."
"6.(1) Subject to this section, this Act applies in relation to -
(a) employment in the State;
(b) - (d) ...
(e) employment outside the State (not being employment in respect of which the worker is protected by a corresponding law) -
(i) to which a worker regularly travels from a port or place in the State; or
(ii) ..."
"30.(1) Subject to this Act, a disability is compensable if it arises from employment.
(2) A disability arises from employment if -
(a) in the case of a disability ... it arises out of or in the course of employment; or
(b) ...
(3) ... the employment of a worker includes -
(a) a journey between the worker's residence and place of employment (whether to or from the place of employment);
(b) - (e) ...
(4) - (7) ..." 6. The review officer in his reasons focused on s6(1)(e)(i) (he erroneously referred to (ii)). He then examined the New South Workers Compensation Act 1987 (the "NSW Act"). For reasons that I need not further discuss, the review officer held that the respondent would have a claim for a larger amount of compensation under the SA Act than under the NSW Act, and therefore he held that the deceased was not "protected by a corresponding law", as required by s6(1)(e)(i). He concluded that the deceased was engaged in a compensable journey at the time of his death, and that the respondent was entitled to the benefit of s44(1) of the SA Act, and to receive a lump sum of compensation in the sum of $148,572.50. He reserved for further consideration the question of the degree of dependency (if any) of the widow upon the deceased. In the course of reaching his findings of fact, the review officer took into account a number of written statements and evidence given on oath, some of which would not normally be admissible. However, in so doing he was acting pursuant to s88(1) of the SA Act which provides:
"88.(1) In proceedings under this Act, a review authority -
(a) shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms;
and
(b) is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks fit." 7. The Corporation appealed to the Workers Compensation Appeal Tribunal constituted by his Honour Deputy President R E Hardy. He said:
" ... it is my view that conclusions about whether or not the N.S.W. Act constituted a corresponding law and whether it afforded protection for the purposes of Section 6(1)(e) were matters that necessarily involved a consideration of the application of the N.S.W. Act to the circumstances of this case. Even though the N.S.W. Act was enacted by the legislature of another state of the Commonwealth, it is nonetheless a 'foreign' Act and the principles regarding the proof of the Act and its application are the same as for any 'foreign law'. Generally speaking, those matters require formal proof and if there is any doubt about how a foreign law is to be applied to particular circumstances, it is appropriate for the trier of fact to receive appropriate expert evidence.
This was not the course that was adopted in the review. The parties did not lead any expert evidence as to the application of the N.S.W. Act. Rather, it seems, that the Review Officer took it upon himself to determine how the N.S.W. Act would apply. The Review Officer did not disclose, in his reasons for decision, the basis upon which he did so. Perhaps he relied upon Section 88(1)(b) of the Act. That provision permits a Review Officer to 'inform [himself] on any matter in such manner as [he] thinks fit'. Perhaps, alternatively, he relied upon Section 63 of the Evidence Act 1929. That provision provides:-
'Printed books purporting to contain statutes, ordinances or other written laws in force in any country, although not purporting to have been printed or published by authority, and books purporting to contain reports of decisions of Courts or Judges in such country, and text books treating of such laws of such country, may be referred to by all Courts for the purpose of ascertaining the laws in force in such country; but such Courts shall not be bound to accept or act on the statements in any such books as evidence of such laws.'
Both of these provisions, might provide a basis for a review authority departing from the general principle regarding the receipt of expert evidence about the applicability of a foreign law. It seems to me, however that such a departure should only be undertaken with great caution, particularly 'on a question of fact or opinion vital to the issue and by no means free from controversy' see Cavanett v. Chambers (1968) S.A.S.R. 97 at 102 per Bray C.J..
I pause to note that on the basis of the findings of the Review Officer concerning the existence of a contract of employment, it was reasonable to infer that the deceased would have regularly travelled to Belvedere from his residence in this State which, as a place from which a regular departure was to occur constituted a 'part or place in the State' within the meaning of Section 6(1)(e)(i).
I have been greatly troubled as to how the N.S.W. Act should apply to the circumstances of this case. So much so, that I took the unusual step of calling the parties back before me to indicate to them what my tentative views were regarding the fate of the case and indicating my concerns regarding the making of findings of facts as to the applicability of the N.S.W. Act in a vacuum. I thought the safest course was for the widow to prosecute a claim under the N.S.W. Act on the basis that a determination by the appropriate authorities in New South Wales regarding the fate of that claim would provide the best basis upon which I could make a finding about the widow's entitlements. The widow declined to act upon that suggestion. It seems to me therefore that the vacuum still exists and that I am unable to decide the matter until I know or am able to find that the widow's substantial entitlements to compensation are including what the nature of that compensation might be. It seems to me for instance that should it be that the widow was entitled to no more than funeral expenses, I would be inclined to conclude that she was not 'protected' by N.S.W. law.
Ultimately I have come to the conclusion that the determination of the applicability of the N.S.W. Act was and is such a controversial issue and is so vital to the resolution of this case that notwithstanding the discretion that Section 88(1)(b) of the Act and perhaps Section 63 of the Evidence Act1929 may provide, it was nonetheless wrong in the circumstance of this case for the Review Officer to make concluded findings on that issue without the benefit of expert opinion evidence.
That being the case, the appeal must be allowed. As the Review Officer's appointment has since lapsed, remitting the matter to him, is no longer an option. The matter will therefore have to be remitted back to another Review Officer to determine the widow's claim on its merits. That being so, I do not think that another Review Officer hearing and determining this matter should necessarily be constrained by the findings made by the Review Officer. It therefore would, in my opinion, be inappropriate for me to deal with the remaining ground of appeal. To what extent, if any, the evidence and findings made in the earlier review process should be applied or taken into account in the subsequent review hearing will have to be a matter for the Review Officer conducting that hearing to determine." 8. From the Appeal Tribunal's decision, the Corporation has now appealed, with leave, to this Court. On the appeal, counsel for the respondent made two concessions, first, that the review officer was wrong to consider the alleged inferiority of benefits under the NSW Act as relevant to the question of the applicability of the SA Act, and second, that the appeal tribunal was wrong to treat New South Wales law as foreign law of which proof needed to be provided (see s118 of the Commonwealth Constitution; Stevens v Head (1992) 176 CLR 433 per Deane J at 460 and s35 of the Evidence Act (1929) (SA)).
9. Before considering the argument on appeal that the deceased's employment was "protected by a corresponding law", namely the NSW Act, it is necessary to look at the relevant provisions of that Act. The word "worker" is defined in s3(1) as follows: "'worker' means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, or is oral or in writing ..." 10. Sections 9 10 and 13, so far as material, provide:
"9.(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment.
10.(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(lA) - (2) ...
(3) The journeys to which this section applies are as follows:
(a) - (d) ...
(e) a journey between any camp or place:
(i) where the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to reside temporarily; or
(ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker's employment and the worker's place of abode when not so residing;
(f) - (g) ...
(4) - (6) ..."
"13.(1) If:
(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker; and
(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,
the injury is an injury to which this Act applies, and compensation is payable accordingly.
(2) - (3) ..." 11. Mr Hackett Jones QC, counsel for the appellant, argued that it was not possible for the respondent to rely on s30(3) of the SA Act. He argued that employment in s6 means employment as defined in s3 and does not include any of the extensions contained in s30. I do not agree with this submission. I do not see why the word "employment" in s6(1)(a) should not include the extensions provided for in s30(3)(a), and if that is correct the word must surely have the same meaning in s6(1)(e). I also note that the word "includes", rather than the word "means", is used in the definition in s3 of "employment". Finally, I agree with the submission of counsel for the respondent that the argument overlooks the fact that s30 is the central provision of the Act. To use the language of Priestley JA in Patman v Fletcher's Fotographics Pty Ltd and Anor (1984) 6 IR 471 at p474, s30 contains the "leading idea" of the Act.
