Fraser v Bemergals Construction Pty Ltd [2025] VCC 1552

1. Bemergals was formed in 1993. As its name implies, it was a construction company. It was, as is often described, a "family company".
2. Dylan Fraser's father, Robert Fraser, was a builder and a director of Bemergals.
3. Between approximately August 1994 and 14 November 2018, Dylan Fraser's mother, Valerie Fraser, was also a director of Bemergals.
4. Bemergals operated until Robert Fraser retired in 2024. According to Australian Securities and Investments Commission ("ASIC") documents, Bemergals was de-registered in June 2024. Robert Fraser died on 13 January 2025.
5. When it was operating, Bemergals employed up to eight employees and subcontractors.

1. In this case, two potential workplaces have been identified - one in Victoria and one in New South Wales.
2. The two workplaces were:
   • 184 Wheeler Street, Corryong, Victoria ("the Corryong address");
   • Warrina Apartments, Thredbo Village, New South Wales ("the Thredbo address").
3. The Corryong address is both the principal place of business for Bemergals and also the residence of Dylan Fraser.
4. At the Corryong address there was a large shed which contained a range of building material such as timber, nails, steel, bags of concrete, and a range of tools such as drills and grinders ("the shed").
5. The Thredbo address was a construction site at which Dylan Fraser (and other employees and subcontractors) carried out work for Bemergals.
6. I have considered the oral evidence, all of the tendered material, as well as the written submissions provided by counsel. I will only refer to the relevant parts of the material and submissions in this Judgment.
7. For the reasons that follow, I have determined that Dylan Fraser has established that his employment was connected with the State of Victoria.

1. Section 37 of the Act sets out a hierarchy of factors to be considered when determining whether employment is connected to Victoria.
2. The relevant parts of s37 of the Act state:

"Entitlement to compensation only if employment connected with Victoria

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

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

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

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

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

(6) In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer over the preceding 12 months and the intentions of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

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

1. Section 37(3) of the Act contains a cascading test, in that if there is a clear answer to s37(3)(a), then it is not necessary to progress to the question posed by s37(3)(b) and so on.
2. It is clear that s37 of the Act contemplates a situation where a worker works in two States.

1. Dylan Fraser and his mother, Valerie Fraser, gave evidence. They were both cross-examined. I have had the advantage of observing them in the witness box.
2. At the hearing, the following material was tendered:
   • Three Affidavits of Dylan Fraser sworn 16 June 2022, 1 May 2025 and 27 June 2025;[2]
   • An Affidavit of Valerie Fraser sworn 1 May 2025;[3]
   • A proposed Statement of Claim;[4]
   • A Worker's Injury Claim Form dated 25 August 2021;[5]
   • A letter from Xchanging addressed to the plaintiff dated 9 February 2022;[6]
   • A letter from DXC to the plaintiff dated 9 March 2023.[7]
3. No Affidavit from Robert Fraser was produced.
4. The defendant tendered the following documents:
   • Employee Job Sheets from Bemergals covering the period 30 January 2017 to 10 March 2017;[8]
   • A Worker's Injury Claim Form dated 15 December 2020;[9]
   • A Worker's Claim for Impairment Benefits Form dated 7 April 2022;[10]
   • Affidavit of Stephanie Ridout dated 3 February 2025.[11]
5. Dylan Fraser objected to the tender of the Stephanie Ridout Affidavit. For the reasons given below, the Affidavit is admissible in this application.
6. After the hearing, both parties filed written submissions.

