I.C. Formwork Services Pty Limited v Moir

Legislation Cited: Court Procedures Rules 2006 (ACT), rr 50, 1521 Workers Compensation Act 1951 (ACT), ss 36A, 36B, 182B, 182D, pt 9.2 Workers Compensation (Cross-border Workers) Amendment Act 2014 (ACT)

Cases Cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 Avon Product Pty Ltd v Falls [2010] ACTCA 21; 5 ACTLR 34 Dillon v RBS Group (Australia) Pty Limited [2017] FCA 896; 252 FCR 150 Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 Evans v Marmont (1997) 42 NSWLR 70 Ferguson v WorkCover Queensland [2013] QSC 78 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; 196 FLR 361 Insurance Australia Ltd v Motor Accidents Authority of New South Wales [2007] NSWCA 314 IC Formwork Services Pty Ltd v Moir [2020] ACTCA 4 International General Electric Co of New York Ltd v Customs and Excise Commissioners [1962] Ch 784 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83; 8 DDCR Medici Clinics (Australia) Pty Ltd and Medici Clinics Pty Ltd v Patel [2014] ACTSC 29 Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246 R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 Tapia v Woolworths [2016] ACTSC 129; 310 FLR 265 Telstra Corporation Limited v State of Queensland [2013] FCA 1296; 217 FCR 181 The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Warramunda Village Inc v Pryde [2002] FCA 250; 116 FCR 58

Texts Cited: Australian Capital Territory Parliamentary Debates, Legislative Assembly, 25 September 2014

Parties: I.C. Formwork Services Pty Limited (Appellant) Nigel James Moir (Respondent)

Representation: Counsel A Muller (Appellant) C Erskine SC and J Sainty (Respondent)

Solicitors Minter Ellison (Appellant) Blumers Personal Injury Lawyers (Respondent)

File Number: ACTCA 38 of 2019

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 30 August 2019 Case Title: Moir v I.C. Formwork Services Pty Limited Citation: [2019] ACTSC 246

MOSSOP J:

Introduction

1. The respondent was an employee of the appellant. He alleges that he was injured on 26 May 2015 as a formwork carpenter at a site at Bawley Point in New South Wales (NSW). He commenced proceedings against his employer claiming common law damages for negligence.

2. In those proceedings a judge of the Supreme Court (the primary judge) was asked to determine, as a preliminary point, whether the substantive law applicable to that claim was that of the Australian Capital Territory (ACT). This is an exercise which is required by s 182D of the Workers Compensation Act 1951 (ACT) (WC Act), which requires that a common law claim against an employer for damages arising out of a work related injury be determined in accordance with the substantive law of the “Territory or State of connection”. That expression is one which governs the law applicable to claims under the WC Act. The effect of the provision is to ensure that common law claims are determined in accordance with the substantive law of the jurisdiction in which statutory workers compensation is payable. The primary judge found that the relevant substantive law was that of the ACT: see Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246. The employer has appealed against that decision.

The relevant statutory provisions

3. The most relevant statutory provisions are ss 36A, 36B and 182D of the WC Act. As at the date of the injury (26 May 2015), those provisions were as follows:

36A Meaning of Territory or State of connection etc (1) In this Act: Territory or State of connection, in relation to the employment of a worker, means— (a) the Territory or State with which the employment of the worker is connected, as determined under this part; and (b) if this Act mentions the Territory or State of connection determined under the law of a State for that employment—the State of connection for that employment, or the Territory or State of connection for that employment, within the meaning of the law of the State. Note State includes the Northern Territory (see Legislation Act, dict, pt 1). (2) In this part: employer, in relation to a Territory or State, includes an employer within the meaning of the workers compensation law of the Territory or State. employment, in relation to a Territory or State, includes employment within the meaning of the workers compensation law of the Territory or State. worker, in relation to a Territory or State, includes a worker within the meaning of the workers compensation law of the Territory or State.