12. The next question involves the construction of s13(1)(a) of the NSW Act, and in particular the words "and there employs a worker". Counsel for the respondent argued that on the findings of the review officer the deceased was employed in South Australia. The review officer did not expressly so find, but I consider such a finding is implicit. He then relied on Helmers v Coppins
(1961) 106 CLR 156 especially per Owen J at 164, and on Starr v Douglas & Ors (1994) 35 NSWLR 133 where Gleeson CJ said at p134:
"It is settled law that the reference in s13(1) of the Workers Compensation 1987 to employing a worker in New South Wales is a reference to the place where the worker is engaged, not to the place where the work is performed: Helmers v Coppins (1961) 106 CLR 156." 13. I agree with the argument of counsel for the respondent.
14. Finally, it is necessary to consider the words in s6(1)(e)(i) of the SA Act "to which a worker regularly travels from a port or place in this state ...". Counsel for the appellant argued that the presence of the word "regularly" was a fatal stumbling block for the respondent as the accident happened during the first time that the deceased had travelled to and from Belvedere Station. He submitted that having regard to its present tense and indicative mood the words "regularly travels" required that a regular pattern had been established at the time when the disability/death occurred. He did not dispute that the deceased's house in Loxton was a "port or place in this state".
15. As far as I know the word "regularly" does not appear anywhere else in the SA Act. Section 4 of the Act deals with "average weekly earnings". Subsection(8) provides:
"For the purpose of determining the average weekly earnings of a worker ... any prescribed allowances shall be disregarded." 16. "Prescribed allowance" used to be defined in s3 as meaning:
"Any amount received by the worker from an employer -
(a) - (b) ...
(c) by way of overtime, other than amounts paid in respect of overtime worked in accordance with a regular and established pattern." 17. The words I have emphasised were discussed in Francese v City of Adelaide (1989) 51 SASR
522, to which Mr Hackett-Jones referred. At pp526-527, King CJ said:
"The objective of the provisions appears to be to provide to the worker during disability amounts by way of compensation equivalent to the earnings which he could have counted upon receiving if there had been no disability. I think that the expression should be understood in the sense which best achieves that objective.
Understood in that light, I think that the expression means no more than that the overtime, to be included in the computation of average weekly earnings, must be sufficiently established and worked with sufficient regularity to form part of the worker's regular income which is to be maintained during disability, and to constitute a solid basis for an estimate of the earnings which the worker could reasonably have been expected to earn during disability. 'Pattern' in this context does not import any notion of uniformity in, or even correspondence between, the number of hours worked in the various pay periods. If overtime is worked regularly and is an established incident of the employment so as to form in practice part of the regular income, a regular and established, albeit perhaps an uneven or disjointed, pattern exists. On the contrary, if overtime is worked only occasionally or spasmodically in response to busy periods or special demands so that it does not form part of the regular income, it cannot be said to be worked in accordance with a regular and established pattern." 18. I do not regard the Francese case as helpful here. I observe in passing that (c), supra, has been repealed.
19. I refer to Hall v Estate of J R Hughes [1948] WCR 97. The applicant was a wool classer whose permanent home was at Hunter's Hall in Sydney, but he was employed on a sheep station. He finished his work there on 8 October 1946 and slept that night at the station property. On 9 October he travelled home and accidentally fell walking across the Hunters Hill Wharf. The question for the court's decision was whether the applicant was injured on a daily or periodic journey between his place of employment and his place of abode. The words I have emphasised were contained in s7(1)(b) of the 1926 NSW Act. At p98, Lamond J said:
"The other question is whether this particular journey constituted a 'daily or periodic journey.' It was submitted for respondent that there must be periodicity past or future attached to the journey from the place of employment provided by the employer from whom compensation is claimed." 20. Later, his Honour said:
" ... in the case of a man who obtained employment for one day only and was injured on his way to work, so that he never even performed the homeward journey, it seems to me that it could not be said that he had not been injured on his daily journey notwithstanding the absence of repetition of the journey. In my view, the phrase is one directed not to the existence of a contract of employment between the worker injured and his employer, under which the worker is to perform a series of journeys, but rather to the character or intention of the journey. So if the journey is one undertaken by the worker for the purposes of going to or from his employment, it becomes a journey within the meaning of the phrase 'daily or periodic,' notwithstanding that he personally may not perform the journey more than once. In other words, it is a journey of the character which workers generally, either daily or if not daily, periodically, undertake for the purpose of going to or from their employment." 21. I also refer to Forbes v Beveridge [1959] WCR 228. The deceased worker contracted with an agent of the respondent to do a day's shearing as substitute for another man. On the way to commence work he received an injury which resulted in his death. Compensation was claimed by his dependants. Rainbow J said, at 228:
"There was a contract of service concluded with Mr. Beveridge. It follows from previous decisions that the journey cover attaches to the first journey to work and the last journey home after termination of the contract ..." 22. In Walker v Wilson (1991) 172 CLR 195, the High Court had occasion to discuss s19(1) of the Western Australian Workers Compensation and Assistance Act 1981 which contained the phrase "while he is travelling on any regular, daily or periodic journey ...". At p205 in their joint judgment, Deane, Dawson Toohey and McHugh JJ said:
"It has long been accepted that workers' compensation provisions of the kind found in s.19 are applicable to a worker travelling from the workplace after having 'knocked off ... for good' as well as to the worker who has 'knocked off for the day': See Commonwealth Aircraft Corporation Pty. Ltd. v. Hunt (1946) 46 S.R. (N.S.W.) 240, at p242; Gray v Kirchubel (1948) 2 W.C.B.D. (Vict.) 116 at p.118." 23. I think the respondent's argument derives some support from these cases.
24. I agree with Mr Martin, counsel for the respondent, that it was an integral part of the employment in which the deceased was engaged that he would travel from Loxton to Belvedere to perform the work, that he would camp whilst there and return to his home, not daily, or even weekly, but regularly. They were necessary consequences of the employment that he was engaged in. So long as he was involved in that employment it would involve him making those journeys. It must be remembered that Nick Kotsikas, whose evidence the review officer accepted, said that the deceased left behind at Belvedere Station his sleeping gear, a frying pan, some clothes and his thick belt. The review officer also found that the deceased intended to return there for more work. Such a finding may not have been necessary on the authorities I have cited for the respondent to succeed.
25. I would allow the appeal, set aside the orders of the Appeal Tribunal, and restore the orders of the review officer.
OLSSON J
26. This is an appeal against a decision of the Workers Compensation Appeal Tribunal ("the Tribunal") dated 15 November 1996. For reasons published by him on that date, Deputy President Hardy set aside a determination by a Review Officer granting compensation to a widow pursuant to section 44 of the WorkersRehabilitation and Compensation Act 1986 ('the Act"). He directed reconsideration of the matter before another Review Officer.
27. It is necessary, before turning to the issues arising on the appeal, to summarise the relevant narrative facts.
28. The Review Officer was called upon to consider the rejection, on 23 November 1993, by WorkCover Corporation, of a claim for lump sum compensation pursuant to section 44 of the Act in relation to the death of the late Efthymios (Tim) Spyridakos, which occurred on 25 May 1991.