1. In his first Affidavit, Dylan Fraser deposed that he commenced a school-based carpentry apprenticeship with Kestrel Apprentice Solutions ("Kestrel") approximately 12 months before the work injury.
2. He then commenced work with Bemergals in February 2017. Bemergals carried out work in both Victoria and New South Wales.
3. He confirmed that he suffered the work injury on 6 March 2017 when he was working as a labourer at the Thredbo address.
4. In his second Affidavit, Dylan Fraser deposed that:
   • He normally commenced work at 5.45am in Corryong, when he would meet his father at the shed;
   • His father would tell him what work he was required to undertake and the jobs he would be required to perform that day, as well as what building materials, equipment and supplies were required onsite;
   • His father would direct him to load the required building supplies and material from the shed onto a trailer. He would then attach the trailer to a utility vehicle ("ute") and load all the necessary supplies into the trailer;
   • It could take 30 to 45 minutes to load the trailer;
   • At the time of the work injury, he was working on different job sites located in Thredbo;
   • He stayed overnight at Thredbo during the week at a ski lodge on average about four nights a fortnight. When he stayed at the lodge, he would drive straight from the accommodation to the worksites. On other days, he would travel from Corryong to worksites in New South Wales and then back to Corryong at the end of the day;
   • In 2017, he held a Learners permit and did a lot of driving to worksites with his father in the ute;
   • On the day of the accident, he drove the ute (and trailer) from Corryong to Thredbo - whilst not specifically stated, it appears that his father was a passenger in the ute;
   • On the days he returned to Corryong, he would drive back to the shed, detach the trailer, unload any remaining equipment and leave it in the shed. This process could take up to an hour;
   • As well as working onsite at construction sites, he would also regularly perform work at the shed, such as preparing the trailers and ute before driving to a site, unloading and storing the trailer in the shed at the end of a workday, cutting and drilling of steel and timber and receiving and stacking goods;
   • He was paid in Corryong.
5. In his third Affidavit, he exhibited a series of photographs of the interior and exterior of the shed which were taken by him in June 2025.
6. The photographs depict a large working shed with timber, building material, tools and workbenches.

1. In oral evidence, Dylan Fraser confirmed that:
   • his father gave him instructions in both Corryong and Thredbo as to the nature of the work he was to undertake at Thredbo;
   • he and his father would usually drive together from Corryong to Thredbo - a distance of approximately 103 kilometres;
   • he often worked with his father at Thredbo.
2. The extent of Dylan Fraser's dealings with his mother, in her capacity as bookkeeper of Bemergals, was less clear.
3. In cross-examination, Dylan Fraser agreed that he had made a WorkCover claim dated 15 December 2020[12] in which he named Kestrel Apprentice Solutions ("Kestrel") of 9 Stanley Street, Wodonga as his employer. In the Claim Form, he was asked where the work injury occurred and he ticked a box that said, "the usual workplace". The Claim Form identified Robert Fraser as the employer contact.
4. Dylan Fraser completed a second Claim Form dated 25 August 2021 which identified the employer as Bemergals of 184 Wheeler Street, Corryong. In the second Claim Form, he again ticked a box that said, "the usual workplace". The Claim Form identified Robert Fraser as the employer contact.

1. Valerie Fraser's Affidavit was misleading as it gave the reader the impression that she was present at 184 Wheeler Street, Corryong, at all material times and when she swore her Affidavit in May 2025.
2. In her Affidavit, she said:

"In regard to my role as the office manager I say that I performed all the office work at Wheeler Steet in Corryong.[13]

All of Dylan's pay was processed in Victoria."[14]