36B Employment connection test (1) Compensation under this Act is only payable if the ACT is the Territory or State of connection. (2) The fact that a worker is outside the ACT when injured does not prevent compensation being payable under this Act if the ACT is the Territory or State of connection. (3) A worker’s employment is connected with— (a) the Territory or State where the worker usually works in the employment; or (b) if no Territory or State, or no single Territory or State, is identified by paragraph (a)—the Territory or State where the worker is usually based for the purposes of the employment; or (c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b)—the Territory or State where the employer’s principal place of business in Australia is located. (4) For a worker working on a ship, if no Territory or State, or no single Territory or State, is identified by subsection (3), the worker’s employment is, while working on the ship, connected with— (a) the Territory or State where the ship is registered; or (b) if the ship is registered in more than 1 Territory or State—the Territory or State where the ship most recently became registered. (5) If no Territory or State is identified for a worker by subsection (3) or (4), the worker’s employment is connected with the ACT if— (a) the worker is in the ACT when injured; and (b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia. (6) In deciding whether a worker usually works in a Territory or State— (a) regard must be had to the following: (i) the worker’s work history with the employer over the previous 12 months; (ii) the worker’s proposed future working arrangements; (iii) the intentions of the worker and employer; (iv) any period during which the worker worked in a Territory or State (a relevant place) or was in a relevant place for the purposes of employment, whether or not the worker is regarded as working or employed in the relevant place under the workers compensation law of the relevant place; but (b) regard must not be had to any temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months. Example—worker usually works in a single jurisdiction Emma is employed as an electrical trades assistant with a NSW-based employer. Emma performs all of her employment duties on worksites in the ACT, taking her own vehicle to work and providing her own tools and equipment. Emma does not attend her employer’s premises in NSW in the course of her day-to-day duties and receives all of her instructions from the relevant project manager on sites in the ACT. For s (3) (a), Emma usually performs work for her employer in the ACT and her Territory or State of connection is the ACT. Example—worker usually works in more than one jurisdiction An employer carries on business as an interstate bus operator from premises in the ACT. Ray is engaged by the employer as a bus driver, mainly driving buses between Canberra and Sydney, NSW, but also driving buses between Canberra and Melbourne, VIC. Occasionally Ray drives charter buses entirely within the ACT for the employer. For s (3) (a), Ray usually works in the ACT, NSW and VIC. As s (3) (a) does not decide Ray’s Territory or State of connection, s (3) (b) needs to be considered. Note An example is part of the Act is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). (7) In deciding whether a worker is usually based in a Territory or State regard must be had to the following: (a) if the employer provides a place from which the worker is expected to operate—that place; (b) if a place is stated in the worker’s contract of employment with the employer—that place; (c) the place from which the worker routinely receives day-to-day instructions from the employer; (d) the place where the worker attends to collect material for the purposes of their employment; (e) the place where the worker reports for administrative, human resource and other issues related to the workers’ employment with the employer. Example—worker usually based in a single jurisdiction Jenny is a sales representative for XYZ. Each morning Jenny is required to attend a warehouse in NSW to collect her employer’s products, which she is then required to distribute to various retail outlets in NSW and the ACT. Jenny uses a vehicle supplied by her employer, which she garages at her home in NSW. At the end of each day Jenny is required to return any unsold merchandise to the warehouse in NSW. Jenny works without day-to-day supervision. Jenny’s immediate manager is located in XYZ’s ACT office and is the person to whom she is required to send reports and time sheets and to whom she reports verbally by telephone from time to time. Jenny sends all written correspondence to her manager via a facsimile located at her home in NSW. All invoice books which Jenny needs to carry out her duties are mailed to her home in NSW from where she prepared all documentation related to her employment. For s (3) (b), Jenny is usually based in NSW for the purposes of her employment with XYZ. The employer’s NSW warehouse is the place provided by XYZ that Jenny is expected to operate from. Example—worker is usually based in more than one jurisdiction Paul is employed by an interstate trucking company that transports textiles across Australia. Paul is supplied with a truck for the purposes of his employment and is permitted to garage it at his home in the ACT while not in use. Paul transports goods between the ACT, NSW and QLD. His contract of employment states that he is employed to undertake transporting services across each of these jurisdictions. Paul routinely receives instructions from each of the depots he stops at in the ACT, NSW and QLD and receives ad hoc instructions via radio while in transit. For s (3) (b), Paul is not usually based in any single Territory or State. As s (3) (b) does not decide Paul’s Territory or State of connection, s (3) (c) needs to be considered. (8) In deciding where the employer’s principle place of business in Australia is located regard must be had to the following: (a) the place where the employer conducts the main part or majority of its business; (b) the address registered on the Australian Business Register in connection with the employer’s ABN; (c) if the employer is not registered for an ABN—the Territory or State registered by ASIC as the jurisdiction in which the employer’s business or trade is carried out; (d) if the employer is not registered for an ABN or with ASIC—the employer’s business mailing address. (9) Compensation under this Act is not payable in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker’s employment. (10) In this section: ABN—see the A New Tax System (Australian Business Number) Act 1999 (Cwlth), section 41. ASIC means the Australian Securities and Investments Commission under the Australian Securities and Investments Commission Act 2001 (Cwlth). Australian Business Register—see the A New Tax System (Australian Business Number) Act 1999 (Cwlth), section 41. ship means any kind of vessel used in navigation by water, however propelled or moved, and includes all of the following if used wholly or primarily in navigation by water: (a) a barge, lighter or other floating vessel; (b) an air-cushioned vehicle, or other similar craft. Territory or State, in a geographical sense, includes a Territory’s or State’s relevant adjacent area as described in schedule 2. …

182D Applicable substantive law for damages claims The substantive law of the Territory or State of connection governs— (a) whether or not a damages claim can be made in relation to a work-related injury to a worker; and (b) if a damages claim can be made—the determination of the damages claim.

4. The content of the concept of “substantive law” is affected by s 182B. “Damages claim” is defined in s 182C.

5. The examples in what are now subss 36B(6) and (7) were inserted into the section by the Workers Compensation (Cross-border Workers) Amendment Act 2014 (ACT), which came into effect on 6 November 2014. The presentation speech for the relevant bill made it clear that these amendments reflected nationally agreed guidance material designed to make it easier to determine in which jurisdiction workers compensation insurance should be taken out: ACT Legislative Assembly, Hansard, 25 September 2014 at 3207-3208.

The decision below

6. The primary judge found the relevant facts as follows:

7. It is first of all necessary to give some brief history. The defendant is a company that provides formwork services to the building industry. The plaintiff is a formworker who over the years has become very well respected and regarded in his work. 9. The plaintiff seems to have started working for the defendant in Sydney in about 1999. He also worked on the Olympic Games site in Sydney for the defendant. Shortly thereafter however he moved to the Canberra area (although perhaps residing in NSW) and worked predominantly in the ACT. 10. The plaintiff initially worked on a subcontract basis, although as I understand it, exclusively for the defendant, and then in about 2009 became a full-time employee of the defendant. 11. In 2012 the plaintiff worked for approximately a month in Bawley Point. At the end of May 2014 the plaintiff injured his left ankle while working at a jobsite in the ACT. He was off work for about a week and then commenced a graduated return to work at the defendant’s premises in Queanbeyan. 12. The graduated return to work was part of a rehabilitation process and in my view could not be considered to be the plaintiff doing his usual work. 13. There was some evidence to suggest that prior to 2016 the defendant had an office in Hume in the ACT. I think this is probably incorrect and that its base was in Queanbeyan until the defendant moved its ‘yard’ to Hume in 2016. 14. On 2 September 2014 the plaintiff had surgery to his left ankle. About five weeks later he returned to light work in at the Queanbeyan premises. 15. By this time the defendant had been contracted to do some obviously fairly extensive work in Bawley Point. It is important to note that, as a general statement, the majority of the defendant’s business was carried out at work sites in the ACT. 16. The work in New South Wales required a high level of expertise. For this reason the defendant requested the plaintiff to join the team working at Bawley Point. By this time the plaintiff was married with three children. The natural consequences of his reduced wages, while on workers compensation payments arising from the ankle injury, meant that the family finances were stretched. The work in New South Wales paid well and, with the consent of his wife, the plaintiff decided to take up that work. 17. The plaintiff commenced in New South Wales on 4 November 2014. He continued working until the end of year break, and then resumed in 2015. By this time his enthusiasm for the job had waned, mostly because of the needs of his family for him to be present with them. As a result he informed his employer that his “wife was struggling” and he would like to return to work in the ACT. There is no dispute that a good deal of work was available for him in the Territory. 18. There is some dispute in the evidence about who the plaintiff spoke to and what he said, and when. I accept the plaintiff’s evidence that very soon after returning to work in New South Wales in 2015, he expressed his desires to return to the ACT. 19. As noted above, the plaintiff was injured on 26 May 2015. He stopped work the next day and then attended Milton Hospital on 28 May. He came back to work, at Bawley Point, on 9 June 2015 and remained working until 4 July 2015 when he was certified as unfit to work. 20. The plaintiff has worked since but only in the ACT.