29. It was not disputed that the deceased met his death as a consequence of a motor vehicle accident, which occurred on an unsealed road between Taplin and Talgara, near the South Australian/New South Wales border. At the time the deceased was a passenger in a vehicle driven by Tom Stassinopoulos, whose son Hara (or "Harry"), was a principal of the charcoal burning business known as "Black Diamond Charcoal". At the time of the accident Stassinopoulos, the deceased and one Bromley (an employee of Black Diamond Charcoal), were returning from a charcoal burning operation located on Belvedere Station (in New South Wales) to Loxton, where both the deceased and Stassinopoulos lived. They had all been working at Belvedere Station for the previous fortnight.
30. A major question arose before the Review Officer as to the precise status of the deceased in relation to the charcoal burning business at the time of his death. It was the case of the widow that the deceased was then an employee of the charcoal burning business and that the accident leading to his death occurred in the course of a journey between his place of employment and his home. It was asserted by WorkCover Corporation that he was not an employee of that business at the relevant time.
31. As the Review Officer expressed the situation, it was the appellant's claim that the deceased had entered into a verbal contract to perform work as an employee at the charcoal-burning site in New South Wales. That activity was conducted at what was essentially a bush camp site, at which most of the persons concerned resided in tents, virtually without any facilities at all. It was apparently the custom for persons engaged in the operation to work for a period of time and then return to Loxton for a break. On the appellant's case the deceased had completed a two-week stint of work at Belvedere Station (which is about 127 kilometres from Loxton); and a group of persons who had been at the site were returning to Loxton for two to three days for a break, after which the intention was to return to the site and resume work.
32. At the time of the accident the deceased was 51 years of age. He and his wife were of Greek extraction and were living in Loxton. He had been working as a fruit picker, but, at the time, work of that type was not in plentiful supply.
33. The evidence indicated that the deceased and his wife were friends of Anastasius (Tom) Stassinopoulos, whose son Harry operated the business known as Black Diamond Charcoal in partnership with the witness Kotsikas. It appears that Tom was employed by the business as its leading hand.
34. Originally the charcoal burning business had been located at Taldra, 17 kilometres east of Loxton. However, due to a lack of suitable timber supply, it was relocated to Belvedere Station. There, at what was no more than a bush camp, timber was cut and then converted into charcoal by burning it under limited amounts of oxygen. As the learned Deputy President described it, the work was extremely arduous and those employed at the site lived and worked under extremely trying circumstances. Timber was cut by means of chain saws, collected and then burnt in the manner indicated.
35. On 23 November 1993 WorkCover Corporation rejected the appellant's claim for compensation, inter alia, upon the basis that, whilst it may well have been that the deceased had performed certain work functions at the Belvedere Station camp site, he did not do so as an employee of Black Diamond Charcoal - his primary purpose in going there was merely to hunt feral goats. The appellant contended that any work functions were purely voluntary and, at best, were designed to provide Harry Stassinopoulos with an opportunity to gauge whether actual employment would be offered to the deceased at some future time.
36. The Review Officer resolved that issue in favour of the widow. He said that, to the extent that there were inconsistencies in the oral evidence, he preferred the evidence of those witnesses who supported the widow's case.
37. The Review Officer pointed out that, following the death of the deceased, there was a paucity of direct evidence as to the circumstances in which he went to the camp site. He pointed out that that problem had been compounded by the apparent casualness and informality surrounding most of the circumstances of the running of the business, the lapse of time between the occurrence of the relevant events and the giving of evidence, the fact that the deceased was a close friend of the family of the alleged employer, and the further circumstance that there was a significant financial incentive for members of both families to give self-serving evidence. He pointed out that, at the relevant time, the proprietors of the business did not have any policy of workers' compensation insurance in existence and were not registered as employers, for workers compensation purposes, in either South Australia or New South Wales.
38. A substantial volume of oral and documentary evidence was placed before the Review Officer and there is no doubt that he embarked upon his task in a thorough and careful manner.
39. He found that, at a time which must have been early in May 1991, the deceased told the respondent that, there being no other work currently available to him, he might find some with Tom Stassinopoulos in the charcoal business. Two or three days later he informed her that he was going to work. He in fact left with Tom Stassinopoulos to go to Belvedere Station at that time. The respondent testified that the deceased had previously worked in a charcoal-producing operation in 1988 or 1989, with a relative.
40. According to the respondent the last contact which she had with the deceased was on an occasion when he rang her from Belvedere Station, on the day before the accident, for the purpose of telling her that "they would be leaving after work the next day" to come back to Loxton.
41. In the course of her evidence she conceded that, in addition to taking some food and clothing, the deceased had also taken a gun with him when he went to Belvedere Station. She said that he always used to take it wherever he went, because he was a keen hunter. It is also of importance, in this regard, to note that the evidence clearly indicated that, to some extent, whilst at Belvedere Station, the workers there lived off the land by killing and eating feral goats.
42. The Review Officer found, on the evidence, that, whilst the business was owned by Harry Stassinopoulos and Kotsikas, Tom Stassinopoulos had authority to hire employees. It is beyond question that it was Tom Stassinopoulos who actually conveyed the deceased to the camp site and that the latter performed a variety of duties whilst there. This involved the felling of timber using a chain saw, the performance of other general tasks in connection with the conduct of the business and cooking for the men. It appears that the deceased was a good cook and, for that reason, a welcome arrival, so far as other workers were concerned.
43. It is not without significance that the evidence revealed that, because of the arduous nature of the work and the conditions under which the workers lived, there appeared to be some turnover of the workforce.
44. According to the witness Bromley, who was working at the camp site at the time when the deceased was brought there, he and other employees were informed that the deceased was "coming up to do a week's work on a trial basis". It was his impression that the deceased was to be a paid employee. He said that he worked hard (as did Tom Stassinopoulos) most days, although there was hunting of goats at certain times. Apparently all of the men tended to be involved in the latter activity. He testified that the deceased found it difficult to keep up with the heavy work, but there was discussion about keeping him on as a cook, because of his skills in that area.
45. In the course of his reasons for decision the Review Officer reflected both upon the evidence given by Bromley and also written statements made by him in some detail. He concluded that the material before him strongly pointed to the fact that the deceased came to the work site on Belvedere Station as an employee, rather than as a mere visitor; and that his activities after arrival were those of a typical employee. He also adverted, in this regard, to the evidence of the witness Nick Kotsikas, which strongly supported such a thesis.
46. The Review Officer, inter alia, spoke of the evidence of Kotsikas in these terms -
"Nick Kotsikas also provided statements and oral evidence. Firstly I was provided with a photocopy questionnaire dated 5 May 1994. In that Nick Kotsikas says that he was a partner in Black Diamond Charcoal 'receiving 25% in Black Diamond Charcoal'. He went on to say that after the accident he did not go back as he was not making any profit. In relation to Tim's activities he said that 'Tim was working every day nine to 10 hours a day most of the days. He was cutting with a chainsaw which I was sharpening his chain for him, other days loading the truck, and throwing wood into the pits.'
In relation to who made the arrangement for Tim to attend the site he said that 'Tom Stassinopoulos had arranged the employment orally with his son Hara and myself a few days before Mr Spyridakos arrived'. In relation to Spyridakos's purpose in going there he said that 'Mr Spyridakos arrived, for the purpose to work with Black Diamond Charcoal, that was the agreement'. In relation to the continuity of the work Kotsikas's statement says yes 'there was an agreement. Mr Spyridakos was going to return to Belvedere with his own transport to continue working with Black Diamond Charcoal'." 47. A little later in his reasons for decision the Review Officer further reflected upon the fact that -
"Kotsikas was also adamant that the purpose of Spyridakos attending was to work. He said that some two to three months previously Tim had said to him he would like to come there to work and Nick said that he should ask Tom. Kotsikas knew that Spyridakos had no money. Hara told him that Tim was coming with his father to work.