1. In evidence-in-chief, Valerie Fraser corrected paragraph 4(e) of her Affidavit and said that she in fact ran her part of the business remotely from Beaudesert, Queensland.
2. It was not clear when she moved to Queensland or whether she was in Queensland for the entire time during which she was a director of Bemergals (from 1994 to 2018).
3. Despite this lack of clarity, I accept that she had a role in running the business and therefore I accept her evidence about the company structure and pay arrangements, as she was directly responsible for arranging the same.
4. Her evidence regarding the work activities undertaken by Dylan Fraser on a day-to-day basis is problematic.
5. It is unlikely, given her evidence, that she was present to witness the plaintiff's daily activities and the instructions given by Robert Fraser.
6. Valerie Fraser's evidence on these issues may well be as a result of hearsay evidence received from her son and or hearsay evidence from Robert Fraser.
7. Neither party addressed the Court directly on the question of hearsay.
8. The plaintiff submitted that Valerie Fraser gave evidence in a truthful and reliable manner with necessary corrections and concessions made.[15]
9. In contrast, the defendant submitted that no weight should be given to her evidence regarding the plaintiff's account of the work he performed in Corryong. It was submitted that her evidence was untruthful and misleading. It was further submitted that, in any event, Valerie Fraser did not witness the work tasks or the instructions provided by Robert Fraser and therefore her evidence in that regard should not be accepted.[16]
10. If her evidence was based on what her husband told her before he died, the evidence is potentially admissible under s63 of the Evidence Act 2008 (Vic) ("the Evidence Act").
11. In submissions, neither party addressed the Court on:
    • the application of s63[17]
    • whether appropriate notice had been given pursuant to s67 of the Evidence Act; and/or
    • whether the notice requirement should be waived.[18]
12. I am unable to make any findings regarding hearsay, one way or other, given the uncertain state of the evidence. I have significant doubts as to the evidentiary foundation of Valerie Fraser's evidence regarding the daily activities at Corryong. Therefore, I have placed little weight on her evidence as to what activities Dylan Fraser undertook in Corryong and what instructions he may have received.

1. Dylan Fraser asserts that the acceptance of his compensation claim should be seen as an admission by the defendant that his work injury was an injury giving rise to an entitlement to compensation under the Act.
2. It is in this context that the defendant sought to rely upon an Affidavit of Stephanie Ridout, described as a "Senior Legal Manager" at DXC Claims Management Services, formerly Xchanging Integrated Services Pty Ltd, affirmed 3 February 2025. No details are provided as to her qualifications or her level of experience.
3. In paragraphs 7 and 8 of her Affidavit, Ms Ridout expressed the view that Dylan Fraser's claim was accepted in error.
4. Dylan Fraser objected to the Affidavit on the basis of relevance and hearsay. Alternatively, Dylan Fraser sought its exclusion under s135 of the Evidence Act as it was asserted that its prejudicial effects substantially outweighed its probative value.
5. The defendant accepted that the acceptance of Dylan Fraser's claim was a significant admission against its interests in the proceeding but maintained it was not determinative of the issues in dispute in the hearing. It was submitted that the Affidavit was admissible as rebuttal evidence.
6. I am satisfied that the Affidavit should be admitted into evidence for the limited purpose of rebutting any inference which attaches to the acceptance of the plaintiff's claim.

1. Dylan Fraser submitted that it was open to the Court to find that his work was undertaken in two States, Victoria and New South Wales.
2. This submission was made on the basis he often commenced work in Victoria, where he was given instructions about the work to be undertaken and where he would load the trailer/ute before driving to Thredbo, New South Wales, where he would perform work at building sites. It was said he then finished his working day back in Victoria, where he would unload the trailer/ute. It was also submitted he often performed work at the shed, such as cutting steel and timber, and storing supplies.
3. It was also said the Court should accept that Dylan Fraser was "usually based" in Victoria given the amount of preparatory work undertaken at Corryong, he received instructions about the tasks to be performed in both Corryong and Thredbo and as he was paid from Corryong, despite the fact that Valerie Fraser operated out of Beaudesert, Queensland.
4. It was also submitted that the employer's principal place of business was in Corryong.

1. As mentioned above, the defendant confined its submissions to s37(3)(a) of the Act and asserted that Dylan Fraser's employment was solely connected with New South Wales.
2. In support of this submission, the defendant pointed to the following pieces of evidence:
   • Dylan Fraser performed construction work at Thredbo only and did not work on any construction sites in Victoria;
   • He would stay overnight at Thredbo on occasions;
   • Two initial WorkCover Claim Forms identified Thredbo as his "usual workplace".[19] However, his impairment benefits Claim Form identified Thredbo as "away from [his] usual workplace or worksite".[20]
   • He reported for work in Thredbo, not in Victoria;
   • The fact that there may have been a shed which contained building supplies at the Corryong address was of no significant relevance, given Dylan Fraser also regularly bought material and equipment in New South Wales;
   • The location from where he initially received instructions and collected materials happened to be his place of residence and any steps before he commenced getting paid for the day were "akin to a person simply getting ready for work at their home at the start of the working day";
   • The tasks undertaken by him in loading/unloading materials at the shed were trivial and/or not materially related to the State in which he usually worked;
   • The incident occurred in Thredbo;
   • His wages were paid electronically from Beaudesert in Queensland;
   • He was not paid for any of the work tasks performed by him at Corryong and he did not record on his payslips that he started work at 5.45am;
   • The evidence relating to wages and pay records was vague.
3. The defendant also submitted that Dylan Fraser must have considered that Thredbo was his usual workplace because of the ticks he made on the two initial Claim Forms.