8. He then set out in ss 182D and 36B.

9. His Honour said that the case could be resolved within the confines of s 36B(3)(a). He made the following points:

(a) In the 12 month period ending on 6 July 2015 the worker had worked in NSW for 35 weeks: [24].

(b) Both parties submitted that the fact that more than six months had been spent working outside the ACT in the previous 12 months did not exclude a conclusion that the usual place of work was the ACT: [25].

(c) The second reading speeches say “at best, working outside of a State or Territory for more than six months will [not] go beyond raising a rebuttable presumption that a different State or Territory is a worker’s usual place of work”: [26].

(d) Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; 196 FLR 361 (Hanns) held that “The State or Territory of a worker is to be determined by first looking to the customary or regular place in which the work is carried out” but in certain circumstances “the temporal bounds of the period to be looked at can exceed six or 12 months”: [27].

(e) “The particular circumstances that are relevant here are the plaintiff’s continued employment with the defendant over many years in which he invariably worked in the ACT. His usual place of work for the defendant, taken in the context of his employment with the defendant, must lead to a conclusion that his usual place of work was the ACT”: [28].

(f) The position would have been different if he had only worked for the defendant for one or two years or if he had established some sort of permanent residency or intention to reside at Bawley Point. Instead he worked at Bawley Point to meet his current financial circumstances and intended to return to work in the ACT as soon as practicable or when the demands of his family required it: [29].

(g) The worker proposed that his future working arrangements would be in the ACT and the employer’s position was that he could do so if he wished: [30].

(h) Whether, in accordance with Tapia v Woolworths [2016] ACTSC 129; 310 FLR 265 (Tapia), a temporary arrangement of a duration longer than six months created an additional usual place of employment had to be determined in the light of the contract of employment and other circumstances surrounding the employment. The circumstances of the worker’s employment “taken against the background of the whole of his history of employment with the [employer], lead to a conclusion that his usual place of work was in the ACT”: [32].

9. His Honour’s orders, as recorded in his judgment at [34], were as follows:

10. I make the following declaration: (a) The Court finds that the plaintiff usually worked in the Australian Capital Territory and therefore the common law workers compensation claim arising out of the negligence of the defendant should be determined by the law of the Australian Capital Territory. (b) The defendant is to pay the plaintiff’s costs of the application.

Grounds of appeal

10. The grounds of appeal that were pressed are:

(a) His Honour erred in finding that the respondent, plaintiff (herein, plaintiff) usually worked in one place only, being the Australian Capital Territory (ACT); (b) His Honour erred in his application of the cascading test under s 36B of the Workers Compensation Act 1951 (ACT) (WC Act) by failing to consider whether there was a “clear answer” to the question of where the plaintiff usually worked; … (g) His Honour should have determined that the plaintiff usually worked in both the ACT and NSW at the time of the injury; (h) in the alternative to 4(g), His Honour should have concluded that the duration of the plaintiff’s employment in NSW in the 12 months preceding the injury made the question of where the plaintiff usually worked sufficiently unclear, such that regard ought to have been had to the subsequent limbs of the cascading test set out in s 36B; (i) had His Honour gone on to consider the second and third limbs of the Cascading test under s 36B, then he would have found that New South Wales was the State of connection of the plaintiff’s employment, and that the substantive law of NSW should apply to determine the plaintiff’s claim for damages.

11. The order sought by the appellant is: [A]n order be made that the substantive law of NSW be applied to determine the plaintiff’s damages claim in accordance with sections 182D and 36B of the Workers Compensation Act 1951 on the basis that at the time of injury, NSW was the state of connection of the plaintiff’s employment.

12. The respondent did not file a Notice of Contention or a Notice of Cross-Appeal.

Procedural history

13. It is necessary to say something about the procedure adopted below, as it affects the approach that this court should take to the determination of the appeal.

14. In the court below the respondent had, by Application in Proceeding dated 21 March 2019, sought orders that included the following:

15. That the Court find that the plaintiff usually worked in the Australian Capital Territory and therefore the common law workers compensation claim arising out of the negligence of the defendant should be determined by the law of the Australian Capital Territory. 2. In the alternative, the court find that the plaintiff was usually based in the Australian Capital Territory and therefore the common law workers compensation claim arising out of the negligence of the defendant should be determined by the law of the Australian Capital Territory. 3. In the alternative, the court find that the employer’s/defendant’s principal place of business is located in the Australian Capital Territory and therefore the common law workers compensation claim arising out of the negligence of the defendant should be determined by the law of the Australian Capital Territory.

16. As will be apparent, what was sought were certain “findings”. This was done by interlocutory application. It is not at all clear what procedure was actually contemplated by the respondent when making an interlocutory application in these terms.

17. Although at the hearing below his Honour at one point raised the question of whether the issue he was being asked to determine was a factual matter that should be addressed at trial, neither the parties nor his Honour addressed that issue further. There was no discussion of the appropriateness of the making of “findings” in accordance with the Application in Proceeding.

18. Ultimately, his Honour’s published reasons appear to state that he made a declaration in the terms of the first “finding” that had been sought by the respondent: see [9] above. Clearly his Honour could not have intended to make a declaration in relation to costs, as the orders in his published reasons suggested. Unfortunately, his Honour’s orders were not perfected. The process of filing and entering orders is one that should not have been ignored. It might have resolved some of the uncertainty surrounding the orders made by the primary judge. The perfected orders should have been required to be included in the appeal papers.

19. If his Honour was merely asked to make a “finding”, then that is a procedure which could not give rise to an appellable order. To embark upon an interlocutory process which simply led to a finding without an order would have been inappropriate in the absence of some statutory compulsion to do so.

20. If, as a matter of substance, what the respondent was seeking was a declaration, then it is axiomatic that there is no such thing as an interlocutory declaration. In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [128] Gummow and Hayne JJ said: ““Interlocutory declaration” is a form of order not known to the law yet that, in effect, is the nature of the order that was made, expressed, as it was, in declaratory terms”. One of the authorities cited by their Honours for that proposition was Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1, in which a five member bench of the Full Court of the Federal Court allowed an appeal against declarations made by a judge at first instance on a preliminary question. The declarations were to the effect that the applicant's claims were statute barred. Stressing the necessary finality of a declaration, Beaumont J, with whom other members of the court agreed, cited as the applicable principle the statement of Upjohn LJ in International General Electric Co of New York Ltd v Customs and Excise Commissioners [1962] Ch 784 at 789:

[A]n order declaring the rights of the parties must in its nature be a final order after a hearing when the court is in a position to declare what the rights of the parties are, and such an order must necessarily then be res judicata and bind the parties forever, subject only, of course, to a right of appeal.