In relation to the question of payment Kotsikas said (at p119) 'and then when he left there Wednesday lunchtime he got $500 from his work. He might not pick it up by himself because the accident took place but Tom would give it to him in the town. Myself and Harry, we were left behind and we had to work out some accounts. We used to prepare the wages because the three workers left and we stopped in the caravan and we were the two bosses left there...' He said that when he stayed behind with Harry they 'had a look and calculated the wages'. He saw Hara write an amount of $500 into a business records book." 48. The Review Officer also recited that the effect of the evidence of Kotsikas was that an arrangement had been made that the deceased was to return to Loxton to attend to some business and then would come back to the camp site a couple of days later. He testified that the deceased left his sleeping gear and frying pans and clothes and his thick belt at the camp site.
49. Both the deceased's son and Mrs Angela Kotsikas gave evidence before the Review Officer to the effect that, about a week after the death of the deceased, Tom Stassinopoulos handed to him $500 in cash - telling him that the money was his father's wages for the two weeks' work performed at Belvedere Station.
50. The Review Officer pointed out that the foregoing evidence fell to be contrasted with that of Harry Stassinopoulos who steadfastly contended that the deceased had merely come to the camp site as a visitor, and had never been employed in the business. The primary purpose of the visit, he contended, was to go shooting. Stassinopoulos asserted that there had been no firm arrangement for the deceased to come back to the work site after his return to Loxton on the day of the accident. He also denied the authority of Tom Stassinopoulos to engage any person on behalf of Black Diamond Charcoal.
51. Perhaps not unsurprisingly, having regard to his analysis of the evidence given by Harry Stassinopoulos in contrast with the remainder of the evidence generally (including evidence of the somewhat cavalier manner in which the business was conducted - seemingly in contravention of a number of legal requirements), the Review Officer ultimately had little hesitation in rejecting him as a reliable witness.
52. On the other hand, he accepted the respondent and Kotsikas as straightforward witnesses, and the respondent's son as an impressive witness. He further expressed the view that Bromley appeared to be the only truly disinterested witness. The Review Officer recorded that Bromley gave his evidence in an open manner; and that it contradicted any other evidence which suggested that the deceased had only gone to the camp site as a visitor or hunter.
53. Bromley's evidence that he was told by Harry Stassinopoulos that the deceased was coming up to work; that the work was provided to help out an old friend financially; and that he might keep Tim on partly as a cook and domestic worker was accepted.
54. As to the evidence given by the members of the Stassinopoulos family, the Review Officer had this to say -
"Tom Stassinopoulos in my view, was not a reliable witness. He was evasive and shifted ground whenever it suited him, giving rise to a string of contradictions and inconsistencies. I am satisfied of this conclusion even after making allowance for the difficulties of using an interpreter and the consequential inaccuracies in the use of language that of necessity creep in.
In relation to Hara I have also reached the same conclusion. Whilst at times he appeared to be open and straightforward there were other times when he also shifted ground and was evasive when confronted with difficult questions. Mrs Stassinopoulos was obviously most concerned for her son's welfare and as she said, she would do anything to help him. I found her to be evasive and prone to over-generalisation." 55. The Review Officer, in referring to the conflict which had arisen on the evidence as to whether or not Tom Stassinopoulos had authority to engage the deceased, commented that "Tom Stassinopoulos held and exercised almost complete authority over the running of the business." He entertained no doubt, on the evidence, that Tom Stassinopoulos had actual authority from Hara Stassinopoulos to employ casual labourers; and to employ the deceased in particular.
56. It was the evidence of Tom Stassinopoulos that the sole purpose of taking the deceased to the Belvedere Station site was to go hunting.
57. The Review Officer directed attention to evidence to the effect that, following his admission to hospital after the accident in which the deceased was killed, Tom Stassinopoulos who had been injured, made a statement to the effect that he had "taken Tim to work and had killed him". This occurrence was denied both by Tom and Mrs Stassinopoulos, but the Review Officer rejected their evidence and found that the statement had in fact been made.
58. Having analysed the evidence in some detail the Review Officer concluded his reasons for decision, as to the facts, by making these specific findings -
1. The deceased performed considerable amounts of work whilst at the camp site, in a manner which clearly distinguished him from being merely a visitor, camper or hunter. Those duties included cooking and domestic activities around the camp. He put in the same hours as the other workers.
2. There was clear evidence that all of the persons at the camp site engaged in hunting, because this was a necessary part of living at the site - they were required to catch a large part of their own food. Hunting activities were not inconsistent with a conclusion that the deceased was engaged in paid employment.
3. The evidence that the deceased was able to run after goats on foot and catch them was inconsistent with evidence given by Tom and Harry Stassinopoulos that the deceased had physical problems to the extent that he was not physically capable of employment.
4. The fact that the deceased left personal belongings at the camp site, including his sleeping bag, some clothes, some cooking gear and his belt, clearly indicated his intention to return and resume employment. It is inconsistent also with the fact that he had merely attended, in the first place, as a visitor to engage in hunting activities.
5. The deceased was due to return on the Friday following the accident, for the purpose of resuming paid activity at Belvedere Station. He was to relieve Nick Kotsikas on that occasion.
6. The payment of the $500 by Tom Stassinopoulos, following the death of the deceased, was, of itself, a clear indication of the fact that the latter had been a paid employee. The amount in question was a direct reflection of the rate of pay normally paid in relation to the number of days which had actually been worked by the deceased.
7. The purpose of the journey undertaken by the deceased at the time of the accident was to travel from the work site back to Loxton, the intention being to first drop Bromley off near his home at Taplan en route and then proceed on to Loxton. The decision to do so was that of Tom Stassinopoulos.
8. The route being traversed by the vehicle at the time of the accident was not a substantial deviation from a reasonable direct, or convenient, route between the work site and the deceased's home, which had materially increased the risk of injury by reason of the fact that the appellant was not wearing a seat belt and the vehicle was travelling on an unsealed road. In this regard the Review Officer said -
"The first question is whether the worker was engaged in a substantial deviation at the time of the injury. It has to be a substantial deviation from any reasonable, direct or convenient route between work and home. In my view it was not. The question must be answered in the context of the particular circumstances that exist in this case. They include the significant distance between Belvedere and Loxton and the fact that it was reasonable and convenient to make shared transport arrangements in conveying personnel between Belvedere and Loxton. In this context it is also reasonable that there may be a number of drop-offs of people or personnel in or about the Loxton area. In the circumstances it was simply common sense for Tom Stassinopoulos to take the route he did, bearing in mind that he lived in the same town as Tim and that by dropping Bromley off first he avoided retracing his steps from Loxton to Taplan and back again. In my view, based upon the distances involved, and the full context of the journey the worker was not engaged in a substantial deviation of the relevant journey at the time of the accident." 59. The Review Officer went on, for reasons which are entirely suasive, to say that, even if he was wrong in his conclusion as to substantial deviation, it could not be said that what was done had increased materially the risk of injury. There is no need to re-traverse points made by him, which evidence a common sense appraisal of the situation.