1. It is necessary to consider a series of cases which have dealt with s37(3) of the Act, or its predecessor, s80(3) of the Accident Compensation Act, which was in identical terms. These include Wadley v Ron Finemore Bulk Haulage Pty Ltd (Ruling),[21] East v AWMA Pty Ltd & Victorian Workcover Authority ("East"),[22] Hall v Joblink[23] and Nasery v Global Rail.[24]
2. In that regard, I have found the case of East to be most helpful_. East_ was a case in which the worker was employed as an installer of irrigation gates. His contract of employment nominated Cohuna, Victoria as his place of his employment. The employer's head office was based in Cohuna where there was also a factory which manufactured and tested irrigation gates. The plaintiff lived in Deniliquin, New South Wales. The plaintiff attended his employer's depot in Deniliquin to obtain tools and supplies as required but he did not carry out his work at the depot. Rather, his work was carried out "onsite" at various locations in New South Wales, South Australia, Queensland and Victoria, as directed by the employer. No staff were based at the depot in Deniliquin. The plaintiff had access to a telephone and facsimile machine at the depot in Deniliquin. He was supervised from Cohuna. He also attended and worked at the head office and factory at Cohuna where he also received training and job instructions. At times he obtained supplies for his work whilst in Cohuna. The plaintiff was injured on 4 June 2010 whilst working at Carrum Downs in Victoria.
3. In East, Judge Carmody found that the plaintiff usually worked in both Victoria and New South Wales. Judge Carmody accepted that it was relevant that:
   • he had worked in both States equally in the year prior to the work injury,
   • he was directed and supervised from Victoria,
   • he attended the employer's depots in Victoria and New South Wales;
   • his contract of employment identified Victoria as the location of his employment.
4. Having so found, his Honour then had to determine where the plaintiff was usually based for the purpose of s80(3)(b) of the Accident Compensation Act. After considering the authorities on the point, his Honour said that the following considerations were relevant:
   • the location in the contract of employment;
   • the location the plaintiff routinely attended in the course of his employment to receive instruction, material and equipment;
   • the location where the plaintiff reported in relation to his employment; and
   • the location from where the plaintiff's wages are paid.
5. In East, Judge Carmody noted that the location which the plaintiff routinely attended in the course of his employment largely depended on where he was actually working at any given time. Judge Carmody found that the plaintiff would attend the depot at Deniliquin regularly when undertaking Murray Irrigation Project jobs but otherwise would attend the Cohuna office. Judge Carmody found that the plaintiff was required to report to the employer at its head office in Cohuna and that he received instructions and reported to his immediate supervisors either onsite or at the Cohuna office. He concluded that the plaintiff's wages were paid from Victoria.
6. In considering the above factors, Judge Carmody concluded that the plaintiff's employment was connected with Victoria because he was usually based at the employer's head office in Cohuna, therefore satisfying s80(3)(b) of the Act. Judge Carmody said that if there was any doubt about the plaintiff meeting s80(3)(b) of the Act, the fact that the employer's principal place of business was Cohuna, s80(3)(c) of the Act was otherwise satisfied, putting the issue beyond doubt.