20. A useful explanation of the position is given by Finkelstein J in Warramunda Village Inc v Pryde [2002] FCA 250; 116 FCR 58 at [68]:

An order of a court is either final or interlocutory: Standard Discount Co v Otard de la Grange (1877) 3 CPD 67, 69 per Bramwell LJ. Thus if an order is not interlocutory it must be final and, conversely, if it is final it cannot be interlocutory. According to existing law the only declaration that may be granted is a final and conclusive declaration: Inland Revenue Commissioners v Rossminster Limited [1980] AC 952, 1014 per Lord Diplock, 1027 per Lord Scarman; Clarke v Chadburn [1985] 1 WLR 78, 81 per Megarry VC. The reason for this is that a declaration declares the rights of parties and it would be illogical for a court to declare that a person has certain rights on one day and different rights on the next. Put another way, an interlocutory declaration is an inherently contradictory notion: International General Electric Company of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784. Accordingly, a declaration must produce a state of finality in relation to a particular issue, whether or not there are other issues in the case that still require resolution by a final order. See also Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [143]; Telstra Corporation Limited v State of Queensland [2013] FCA 1296; 217 FCR 181 at [31]-[39]; Dillon v RBS Group (Australia) Pty Limited [2017] FCA 896; 252 FCR 150 (Dillon) at [23]-[33].

21. The necessity that declarations be final has not been seen as an insuperable barrier to the separate determination of questions in proceedings. Where a hearing is split so as to deal separately with a discrete issue, then it is open to resolve that issue on a final basis by making a declaration: Dillon at [29]. By doing so, that aspect of the proceedings is finally determined and the controversy between the parties quelled to that extent.

22. In the present case, if a declaration was to be sought as final relief then it would have needed to have been included in the Originating Claim: Court Procedures Rules 2006 (ACT) (CPR) r 50. That would have provided a jurisdictional foundation for the seeking of a declaration. Even in the absence of such a claim, if it was seen to be desirable by a party to resolve the question arising on the pleadings as to which substantive law was applicable, then that might appropriately have been done under CPR r 1521. If that had been done it would have been open to the court to resolve, on a final basis, the separate issue so identified by the making of a declaration.

23. Had an application been made for the determination of a separate question, then consideration could have been given to the issues that usually arise on such applications. Whether or not it was appropriate to determine that separate question would be influenced by whether the determination of any necessary facts would cut across those that would ordinarily be determined at the trial and whether it might lead to witnesses being cross-examined on two separate occasions: Medici Clinics (Australia) Pty Ltd and Medici Clinics Pty Ltd v Patel [2014] ACTSC 29 at [8]-[17]. Because no application under r 1521 was made, none of these issues were canvassed. Such an application would have provoked consideration of what order the court could make to resolve that separate question and hence whether and how any appeal might be brought from that decision. None of this occurred.

24. The issue of the status of his Honour’s declaration was then considered upon an application for leave to appeal and an extension of time in which to appeal: see IC Formwork Services Pty Ltd v Moir [2020] ACTCA 4. The appellant applied for leave to appeal and an extension of time in which to appeal on the premise that the decision made by the primary judge was interlocutory. It then contended that leave to appeal was not, in fact, necessary because the order that his Honour made was a final order. Murrell CJ, who dealt with the application, found as follows:

25. The applications are necessary only if the primary judge’s decision was an interlocutory decision. An appeal may be brought against an interlocutory decision of the court constituted by a single judge only with leave of the Court of Appeal which, for the purpose of considering leave, may be constituted by a single judge: Supreme Court Act 1933 (ACT) ss 37E and 37J. 9. The applicant submitted that the declaration was a final order because it “finally disposed of the rights of the parties (subject to appeal)”. 10. I disagree. 11. Applying the approach that is generally taken, the declaration merely determined the jurisdiction in which the respondent was entitled to claim workers compensation; it did not conclusively decide the rights of the parties as it did not decide whether the respondent was entitled to compensation or the quantum thereof. Consequently, the declaration was an interlocutory order. 12. But any question in this regard is unambiguously answered by the terms of s 182B(2) of the Workers Compensation Act, which provides: 182B Meaning of substantive law (2) However, substantive law does not include a law prescribing rules for choice of law.

26. In my respectful opinion this approach is incorrect, for two reasons:

(a) First, for the reasons given above, there is no such thing as an interlocutory declaration. If, as the primary judge’s published reasons indicate, he made a declaration, then it could not have been interlocutory. That no declaration had been sought by the respondent in his Application in Proceeding would not affect this conclusion.

(b) Second, s 182B does not answer any relevant question. Section 182B provides an extended definition of “substantive law” for the purposes of Pt 9.2 of the WC Act. The expression “substantive law” is significant because it appears in s 182D. A legislative definition of substantive law was important to ensure that all relevant aspects of the law of a State or Territory that affected the extent of damages recoverable would be applied and that issues of characterisation of different aspects of the law of different States or Territories would not arise: cf John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 at [97]-[100]. Section 182B(2) ensures that the law prescribing rules for choice of law is considered procedural, so that there is no question as to what choice of law rules are used to determine the relevant substantive law. Otherwise, if there was a dispute about which substantive law was to be applied, there would also be an unresolvable problem about which choice of law rules were to be applied to resolve that issue.

That, for the purposes of the statute, choice of law rules are characterised as procedural and not substantive, does not provide an answer to whether or not a declaration made about the applicable law is final or interlocutory. Necessarily, it must be final.

26. Ultimately, the incorrect characterisation of the nature of the order appealed from did not matter because her Honour granted leave to appeal. However, the incorrect characterisation of the order appealed from would alter the consequences for the parties of the order appealed from.

27. In summary, the position is as follows:

(a) the respondent, by the Application in Proceeding, sought “findings” not orders;

(b) no order was made for the separate determination of any question in the proceedings;

(c) the primary judge made a declaration in response to that Application in Proceeding; and

(d) the declaration was necessarily a final order not an interlocutory order.