60. Having made those findings, the Review Officer went on to discuss the provisions of section 6 of the Act, in light of arguments which had been advanced by counsel in relation to it. In essence he concluded that the death of the deceased was, in all of the relevant circumstances, compensable under the South Australian legislation, and determined that the respondent was entitled to receive lump sum compensation in the sum of $148,572.50, in accordance with section 44(1) of the Act.
61. The appellant appealed to the Tribunal against that determination. By its Notice of Appeal it challenged the finding that the deceased had ever entered into contract of service with Harry Stassinopoulos as proprietor of Black Diamond Charcoal; challenged the finding that the employment found to exist fell within the provisions of the Act, or was compensable pursuant to it; asserted that, in event the Act did apply, then the death of the deceased occurred at a time when either he was not in the course of a compensable journey, or, alternatively, there had been a substantial deviation which had materially increased the risk of injury. Finally, complaint was made that the claim had been statute barred, by reason of the provisions of section 51 of the Act.
62. When the appeal came on for hearing before the Tribunal the present appellant abandoned that aspect of the appeal which sought to challenge the finding that the deceased had been an employee of "Black Diamond Charcoal", whilst at Belvedere Station. It also abandoned its contention that the respondent's claim was, in the circumstances, statute barred.
63. In his reasons for decision the learned Deputy President recited that, at the relevant time, section 6 of the Act was expressed in these terms -
"6 (1) Subject to this section, this Act applies in relation to -
(a) employment in the State;
(b) employment outside the State of a worker who is predominantly employed in the State;
(c) employment outside the State by the Crown in the right of the state;
(d) employment on a South Australian ship;
(e) employment outside the State (not being employment in respect of which the worker is protected by a corresponding law) -
(i) to which a worker regularly travels from a port or place in the State; or
(ii) which forms part of the employment of a worker who is employed both in and outside the State.
(2) Where -
(a) a worker (not being an officer or employee of the Crown in the right of the State) is employed both in and outside the State, but predominantly outside the State; and
(b) the worker is, in respect of employment in the State, protected by its corresponding law,
this Act does not apply in respect of the employment in the State". 64. The learned Deputy President noted that the Review Officer had concluded that, for the claim to succeed, the appellant needed to bring it within the provisions of section 6(1)(e)(i) [he in fact referred in his printed reasons to (ii), but this appears to be a typographical error].
65. He opined that the Review Officer had correctly assessed that the Workers' Compensation Act 1987 (NSW) ("the NSW Act") was a corresponding law "within the meaning of section 6(1)(e)(i) of the Act". However he considered that there had been no relevant expert evidence as to the method of operation of the NSW Act. Accordingly, in his opinion, there had been no basis upon which the Review Officer could properly have arrived at the conclusion that he did, i.e., that the benefits of that statute were inferior to those provided for by the Act; and that, accordingly, it had not been established that the workers employment was not protected by a corresponding law at the relevant time, as contemplated by section 6(1)(e) of the Act.
66. Having noted such a situation, he arrived at a final conclusion expressed as follows -
"Ultimately I have come to the conclusion that the determination of the applicability of the NSW Act was and is such a controversial issue and is so vital to the resolution of this case that notwithstanding the discretion of s88(1)(b) of the Act and perhaps s63 of the Evidence Act 1929 may provide, it was none the less wrong in the circumstances of this case for the review officer to make concluded findings on that issue without the benefit of expert opinion evidence." 67. It was for that reason that he allowed the appeal and remitted the matter back to a Review Officer to determine the appellant's claim on its merits. Because of the fact that the original Review Officer's appointment had lapsed, the learned Deputy President remitted the whole matter for a complete rehearing de novo.
68. The criticism advanced by the learned Deputy President focuses on the following paragraphs in the reasons for decision of the Review Officer -
"The remaining hurdle is a consideration of whether or not the relevant NSW law protects the employment. Again I could find no decided authority on this point. The corresponding law is the NSW Workers' Compensation Act 1987. Based on my findings it would seem that the deceased would similarly establish a contract of employment with Hara Stassinopoulos with the employment to be performed within New South Wales. On that basis the employment would come within the scope of a corresponding law. The question remains as to whether or not the employment was 'protected' by that law. In order to make a decision about that there needs to be a comparison of the rights attached to the employment by both sets of corresponding laws, specifically in relation to a fatal compensable accident. Section 25 of the NSW Act provides that the amount of compensation payable to any dependant, wholly dependent for support on a deceased worker, is fixed, (as of May 1991) in the sum of $168,300. Section 25(b) provided for certain weekly payments to be available to dependant children. However dependant spouses have no entitlement other than to receive the lump sum. As there is only one defendant and there is a claim for at least partial dependency and there is some evidence to support this, the absence of any right in the corresponding law for
the deceased's widow to claim weekly payments of compensation is a significant difference. The lump sum payable pursuant to s44 of the South Australian Act to the widow is the sum of $148,572.50.
It follows that if any partial dependency claim is established by the widow, then based upon her age and the deceased's age at the time of his death then it is probable that the spouse would have a substantial claim for weekly payments of compensation that in total greatly exceeds the difference or even a shortfall, between the NSW and the SA lump sums. As I am not prepared to find that a complete absence of any right under the NSW Act to claim weekly payments of compensation for either a fully or partially dependant spouse amounts to legal protection of her rights, it follows that the worker's employment was not protected by a corresponding law at the relevant time. The result is that the accident in question falls within the scope of the SA Act". 69. In my opinion the learned Deputy President failed to address the real issues in this case, which did not require the adducing of expert evidence as to the method of operation of the NSW Act. It is a routine task of the courts of this State, as the occasion demands, to consider the meaning and effect of the statutes of other States of the Commonwealth, when it is necessary to do so, because of their potential relevance to and impact upon issues arising in local litigation. What is involved is an ordinary process of statutory interpretation.
70. The first question to be posed is whether, in terms, the facts, as found, fall within the potential ambit of operation of the NSW Act at all.
71. The NSW Act erects a scheme of workers compensation in what is a fairly familiar format. Section 90 provides that "A worker" who has received an "injury" (or, in the case of the death of a worker, his or her dependants) shall be entitled to compensation in accordance with the statute. The expression "worker" is defined to mean a person who has entered into, or works under, a contract of service. By virtue of section 10, personal injury received by a worker on (inter alia), any periodic journey between the worker's place of abode and place of employment is deemed to be an injury arising out of or in the course of the relevant employment.
72. Section 13(1) of the NSW Act is expressed as follows -
"13. (1) If:
(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker; and
(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,
the injury is an injury to which this Act applies, and compensation is payable accordingly." 73. The section then proceeds to express provisions aimed at preventing the receipt of double compensation, due to the parallel operation of the laws of another State, the Commonwealth or a Territory.
74. A question immediately arises as to what is meant by the expression "there employs", where it appears in subsection (1)(a).
75. That issue is simply resolved by reference to the following dictum of Gleeson CJ in Starr v Douglas and Others (1994) 35 NSWLR 133 at 134 -
"It is settled law that the reference in s 13(1) of the Workers Compensation Act 1987 to employing a worker in New South Wales is a reference to the place where the worker is engaged, not to the place where the work is performed: Helmers v Coppins (1961) 106 CLR 156. As the facts of the present case illustrate, the process of engagement of a worker may take place across State, or national boundaries. Where that occurs, it will frequently be necessary to resort to the principles of law as to where a contract is entered into. On the application of those principles to this case, the contract of employment was made in the Northern Territory. Accordingly, the conditions necessary to bring the appellant, who was injured outside the State, within the purview of the New South Wales legislation are not satisfied." 76. There can, with respect, be no doubt that this pronouncement is an accurate reflection of what fell from the High Court in Helmers v Coppins (1961) 106 CLR 156.