1. There was no written contract of employment - which is hardly surprising given the familial arrangement. The information about Bemergals as a company and its operations was limited and has been set out above.
2. The absence of information relating to the formation of the contract of employment, the terms of the contract, the intentions of the employer and the absence of a written contract makes it difficult to reach definitive conclusions.
3. Having said that, there is no evidence that Dylan Fraser and Bemergals intended that Dylan Fraser work "solely" in New South Wales.
4. Whilst the precise terms of Dylan Fraser's employment with Bemergals are unclear, it has not been disputed that he was working exclusively for Bemergals when he sustained the work injury.
5. Contrary to the submissions of the defendant, I find that Dylan Fraser was required to attend to work duties in Corryong which included preparatory jobs such as locating material in the workshop after receiving instructions from his father. He would then load items onto the work truck before the truck was driven to Thredbo.
6. The fact that more of Dylan Fraser's time was spent in New South Wales does not derogate from the fact that he undertook some aspects of his work in Victoria.
7. The location at which a worker routinely attends during the term of his employment to receive directions and collect material or equipment may be highly relevant.
8. I reject the defendant's submission that the tasks involved in Victoria were trivial and not materially related to the State in which Dylan Fraser usually worked. The amount of preparatory work performed in the shed in Corryong cannot be described as trivial - they were essential tasks undertaken in preparation for the work to be conducted in Thredbo.
9. I reject the defendant's contention that the duties undertaken by Dylan Fraser at Corryong were "akin to a person simply getting ready for work at their home at the start of the working day". Dylan Fraser was required to do more than simply get himself ready for work. He was required to attend to work duties as discussed above.
10. In the current case, Dylan Fraser carried out preparatory work in Corryong and worked onsite in Thredbo. He usually worked in both Victoria and New South Wales.
11. The documentary evidence supports the defendant's submission that Dylan Fraser was paid for work undertaken in Thredbo and was not paid for the preparatory work undertaken in Victoria.
12. In contrast, Dylan Fraser gave evidence that his hourly rate was adjusted upwards to cover what he described as his travel time. The payment of an increased hourly rate was supported by Valerie Fraser, who gave evidence that Robert Fraser had instructed her to pay a higher hourly rate. There is no direct evidence that his hourly rate was increased to cover the preparatory work performed in Victoria.
13. It is not possible to reconcile the competing arguments on this point.
14. Dyan Fraser was required to complete timesheets and to submit the timesheets to his father. There was no direct evidence as to where this occurred. I am prepared to infer that the plaintiff submitted his timesheets in Victoria.
15. It appears that copies of the timesheets or summaries of the amounts to be paid were conveyed by Robert Fraser to Valerie Fraser, who then initiated electronic payments in Queensland.
16. The use of electronic banking means that payments can be initiated anywhere in the world.
17. I conclude, based on the evidence, that payment of the plaintiff's wages was paid in Victoria.
18. In determining whether Dylan Fraser usually worked in a State for the purposes of s37(3)(a) of the Act, the Court must have regard to the matters raised in s37(6) of the Act and give each matter such weight as necessary. The matters are:
    • the worker's work history with the employer over the preceding 12 months;
    • the intentions of the worker and employer.
19. When construing the expression "regard must be had" a cautious approach should be used when considering similar expressions found in different legislation which are used in different contexts.[25]
20. I am required to consider and take into account the 12-month work history with the employer prior to the work injury and give it such weight as I determine. However, I am not limited to that 12-month period and can have regard to a greater work history when considering the intentions of Dylan Fraser and the employer.
21. In this case, Dylan Fraser was aged 17 at the time of the work injury. He had worked with Bemergals for approximately one month before the injury.
22. He started his apprenticeship with Kestrel approximately 12 months before the work injury.
23. There was no evidence about the relationship between Kestrel and Bemergals.
24. When working for Kestrel, Dylan Fraser said he worked in both Victoria and New South Wales.[26] He agreed in cross-examination that most of his work for Kestrel was at Thredbo.[27] There was no evidence to suggest that he was involved in any preparation in Victoria whilst working for Kestrel.
25. Given his limited prior work history with Bemergals, and his other work with Kestrel, I have placed little weight on this factor.
26. The defendant did not submit that an adverse inference should be drawn regarding the absence of an Affidavit from Robert Fraser. No explanation was given to explain the absence of such an Affidavit.
27. The absence of any evidence from Robert Fraser however makes it difficult to determine the intentions of Bemergals for the purposes of s37(6) of the Act. The best I can do on the evidence is it appears that Dylan Fraser and Bemergals intended that he would perform work both in Victoria, at Corryong, and in New South Wales, at Thredbo.
28. I find the defendant's submission, that the ticking of two boxes on Claim Forms by the plaintiff indicated that Dylan Fraser believed his usual place of employment was at Thredbo, not edifying or convincing. It presupposes that Dylan Fraser, as a layperson, understood the significance of the ticks and their impact on the interpretation and application of s37 of the Act. Dylan Fraser was quite young when the Claim Forms were completed (aged 20 and 21 respectively) and left school during Year 11. I reject any suggestion that he would have an understanding of the intricacies of the Act.
29. Taking the above matters into account, I find that pursuant to s37(3)(a) of the Act, Dylan Fraser usually worked in both Victoria and New South Wales, as he undertook work duties in both States. In reaching that finding, I reject the defendant's submission that Dylan Fraser's employment was solely connected with New South Wales.