28. No complaint is made by either party about these issues in the present appeal. However, the inadequacies of the procedure adopted in the court below and the nature of the order appealed from may influence how this court deals with the appeal before it.

Grounds (a) and (g)

Authorities

29. These are the grounds of appeal that relate directly to the primary judge’s finding that the respondent “usually worked” in the ACT and did not usually work in NSW.

30. Before considering the grounds of appeal relating to where the respondent “usually works”, it is useful to have regard to the authorities on that issue.

31. Hanns involved a bus driver. He was based in Canberra. He mainly drove buses between Canberra and Sydney but also on occasions between Canberra and Melbourne and Canberra and Thredbo. Very occasionally he drove charter buses entirely within the ACT. He was involved in an accident, which led to his workers compensation claim, which occurred when he was driving the Sydney-Brisbane route.

32. At the relevant time the legislation was not in its current form but still incorporated a cascading three-part test very similar to that in the present WC Act. The employer’s contention was that the word “usually” should be interpreted as “more often than not”. However, Gray J said (at [22]) that such an interpretation was inconsistent with the definitions that his Honour had referred to: Notions of usage that embrace that which is customary, frequent or regular do not imply a quantitative test as the magistrate apparently thought. Nor can I accept the magistrate’s reasoning that as “usually” is not a synonym for “invariably” therefore it must involve a quantitative test.

33. Later, his Honour said: “I consider that by giving “usually” its more obvious meaning of habitual or customary, or that of “in a regular manner”, the test posited by [the relevant sections] is relatively simple and straight forward”: [26].

34. In Avon Product Pty Ltd v Falls [2010] ACTCA 21; 5 ACTLR 34 (Avon), the Court of Appeal addressed a case in which a District Sales Manager for Avon had for the last three years been responsible for managing a district entirely within the ACT. For the last 12 years she had lived in Jerrabomberra, a suburb of Queanbeyan just to the east of the ACT. Most of her working time was spent in the ACT supervising her agents, but a significant proportion of her time was spent on recordkeeping and other administrative work, which she did mainly at her home in NSW. The evidence established that she would spend eight to 10 hours per week performing her duties in the ACT and a further two to three hours per day performing book work at her home in Jerrabomberra, although she also did some book work in the ACT. Avon had provided her with a fax machine and a dedicated telephone line at her home.

35. The court found that the worker usually worked in the ACT and also usually worked in NSW. It did not matter that she could have chosen to do all of her planning and book work in the ACT, because, as a matter of fact, she routinely used the facilities provided by her employer in NSW to perform required parts of her work: [28].

36. The court said that s 36B(3)(a) does not involve consideration only of where a worker is “required” to work. The most relevant guide is “the worker’s work history with the employer over the previous 12 months”. Reference to employer requirements in the examples in the explanatory memorandum cannot detract from the plain meaning of s 36B(3)(a) of the Act: [29]. The test is whether work is done, rather than where it is required to be done: [30]. As a consequence, the court found that the worker usually worked in both the ACT and NSW. The court went on to consider where she was usually based for the purposes of s 36B(3)(b) and ultimately concluded that the “State or Territory of connection” was determined by s 36B(3)(c).

37. Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 (Tamboritha) involved a remotely operated vehicle supervisor who worked pursuant to a series of separate contracts for a contractor that provided services involving the operation of sub-sea remotely operated vehicles. He was injured in a fire on a ship in Victoria. Over the previous six years the worker had spent 74.5% of his time in Western Australia, 20.9% of his time in Victoria and 4.6% of his time outside Australia: [44]. In the 12 month period prior to the accident the worker worked in Victoria for 64% of the time and in Western Australia for 36% of the time: [69].

38. Commissioner Herron considered that a provision equivalent to that in the ACT required regard to be had to the work history of the worker over the preceding 12 months, but also allowed consideration of work beyond that 12 month period: [60]-[62]. He was also entitled to take into account the intentions of the worker and the employer. Given that the worker was engaged on a job by job basis and the location of those jobs varied, there was no intention on the part of the parties that the worker usually work in any one particular state or location: [72]. The Commissioner pointed out that because each period of work was a separate contract no issue of a “temporary arrangement” arose. That was because each period of work constituted a separate period of employment and hence an engagement on a particular ship was not a temporary arrangement but was permanent, because the worker was required to work on the ship for the duration of that particular job: [73]. The Commissioner found that he was therefore unable to determine that the worker usually worked with the employer in one single state.

39. In case he was wrong about being able to consider the broader work history, the Commissioner indicated that if he were only able to consider the immediately preceding 12 month work history, then the fact that the majority of the worker’s time was spent in Victoria was not sufficient to reach the conclusion that Victoria was the state in which the worker usually worked. That was because “[the] expression “usually works” is not synonymous with where the worker “works for the majority of the time””: [76].

40. Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83; 8 DDCR 535 (Martin) involved a worker who was engaged in agricultural jobs on different properties in NSW and Queensland. The employer contended that the worker usually worked in Queensland. The evidence was not particularly clear. In the three years prior to the worker’s injury she had either three or four periods of employment with the employer. Those involved undertaking different work at different locations and with different rates of remuneration. The Commission concluded that the worker’s employment was intermittent and that she “sometimes worked in Queensland and sometimes in New South Wales”: [71]. The evidence of the parties’ intention was not useful: [72]. As with Tamboritha, the worker’s separate contracts were not temporary arrangements and therefore had to be taken into account. The Commission concluded that the worker usually worked in two states and hence it was necessary to move on to the other elements of the cascading test.

41. Ferguson v WorkCover Queensland [2013] QSC 78 involved a delivery driver for the plumbing supplier Reece Pty Ltd. He was based at the warehouse in Tweed Heads in NSW. He started and finished his delivery runs at the Tweed Heads branch. In the months leading up to his injury he worked predominantly in Queensland. 70 to 80% of his deliveries were in Queensland. He was injured while making a delivery in NSW. He contended that he did not “usually” work in NSW. The Queensland legislation incorporates a cascading three-part test which is relevantly the same as that in the WC Act. Consistent with the approach taken by Gray J in Hanns, Applegarth J said that the statutory context of the expression “usually works” requires it to be interpreted in a way which would permit, in appropriate circumstances, the conclusion to be drawn that the worker usually worked in more than one state: [21]. His Honour reviewed the relevant authorities of Hanns, Tamboritha, Martin and Avon, and adopted a formulation consistent with that adopted by Gray J in Hanns, saying that a worker will work in more than one state if the worker “habitually or customarily” works in the second state: [34]. He concluded that the worker worked in both Queensland and NSW. In relation to his NSW work, that was “customary, common and frequent” and “not unusual”: [58]. Deliveries to NSW were “a common, indeed regular, feature of his work”: [58].