77. It follows that, unless it could be established that the relevant contract of service with the deceased was consummated in New South Wales, then section 13(1) had no application; and there would be no entitlement, in his dependants, to compensation under the NSW Act in respect of the death of the deceased (See Mynott and Others v Barnard (1939) 62 CLR 68).
78. On the facts as found the only logical inference which arises is that the relevant contract of service was consummated at Loxton, in South Australia. As to this, the following facts are of importance -
1. the principals of the employer business were domiciled in or about Loxton;
(2) the work site was in relatively isolated station country on Belvedere Station in New South Wales, some 127 kilometres from Loxton;
(3) the work site was no more than an encampment in which the workers engaged in the relevant business activity and lived, in primitive conditions, for periods of time, rotating back to Loxton (or, presumably, elsewhere) for breaks;
(4) such was the remoteness of the location that, of necessity, those working at it had to capture and kill feral goats for sustenance;
(5) Tom Stassinopolous, whilst not a partner in the business at the time, nevertheless played a significant part in its conduct, actually worked at Belvedere Station for substantial periods, and had authority to engage employees;
(6) he, himself, lived in Loxton and was a family friend of the deceased;
(7) whilst in Loxton, Tom Stassinopolous orally concluded an agreement with the deceased that the latter would take paid employment in the business at Belvedere Station;
(8) Tom Stassinopolous personally drove the deceased to the work site, where both men immediately commenced work duties. 79. Mr Hackett-Jones QC, of senior counsel for the appellant, sought valiantly to contend that the evidence indicated that the deceased did not enter into any contract of service until he arrived at the work site and, by agreement consummated there, then actually commenced work. With all due respect, it seems to me that such a contention flies in the face of both the facts, as found, and also reality.
80. Not only was the evidence, as accepted by the Review Officer, to the effect that, when the deceased left Loxton, he said that he was going to work at Belvedere Station and took relevant items with him consistent with a stay for some time, but also he was, in effect, taken on a one-way journey by Tom Stassinopolous, in the latter's vehicle, a distance of 127 kilometres into an isolated area where work was immediately embarked upon.
81. The plain fact of the matter is that all evidence accepted points in a single direction. It is little short of fanciful to suggest that, in the circumstances, when he travelled to Belvedere Station, the deceased had not already committed himself to paid employment and may, in the event, merely have treated it as an extended hunting expedition.
82. Quite apart from the fact that the deceased's son testified that this was not consistent with his father's past pattern of activities, the submission virtually ignores the fact that the Review Officer expressly rejected the assertion of the appellant that the purpose of the expedition was merely to embark upon some hunting activities.
83. It must be pointed out that Tom and Harry Stassinopolous rejected outright the suggestion that employment was ever in contemplation at any stage - assertions which were rightly rejected by the Review Officer and were utterly inconsistent with the evidence of Bromley and Kotsikas. That evidence is simply not consistent with the thesis now sought to be advanced by Mr Hackett-Jones QC.
84. It follows, then, that the NSW Act had no application to the injury sustained by the deceased in South Australia, which caused his death.
85. It remains for consideration whether the respondent, on the found facts, established an entitlement to compensation under the Act.
86. One commences with the proposition that the deceased entered into a contract in this State, with persons domiciled in this State, to perform work in New South Wales. It was implicit that this was an open-ended arrangement which, implicitly, contemplated periodic short returns to Loxton. There is no doubt that, when the accident occurred, the deceased was being driven home (with one or more other workers), for such a purpose, by Tom Stassinopoulos (the leading hand of the business), who chose the most convenient route for the purpose. The evidence suggests that all occupants of the vehicle were due to return to work at Belvedere Station several days later.
87. Section 30 of the Act, as it then stood (so far as is relevant for present purposes), was expressed as under -
"Compensability of disabilities
30. (1) Subject to this Act, a disability is compensable if it arises from employment.
(2) A disability arises from employment if -
(a) in the case of a disability (not being a secondary disability or a disease) - it arises out of or in the course of employment; or
(b) in the case of a disability that is a secondary disability or a disease -
(i) the disability arises out of employment; or
(ii) the disability arises in the course of employment and the employment contributed to the disability.
(3) Subject to subsection (4), the employment of a worker includes -
(a) a journey between the worker's residence and place of employment (whether to or from the place of employment);
..." 88. As Mr Martin, of counsel for the respondent, stressed, this section is a core provision of the statute, which seeks to carry into effect one of the two stated objects of the legislation, i.e., "to provide for the ... compensation of workers in respect of disabilities arising from their employment". One would therefore, prima facie, expect the expression "employment" to be used in a constant sense throughout the enactment.
89. Mr Hackett-Jones QC sought to argue that this was not so; and that, when the word "employment" was used in section 6, it was used in its ordinary connotation (but as extended by section 3); and not the more extended sense referred to in section 30(3)(a). In this regard he called in aid dicta of Priestley JA in Patman v Fletcher's Fotographics Pty Ltd and Anor (1984) 6 IR
471 at 474-5, where His Honour eschewed a literal meaning of the words in a section read in isolation, in favour of viewing provisions in context, in a proper, sequential perusal of the statute.
90. As Mr Martin fairly pointed out, the judgment in that case really argues for an approach which actually denies the proposition relied on by Mr Hackett-Jones QC, in the instant case.
91. The points made by Priestley JA may fairly be distilled down into these propositions -
1. a section in a statute cannot [normally] be read and construed in isolation;
(2) "it must be read with both what precedes and follows it" and in the sequence in which it has been written;
(3) [in the context then under consideration] later sections in the statute must derive their flavour from the core concept established by the relevant earlier section. 92. In other words he was propounding the proposition that one ought to look at the fundamental propositions sought to be established in a statute and construe other provisions in it so as best to reflect those propositions and give effect to them.
93. So it is that, in the present case, even granted that the statute is divided into a series of separate Parts, it simply cannot be ignored that the fundamental concept of the Act is the establishment of the entitlement to compensation spelt out in section 30.
94. Section 6, although it precedes section 30, is, like most other sections which lead up to it, merely ancillary to its central theme and is designed to give effect to it in practical terms. It would be strange indeed if a statute which, at all times, focuses on an entitlement to compensation for disability arising from "employment" used that word in a variety of senses. Moreover, as at 1991, the concept of so-called "journey injuries" was an ingrained feature of virtually all statutory schemes of workers compensation. It was certainly so in the case of the legislation of this State.
95. I entertain no doubt that section 6 was intended to use the word "employment" in the same sense as it was used in section 30; and, thus, set out to explain how the scheme of compensation erected by that section was to apply in certain circumstances.
96. In this regard I am unable to accept the contention that the opening phrase in section 6 "Subject to this section" has any connotation other than to render it clear that the section is intended to constitute an exclusive code as to the span of territorial application of the Act, and also the conditions upon which it is to apply in the specified circumstances.
97. I am, therefore, of opinion that the word "employment" used in section 6 embraces all deemed circumstances adverted to in section 30. It would be anomalous and potentially work quite unfairly if it were otherwise, because it would operate to deny compensation in a variety of situations in relation to which the legislature has deemed it appropriate that compensation ought, normally, to attach (e.g., attendance for educational purposes, for obtaining medical treatment, or participating in a rehabilitation programme which, in the case of employment near a State border, might, routinely, involve passage across the border to a nearby major centre in an adjoining State).