1. The evidence surrounding the work undertaken in each State was murky. There was no direct evidence as to the location of the contract of employment. Given that Dylan Fraser and his father were both in Corryong at the time he commenced employment, and that Bemergals was essentially a family business, putting the evidence at its highest, I am prepared to infer that the contract of employment was entered into in Victoria.
2. Further, the following facts are relevant:
   • Dylan Fraser routinely received instruction, material and equipment in both Victoria and New South Wales;
   • he undertook work onsite in New South Wales;
   • he reported to his father, both in Victoria and New South Wales;
   • he was paid in Victoria.
3. Taking the above matters into account, I find that Dylan Fraser was usually based in both Victoria and New South Wales. I find that Dylan Fraser's employment was connected with both Victoria and New South Wales.

1. It must be borne in mind that Bemergals was a relatively small family business. It conducted business from Corryong, even though there was no clear "head office".
2. The Corryong address was:
   • the address provided to ASIC as the company's principal place of business between 12 September 2000 and 26 June 2024.[28]
   • where electrical and other equipment and building materials were stored;
   • where the trailer and the ute were stored;
   • where initial instructions were provided to Dylan Fraser about the work to be undertaken;
   • where Valerie Fraser received instructions about administrative matters such as payroll from, even though she was based in Queensland.
3. Taking these matters into account, I determine that for the purpose of this proceeding, pursuant to s314 of the Act, that Victoria is connected with Dylan Fraser's employment with Bemergals.

1. As Dylan Fraser has established that his employment was connected to Victoria, he has leave to commence proceedings for pain and suffering damages.
2. I will hear from parties on the form of orders and the question of costs.

[1] After the work injury, Dylan Fraser retrained as a driller and obtained employment with Deep Core Drilling

[2] Plaintiff's Exhibit P1, Plaintiff's Court Book ("PCB") 55-59; 27-41

[8] Defendant's Exhibit D2; Defendant's Amended Court Book ("DCB") 6-11

[13] Plaintiff Exhibit 2: PCB 12, paragraph 4(e)

[14] Plaintiff Exhibit 2: PCB 15, paragraph (n)

[15] Plaintiff's written submissions, paragraph 9

[16] Defendant's submissions, paragraphs 18-19

[17] In answer to a query from the Bench during the cross-examination of Valerie Fraser, the defendant said that s63 went to a question of weight: Transcript ("T") 54, Line ("L") 7

[18] Section 67(4) Evidence Act

[19] Defendant Exhibit D3 and Plaintiff Exhibit P4

[21] [2013] VSC 102

[22] [2013] VCC 637

[23] [2023] VMC 8

[24] [2024] VMC 8

[25] For example R v Hunt, Ex Parte Sean investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329; R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 157 CLR 327 at 333; In the Marriage of Bendeich [1992] FamCA 114; (1992) 110 FLR 418 at 424-425

[28] Part of Exhibit 2: PCB 19