42. In Tapia the worker was employed by Woolworths as a Duty Manager at a Woolworths supermarket in Canberra. After 11 months he signed a new contract as part of the Retail Operations Graduate Program. This program was to be conducted over a two year period and divided into three phases. He then worked in different sections of Woolworths supermarkets, spending two weeks in a Canberra store, six weeks in a Queanbeyan store and two weeks in a different Canberra store. He then suffered an injury to his back. The worker contended that he was usually employed in the ACT but not usually employed in NSW. He contended that the six week period during which he was undertaking training rotations of the Queanbeyan store was a temporary arrangement which must be ignored for the purposes of determining the Territory or State of connection. Having examined the legislative history, I concluded that the concept of a “temporary arrangement” is designed to cover the situation where there has been a usual place of employment but, because of a temporary arrangement to work elsewhere, the conclusion is now open that the second place is (either solely or additionally) a usual place of employment: [32]. I identified the appropriate approach as being to work out where the worker usually works having regard to all the facts. It is then necessary to identify any temporary arrangements. Those arrangements must be “a temporary departure from what would otherwise be the usual state of affairs”: [35]. Once those are excluded then it is necessary to work out where the worker usually works without regard to any such arrangements.

43. I recognised that different outcomes could result depending upon the temporal frame of reference that was adopted: [41]. Even though the statute requires a 12 month period to be considered, that is not mandated as the only appropriate frame of reference: [41]. In the circumstances of that case, the change in contractual arrangements from ordinary employment as a Duty Manager to employment as part of the graduate program was central to the outcome. The new contract entered into as part of the graduate program established a “new normal” which would involve rotations between stores in NSW or the ACT and hence it was not possible to characterise the time in the NSW store as being a temporary departure from a usual state of affairs: [43]. Because those periods in NSW had to be taken into account, it was not possible to say that he usually worked only in the ACT.

44. The following propositions about the operation of s 36B(3)(a) can be drawn from the above authorities:

(a) The test involves an enquiry into what is habitual or customary, rather than where the majority of work time is spent: Hanns.

(b) The test does not focus upon where the worker is “required” to work but instead on where the worker actually works: Avon.

(c) If there are discrete contracts of employment at different locations, each of those will not be considered to be a temporary arrangement: Tamboritha; Martin.

(d) If working in different jurisdictions is a usual part of the worker’s employment, then each period in a jurisdiction will not amount to a “temporary arrangement”: Tapia.

Decision

45. The appellant contended that, while the ACT was a usual place of work, so too was New South Wales. The respondent sought to uphold the primary judge’s conclusion that the ACT was the only jurisdiction in which the respondent usually worked.

46. The difference between the approach adopted by the primary judge and that contended for by the appellant depends upon the frame of reference adopted. If one adopts as a frame of reference the whole of the history of employment of the respondent by the appellant, then it is possible to reach the conclusion that it was not usual for the respondent to be working in NSW.

47. On the other hand, if the frame of reference is the previous 12 months then it is much easier to reach the conclusion that it was usual for the respondent to work in NSW as well as in the ACT. As the primary judge put it in the course of argument, 35 weeks out of 52 weeks has a different complexion than 35 weeks out of 520 weeks.

48. By what legal method is it appropriate to determine the relevant frame of reference? One approach is to say that the law requires no particular frame of reference. It is a matter for the trial judge to work out, having regard to the particular circumstances of the case, what an appropriate frame of reference is. The question on appeal would then be to ask whether any error has been established. If the statute does not mandate any particular frame of reference, then a court of appeal would be reluctant to find any error if a particular frame of reference is adopted and the trial judge has addressed relevant considerations for that frame of reference. This approach was consistent with the submissions of the respondent, which placed particular emphasis on the decision being one involving an “evaluative judgment” in relation to which, consistently with the approach articulated in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301, the court on appeal would be slow to find error.

49. The alternative approach is to find that the statutory framework provided by s 36B(6) compels regard to be had to the 12 month period prior to the date in question and, directly or indirectly, requires that period to be the focus of the enquiry as to where the worker usually works. This arises principally from the specific reference in that subsection to the worker’s work history with the employer over the previous 12 months.

50. In my view, the latter approach is the appropriate one. My reasons for that conclusion are as follows:

(a) The purpose of the employment connection test is to provide a means of allocating responsibility for workers compensation insurance and common law liability to a single jurisdiction within Australia.

(b) The cascading test in s 36B(3) provides a series of alternative connecting factors which reflect a policy hierarchy for determining the “Territory or State of connection”. Where the worker usually works is the most important factor, followed by where the worker is usually based, followed by the employer’s principal place of business. This hierarchy of factors reflects a non-arbitrary means of determining the jurisdiction in which liability arises. Notwithstanding that there is a discernible policy scheme in the hierarchy, it must be recognised that of ultimate importance is the certainty of allocation to one jurisdiction or another.

(c) In elaborating upon the concept of “usually works”, a non-hierarchical collection of factors to which regard must be had are identified in s 36B(6)(a) and a single factor to which regard must not be had is identified in s 36B(6)(b). So far as those matters are concerned, it is significant that specific time periods have been identified in s 36B(6)(a)(i) and s 36B(6)(b). The specific rationale for adopting the 12 month and six month periods is not identified in the legislation. However, the adoption of those periods is significant. The specification of a 12 month period as opposed to some other period in subpara (6)(a)(i) must be given some significance. It clearly reflects a legislative choice. If, instead of specifying “over the previous 12 months” the legislature had said “over the course of the workers employment with the employer”, that would clearly have given a legislative indication of the relevant period. I do not consider that the fact that para (6)(a) does not in its terms preclude regard being had to a broader period means that the legislative specification of the 12 month period can be given little weight.

(d) It has been recognised that some statutes which specify matters to which regard must be had do more than provide an unconstrained checklist of matters which must be considered. Rather, the specification of such matters requires that they be given weight as a fundamental or focal element of the decision-making process: The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333; R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Insurance Australia Ltd v Motor Accidents Authority of New South Wales [2007] NSWCA 314 at [40].