98. It is my conclusion that, on a proper construction of section 6, the respondent was entitled to the benefit of the Act by virtue of the fact that, at the time of his death, the deceased was engaged in employment in the State (sections 6(1)(a), 30(3)(a)) and the entitlement was not excluded by virtue of section 6(2) because, although the employment was predominantly outside the State, he was not protected by a corresponding law at the time of his death.
99. It cannot be emphasised too strongly that the clear intention of section 6 was to attempt to avoid the occurrence of anomalous situations such as that typified by Mynott v Barnard (supra), and it ought to be construed in that light. It is to be noted, in particular, that section 6(a)(i) is, in terms, complementary to and harmonises with, section 30(3)(a). Both focus on journey situations, rather than employment in the ordinary, unextended sense of that word. Indeed, the presence of section 6(1)(e)(i) seems to me the strongest of indications that the legislature did intend both sections 6 and 30 to embrace the common concept of "journey" situations being deemed to constitute "employment".
100. It is to be noted that, in contrast with the NSW Act, the Act uses the word "employment" as connoting, inter alia, "work done under a contract of service". It does not, at any stage, focus on the concept of "employs", as utilised in section 13(1) of the former.
101. It follows that the Review Officer arrived at the correct ultimate result, albeit for the wrong reasons.
102. I would allow the appeal, set aside the order appealed from and reinstate the determination of the Review Officer.
WILLIAMS J:
103. This is an appeal against a decision of the Workers Compensation Appeal Tribunal. The facts relating to this appeal have been comprehensively reviewed by Olsson J.
104. The question at issue concerns the territorial scope of the WorkersRehabilitation and Compensation Act 1986 (SA). More particularly the question involves the construction and application of s6 of that Act as in force on 22 May 1991 with particular reference to the following extracts from the section:-
"6(1) Subject to this section, this Act applies in relation to-
(a) employment in the State;
...
(e) employment outside the State (not being employment in respect of which the worker is protected by a corresponding law)-
(i) to which a worker regularly travels from a....place in the state... " 105. On 22 May 1991 Mr E Spyridakos died as a result of a vehicular accident near Taplin (within South Australia) as he was travelling home to Loxton South Australia after a fortnight of working as a charcoal burner on Belvedere Station in New South Wales. The Workers Rehabilitation and Compensation Act provides a scheme of compensation in respect of disability (including death) arising from "employment" - as defined in the Act. The widow of the deceased claims that the employment contract under which the deceased worked was made in South Australia and that as he was killed whilst returning from work she has an entitlement to be compensated in respect of the deceased's death - arising from his employment.
106. Putting aside those cases having an extraterritorial component, the South Australian Act (as it then was) clearly extends the notion of "employment" to situations involving journey accidents occurring between place of employment and residence (see s30(3)). Mrs Spyridakos claims that upon the facts of this case the statutory notion of "employment" also extends to a journey between a place of employment outside South Australia and a residence within the State.
107. It is the contention of WorkCover that the Act has no application to the circumstances of the deceased's death.
108. Following WorkCover's rejection of the widow's claim a Review Officer resolved the matter in favour of the applicant. WorkCover then appealed to the Tribunal against that determination; the Tribunal (after a hearing) referred the matter back to the Review Officer for the purpose of taking evidence as to New South Wales law. The parties are in agreement that in so doing the Tribunal overlooked its obligations to take notice of the laws of New South Wales and that in this respect the Tribunal was in error. However, the parties remain in dispute as to whether the South Australian Workers Rehabilitationand Compensation Act has application and this point should now be determined upon the present appeal.
109. It should be observed that s118 (Full faith and credit clause) of the Australian Constitution and s35 of the Evidence Act 1929 (South Australia) requires Courts and Tribunals of this State to take notice of the legislation of other States.
110. There is a dispute as to whether the contract of employment was made in South Australia or on the work-site in New South Wales. In my view it is now unnecessary to resolve that question.
111. The ambit of application of the Act is set out in s6 and specifies the circumstances in which and the extent to which the Act has extraterritorial operation. Section 6 reads as follows:
"(1) Subject to this section, this Act applies in relation to-
(a) employment in the State;
(b) employment outside the State of a worker who is predominantly employed in the State;
(c) employment outside the State by the Crown in right of the State;
(d) employment on a South Australian ship;
(e) employment outside the State (not being employment in respect of which the worker is protected by a corresponding law)-
(i) to which a worker regularly travels from a port or place in the State; or
(ii) which forms part of the employment of a worker who is employed both in and outside the State.
(2) Where-
(a) a worker (not being an officer or employee of the Crown in right of the State) is employed both in and outside the State, but predominantly outside the State; and
(b) the worker is, in respect of employment in the State, protected by a corresponding law,
this Act does not apply in respect of the employment in the State." 112. Section 6 must be read in conjunction with s3 from which I have extracted certain definitions as follows:
"(1) In this Act, unless the contrary intention appears-
"contract of service" means-
(a) a contract under which one person (the worker) is employed by another (the employer);
(b) a contract, arrangement or understanding under which one person (the worker) works for another (the employer) in prescribed work or work of a prescribed class;
(c) a contract of apprenticeship;
(d) a contract, arrangement or understanding under which a person (the worker)-
(i) receives on-the-job training in a trade or vocation from another (the employer); and
(ii) is during the period of that training remunerated by the employer;
"corresponding law" means a law-
(a) of the Commonwealth;
(b) of a State (other than this State) or a Territory of the Commonwealth; or
(c) of another country,
that provides for compensation for disabilities arising from employment;
"employer" means-
(a) a person by whom a worker is employed under a contract of service, or for whom work is done by a worker under a contract of service;
(b) in relation to persons of whom the Crown is, under section 103A the presumptive employer-the Crown;
(c) in relation to persons of whom any other person is, by virtue of a provision of this Act, the presumptive employer - that other person,
and includes a former employer and the legal personal representative of a deceased employer;
"employment" includes-
(a) work done under a contract of service
(b) the work of a self-employed person to whom the Corporation has extended the protection of this Act;
(c) the work of persons of whom the Crown is, under section 103A, the presumptive employer;
(d) attendance by a worker at a place of pick-up;
"worker" means-
(a) a person by whom work is done under a contract of service (whether or not as an employee);
(b) a person who is a worker by virtue of section 103A;
(c) a self-employed worker,
and includes a former worker and the legal personal representative of a deceased worker." 113. Argument upon the appeal was directed to s6(1)(a) and (e). It has not been suggested that the respondent's claim could be supported by any other of the circumstances listed in s6.
The Operation of s6(1)(a)
114. It is evident that the word "employment" as used many times in s6 has an ambulatory meaning. Applying the definition in s3, "employment" sometimes means "attendance at a place of pick up" but sometimes in its context it also refers to "work under a contract of service." However in all instances "employment" is to be distinguished from the contract of service giving rise to the employment. I refer to the respective definitions of "contract of service" and "employment" in s3 and observe that "employment" includes work done under a contract of service. The performance of contractual obligation (in the form of "work") is thus not to be equated with the engagement or contract giving rise to that obligation.
115. The applicant seeks to bring herself within s6(1)(a) upon the footing that the contract of employment was made in South Australia. However, I am of the opinion that in s6(1)(a) "employment" refers to the work itself and not to the contract or engagement which gives rise to the work. I consider that the place of making of the contract is not the criterion for the application of s6(1)(a). In Helmers v Coppins (1961) 106 CLR 156 "employs a worker" was held to mean "engage a worker" but the language of the statute there in question is quite different from that used in s6. In my opinion the respondent fails insofar as she relies upon s6(1)(a).
The operation of s6(1)(e)
116. Section 6(1)(e) applies to employment outside the State but subject to two conditions - one condition being of a disqualifying nature and the other being of a qualifying nature. "Employment" in this context embraces both work and attendance at pick up. The conditions under which the Act applies extraterritorially in respect of employment involves consideration as to:
1. whether the employment of the worker outside the State is "protected by a corresponding law" (the disqualifying condition) and
(b) whether such employment outside the State is that to which the worker regularly travels from a place within South Australia (the qualifying condition). 117. (In the interests of accuracy I note that the condition in parenthesis in s6(1)(e) is actually expressed in the negative, the condition being that the employment is not relevantly protected. However, I have found it cumbersome to continually refer to the absence of a particular circumstance and have therefore used the phrase "disqualifying condition").
118. It seems clear that the deceased had work at Belvedere Station which constituted "employment outside the State [of South Australia]" within s6; it is arguable upon the facts that the deceased "regularly travels" to this employment from Loxton - "a place in the State" and that the qualifying condition has been met. It remains to be seen whether the disqualifying condition will apply; the circumstances may fall within s6(1)(e) if the extraterritorial employment is "not...employment in respect of which the worker is protected by a corresponding law". Thus the question arises - was the employment of the worker relevantly "protected by a corresponding law"? Undoubtedly the Workers Compensation Act 1987 (New South Wales) falls within the definition of "corresponding law" in s3 of the South Australian Act in that the New South Wales legislation "provides for compensation for disabilities" arising from employment.
119. In my opinion it is necessary to make comparison between the essence of the New South Wales legislation and the South Australian WorkersRehabilitation and Compensation Act in order to reach a conclusion as a matter of law as to whether or not the worker (or - more precisely - the employment) is "protected" within the meaning of s6. I do not consider that the two Acts need be mirror images for the relevant "protection" to exist; nor do I consider that the New South Wales Act need cover every eventuality and in exactly the same way as the South Australian Act in order that the employment be treated as "protected". It is also unnecessary that the ambit of the New South Wales Act be as wide in all respects as the legislation with which it is being compared in order for its benefit and remedies to be sufficient (when applied to a particular worker) for that worker's employment to be characterised as "protected" by the foreign law for the purpose of s6. South Australian Parliament has intended that its legislation will not apply where, looked at broadly, the relevant Worker's Compensation statute of another State is sufficient in its terms.
120. Treating the South Australian Act as the bench mark, the fact that upon comparison, some hiatus may be found in the scheme of the relevant New South Wales Act in some limited circumstance will not in itself necessarily lead to the conclusion that the worker's employment is not "protected" for the purposes of s6.
121. In providing a scheme of protection for workers, the New South Wales legislation approaches the question of its extra territorial operation in a different way from that adopted in the South Australian Act.
122. In Mynott v Barnard (1939) 62 CLR 68 at 73-76 Latham CJ canvassed the various ways in which a Parliament might deal with territorial limitation in this type of legislation.
123. At 73-74 Latham CJ says (with respect to the Workers Compensation Act 1928 (Vic)):
"...It would be unreasonable to read the section as applying to all employers, all workers, and all accidents everywhere. Some territorial limitation must be introduced in the construction of the section. The court has been offered an embarrassing choice of possible limitations. Each of the following elements (or some combination of them) has been suggested as possibly relevant - the Victorian domicile or residence of one or both parties: the fact that the contract of employment was made in Victoria: the fact that the work under the contract was to be done in Victoria, in whole or in part: the fact that the accident happened in Victoria: the fact that the governing law of the contract of employment was the law of Victoria: and, on the basis of a number of American decisions, the fact that the "status" of the parties as employer and worker arose under Victorian law, or that the relationship of employment in a particular case has a real and substantial connection with Victoria, or a more real and substantial connection with Victoria than with any other country, or the fact of the localization in Victoria of the employer's enterprise. English cases on the subject are quoted and examined in an interesting article by Mr R.L. Gilbert in the Australian Law Journal, vol.11, p.242." 124. In terms of the Workers Compensation Act1987 of the State of New South Wales, s9 establishes a general liability of employers to pay compensation for injury of workers arising from employment; journey claims are dealt with by s10. The Act is comprehensive in its terms and provides extensive protection to workers. However, upon the face of the Act its operation applies only within New South Wales. It provides protection for the deceased's employment at Belvedere Station and journey accidents within New South Wales.
125. The extraterritorial operation of the Act is dealt with by s13 in the following terms:
"13(1) If:
(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker; and
(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,
the injury is an injury to which this Act applies, and compensation is payable accordingly.
(2) Compensation is not payable under this section to the extent to which in respect of any such injury the worker has (and in the case of the death of the worker, his or her dependants have):
(a) received workers compensation under the laws of any country, any State (other than New South Wales), the Commonwealth or any Territory of the Commonwealth; or
(b) obtained judgment against the worker's employer independently of this Act.
(3) If the worker received compensation under this section in respect of any such injury and subsequently in respect of the injury received workers compensation under the laws of any country, any State (other than New South Wales), the Commonwealth or any Territory of the Commonwealth or obtains judgment against the worker's employer independently of this Act, the employer is entitled to recover from the worker an amount equal to the lesser of the following amounts:
(a) the amount of compensation paid by the employer under this section;
(b) the amount of workers compensation received by the worker or of the judgment obtained by the worker otherwise than under this Act." 126. It is to be noted that the phrase "there employs a worker" in s13(1)(a) is to be construed in accordance with Helmers v Coppins as meaning that State of New South Wales be the place of engagement. In this respect, the New South Wales Act approaches the extraterritorial question in quite a different fashion from the five different sets of criteria which have been adopted by South Australia in s6(1)(a)-(e).
127. Nevertheless in my view the extensive rights provided by the New South Wales Act (although not the same as those conferred in the South Australian Act) are such
that Mr Spyridakos and his employment at Belvedere Station should be regarded as being "protected by a corresponding law." In these circumstances (and bearing in mind that the deceased worker was not undertaking work in South Australia) none of the criteria of s6 of the South Australian Act have been satisfied. Therefore the South Australian Act does not apply.
The operation of s30
The respondent to the present appeal argued that s30(3) of the WorkersRehabilitation and Compensation Act extends the meaning of "employment" for the purposes of the Act.
128. Relevantly s30 provides
1. Subject to this Act, a disability is compensable if it arises from employment.
...
(3) Subject to subsection (4), the employment of a worker includes-
(a) a journey between the worker's residence and place of employment (whether to or from the place of employment); ..." 129. Section 30(1) takes effect "subject to this Act" and it is in this light that s30(3) must be considered.
130. However, in my opinion the ambit of the Act - including its extraterritorial operation is comprehensively dealt with by s6 (and the definitions of s3).
131. To allow s30 to affect the ambit of operation of the Act as expressed in s6 would be to allow the tail to wag the dog. For s6(1)(e) to operate there must be regularity in the travel pattern; no such requirement attaches to the operation of s30. Section 6 operates as a comprehensive code for establishing the circumstances involving extraterritorially in which the Act will apply. If the requirements of s6 are satisfied then one may proceed to apply the Act more generally - including s30. However where an extraterritorial element has been identified there can be no entitlement unless the terms of s6 have been met.
132. The employment of the deceased worker does not satisfy the conditions of s6 and accordingly the South Australian Act has no application to the widow's present claim.
133. I consider that WorkCover was correct in rejecting the widow's claim for compensation by its determination dated 23 November 1993.
134. In my view the appeal by WorkCover should be allowed and its determination of 23 November 1993 should be confirmed.
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