(e) By specifying the matters to which regard must be had, the legislature was not merely specifying a number of matters which might be taken into account by giving them equal significance to the universe of possible matters relevant to the question of where the worker usually worked. Rather, it was specifying the focal points of the analysis required in each case. By identifying the matters in s 36B(6), the legislature was providing a framework in which the issue was required to be analysed. Of particular relevance to the grounds of appeal in this case is the specification of the 12 month period in subpara (6)(a)(i), any period worked in a Territory or State in subpara (6)(a)(iv) and the exclusion from consideration of temporary arrangements not longer than six months in para (6)(b).

(f) The combined effect of the need to treat the 12 month period as a focal point for the consideration of where the worker usually works, and the necessity to have regard to all periods spent in a Territory or State unless excluded under para (6)(b), is that where the worker worked during the 12 month period cannot be disregarded in deciding what is usual.

(g) In my view, it is inconsistent with the statutory framework to reframe the enquiry as to where the worker usually works by reference to the whole of the period of employment, so as to prevent what occurred in the 12 month period being characterised as usual. That is because that 12 month period is identified as the statutory focal point for consideration (albeit not necessarily an exclusive one) and there is relevant data within that period.

51. Adopting this approach, if the work history of the worker in the 12 month period discloses that it is usual for the worker to work in a particular jurisdiction, it would be inconsistent with the framework provided by s 36B(6) to reach a conclusion that the worker did not usually work in that jurisdiction by reference to the history of employment outside the 12 month period.

52. Put somewhat differently, the temporal framing of the issue is not simply at large. Rather, it must occur within the framework provided by subs (6). That tends to narrow the focus of enquiry, reduce the uncertainties as to the outcome of the evaluative process of deciding where the worker usually works and hence promote the purpose of the legislation to provide certainty of outcomes.

53. That a period of work in another jurisdiction might be characterised as a “temporary arrangement” only has statutory consequences if the work in the other jurisdiction is for a period not longer than six months. The six month cut off is a bright line distinction. On one side of the line is a mandatory carveout requiring that work in the jurisdiction be ignored in characterising what is “usual”. On the other side of the line there is no carveout and hence no effect upon the determination made within the framework of para (6)(a). Where the period of work in another jurisdiction is greater than six months, if it is pursuant to an arrangement which is temporary, then the fact that the carveout in para (6)(b) is not enlivened means that it does not prevent the temporary nature of work in a particular jurisdiction from being taken into account as part of subparas (6)(a)(ii) and (iii). However, it does mean that a “temporary arrangement” as referred to in para (6)(b) only has a direct statutory consequence where the statutory condition of working in a different jurisdiction for not longer than six months is satisfied.

54. The primary judge’s approach was one which was temporally unconstrained. His Honour was thereby able to frame the question of “usually works” by reference to the whole of the respondent’s employment with the appellant. That permitted an outcome which gave no effect to the regular, customary and habitual pattern of work in the 12 month period prior to the accident. For the reasons that I have given, that was an approach inconsistent with the statutory framework in s 36B(6) and involved an error of principle in addressing the issue required to be determined under s 36B(3).

55. Applying the approach that I have outlined above, in the present case, having regard to the matters specified in para (6)(a), the position is as follows.

56. (i): 12 month employment history: The parties agreed that the respondent’s history with the appellant over the previous 12 months (from May 2014 until May 2015) was as follows:

(a) 31 May 2014: The respondent suffered a left ankle injury while working in the ACT and was off work for approximately one week.

(b) June 2014 - 8 August 2014: The respondent commenced a graduated return to work at the appellant’s Queanbeyan yard.

(c) 8 August 2014: The respondent ceased work in anticipation of surgery.

(d) 15 October 2014 - 3 November 2014: The respondent returned to work doing light duties at the Queanbeyan yard.

(e) 4 November 2014 - 17 December 2014: The respondent worked at the Bawley Point site.

(f) 18 December 2014 - 5 January 2015: Christmas shutdown.

(g) 6 January 2015 - 26 May 2015: The respondent worked at the Bawley Point site and injured his back on 26 May 2015.

57. In summary:

(a) The respondent worked during the whole of the 12 month period from 27 May 2014 to 26 May 2015 in NSW, except for the days prior to injuring his ankle on 31 May 2014. (b) The respondent worked at the Bawley Point site for a period of 27 weeks prior to the week of the injury (4 November 2014 - 17 December 2014; 6 January 2015 - 26 May 2015).

58. (ii)-(iii): Proposed future arrangements and intentions: As at the date of the injury, the respondent’s proposed future working arrangements involved completing the Bawley Point job as soon as possible and then returning to work predominantly in Canberra. The same can be said in relation to the intentions of the respondent and the appellant.

59. (iv): Periods in a Territory or State: Regard must be had to the period during which the worker worked in a Territory or State for the purposes of employment. On my interpretation this would be confined, or substantially confined, to the 12 month period referred to in subpara (6)(a)(i). Clearly, regard would need to be had to the period spent living at Bawley Point in the accommodation provided by the appellant and the period during which the respondent was actually working there.

60. Focussing on the period of 12 months prior to the accident, it is clear that during this period the respondent usually worked in NSW. All his work was in NSW, except for a few days at the start of the 12 month period. In those circumstances it is clear that he was regularly working in NSW and that this work was habitual or customary during that period.

61. Is this conclusion altered when regard is had to para (6)(b)? The periods the respondent spent working in Queanbeyan (June to August, October to November 2014) on light duties can be characterised as temporary arrangements to accommodate the recovery from his injuries. They were for periods of less than six months. The appellant did not attempt to place emphasis on these periods as demonstrating that the respondent usually worked in NSW.

62. This then leaves the period where the respondent worked at Bawley Point in NSW. The work at Bawley Point falls within the scope of a “temporary arrangement”, that is, a departure from a usual situation. This is because the respondent was asked by the appellant to join the team working at Bawley Point due to his experience. The respondent agreed on the basis that it would only be for a short period of time.

63. The six month period referred to in para (6)(b) relates to the period “which the worker works” in the other jurisdiction. In particular factual circumstances, there may be room for contention as to precisely what periods are to be included in the six month period referred to in the paragraph.

64. In the present case, both parties appeared to accept that the whole of the respondent’s work at Bawley Point on either side of Christmas 2014 should be considered as a single temporary arrangement. In particular, the respondent did not contend that, as a result of the Christmas shutdown, there were in fact two temporary arrangements, each of which lasted less than six months. As a consequence, it was, in this case, clear that the six month period had been exceeded and hence that the carveout provided by para (6)(b) did not operate.

65. Because the period during which the respondent was working at Bawley Point was greater than six months, para (6)(b) means that it is not to be ignored when considering whether or not the respondent usually worked in NSW.

66. The position is therefore that, so far as the 12 month period is concerned, the periods working at the Queanbeyan yard on light duties should not be taken into account as they were temporary arrangements to accommodate recovery from injury. Furthermore, they were for periods of less than six months. On the other hand, the periods at Bawley Point are not excluded by para (6)(b) and must be taken into account in determining where the respondent usually worked. The operation of s 36B(6)(b) is therefore not sufficient to displace the conclusion that the respondent usually worked in NSW as well as in the ACT.

67. For these reasons, the primary judge erred in finding that the respondent usually worked only in the ACT and did not usually work also in NSW. His Honour ought to have found that the respondent usually worked in both jurisdictions.

68. His Honour therefore erred in making the declaration that he did.

Grounds (b) and (h)

69. In light of the conclusions reached above, it is strictly not necessary to address grounds (b) and (h), except in order to explain that upholding these grounds of appeal would be inconsistent with the approach that I have adopted to the legislation in addressing grounds (a) and (g).

70. Each of these grounds appear to be based upon the following statement in Avon at [10]:

Section 36B(3) of the [WC Act] (which is mirrored in s 9AA of the NSW Act) sets up a process for determining the State or Territory with which the worker’s employment is connected that provides three different tests to be applied in determining that connection. The tests are not, however, applied together. Rather, if the first test provides an answer, then that is the end of the matter, but if not, the next test is applied and failing an answer emerging from that test, the third test determines the State or Territory of connection. This approach is significant, because it means that in applying each of the first two tests, it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer, it is necessary to move on to the next test. (Emphasis added)

71. The grounds of appeal seem to be based on the propositions that the emphasised passage in Avon modifies what would otherwise be the appropriate understanding of the cascading test, so that unless there is a “clear answer” to the question posed at one stage of the test, it is appropriate to move on to the next.

72. It is not clear to me where the “clear answer” explanation of the operation of the cascading test comes from. In my view, the terms of s 36(3)(a) and (b) should be read according to their terms. Those terms simply require an answer to be reached in relation to the question posed by each of them. So far as the question of “usually works” or “usually based”, subs (3) contemplates three possibilities:

(a) no Territory or State is identified;

(b) a single Territory or State is identified; or

(c) more than one Territory or State is identified.

73. There must necessarily be a sufficient answer to the question posed by paras (3)(a) and (b) in order to decide whether to proceed to the next stage of the cascading test.

74. So far as “the employer’s principal place of business in Australia” is concerned, subss (3) and (5) contemplate that: (a) a Territory or State is identified; or

(b) no Territory or State is identified.

75. There is nothing in the statute which dictates that there must be a “clear answer” to the question or draws any distinction between the “best answer” and a “clear answer”. The questions posed by the statute must simply be answered. To answer the relevant question will not necessarily require an identification of which of the alternatives outlined above applies. It will simply require a sufficient answer to determine whether or not to proceed to the next stage of the test.

76. For example, it may not be necessary to determine that a worker has no “usual base” or multiple usual bases if it is clear that the worker does not have a usual base in a single State or Territory. It is therefore clear, in that sense, that it may not be necessary to completely determine an issue for the purposes of the application of the test. It may be that it was in that sense that the court in Avon was drawing a distinction between the best answer and the absence of a clear answer which would remove the need to proceed to the next level of the test. However, to introduce a “best answer” versus “clear answer” gloss upon the terms of subs (3) is confusing and likely to generate uncertainty in the legislation, as that might suggest something other than what the statutory text requires.

77. In summary, it is not necessary to consider these grounds but, insofar as they reflect the principle identified in Avon, I do not think that the distinction between “best answer” and “clear answer” accurately reflects the words of the statute and hence would not provide a basis for setting aside the primary judge’s decision.

Ground (i)

78. This ground of appeal does not assert error on the primary judge’s part. It asserts that had his Honour gone to the second and third limbs of the cascading test under s 36B then he “would” (rather than “should”) have found that NSW was the Territory or State of connection.

79. Because his Honour dealt with the matter on the basis that the respondent usually worked only in the ACT, he did not make findings of fact addressed directly to the question of where the respondent was “usually based”.

80. In my view it is not appropriate for this court to determine this issue in circumstances where:

(a) The ground of appeal does not assert error.

(b) The issue of where the respondent was “usually based” was not determined below.

(c) The appellant made no application below for any declaration (or other order) similar to that now sought in its notice of appeal (see [11] above).

(d) No order for the separate determination of the issue raised on the pleadings by paragraph 1.4 of the respondent’s Amended Statement of Claim and paragraph 4 of the appellant’s Defence was made below.

(e) The respondent did not cross-appeal against the failure by his Honour to find this issue in his favour.

81. It is therefore not appropriate that ground (i) be determined in this court.

What is the appropriate order on the appeal?

82. The only matter that was before the primary judge was the (misconceived) Application in Proceeding seeking a “finding” that the ACT was the Territory or State of connection on various alternative bases. No issue joined on the pleadings was ordered to be determined separately pursuant to r 1521 of the CPR.

83. In my view, the manner in which the issue was raised below means that it is appropriate to go no further than necessary for the court to dispose of the appeal. I therefore consider that it is appropriate to simply allow the appeal and set aside the order made by the primary judge. That will then leave it to the parties, if they see fit, to properly present the remaining issues for determination. It is appropriate that the matter be remitted to the primary judge for directions to allow that to occur.

Orders

84. The orders that I propose are:

85. Appeal allowed.

86. The orders made on 30 August 2019 are set aside and, in their place, the following order made: “Application dismissed.”

87. The proceedings are to be listed before the primary judge for directions on a date fixed by the Registrar.

88. The costs of the appeal are to abide the outcome of the determination of the Territory or State of connection.

I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 4 September 2020

Loukas-Karlsson J:

85. I have had the benefit of considering the draft judgment of Mossop J. I agree with the reasons and the proposed orders.

I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.

Associate:

Date: 4 September 2020 Collier J:

86. I have read in draft the judgment of Justice Mossop and respectfully agree with his Honour’s reasons and proposed orders.

I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of her Honour Justice Collier.

Associate:

Date: 4 September 2020