IC Formwork Services Pty Ltd v Moir [2020] ACTCA 4

Decision under appeal: Court/Tribunal: Supreme Court Before: Elkaim J Date of Decision: 30 August 2019 Case Title: Moir v IC Formwork Services Pty Ltd Citation: [2019] ACTSC 246

Murrell CJ

1. On 9 September 2019, the applicant lodged an application for leave to appeal against a declaration made by Elkaim J (the primary judge) on 30 August 2019: Moir v IC Formwork Services [2019] ACTSC 246.

2. On 10 October 2019, the applicant applied for an extension of time within which to make the application for leave to appeal from the primary judge’s decision.

The case

3. The proceedings concern a personal injury claim arising out of an injury suffered by the respondent on 26 May 2015 in the course of his employment as a formwork carpenter at a work site in Bawley Point, NSW. The applicant was the respondent’s employer.

4. The respondent says that, for the purposes of s 182D of the Workers Compensation Act 1951 (ACT) (Workers Compensation Act), the law to be applied is that of the ACT. The applicant says that the applicable law is that of New South Wales.

5. The primary judge found that, although the applicant operated from premises in Queanbeyan, NSW, most of its business occurred at work sites in the ACT: at [15]. The applicant had asked the respondent to assist with a large project in Bawley Point: at [16]. The respondent worked at Bawley Point from November 2014 until July 2015, when he was certified unfit to work. From early 2015, he expressed disenchantment with working in Bawley Point and a desire to return to work in the ACT. More recently, the respondent has worked, but only in the ACT.

6. The primary judge declared that, for the purposes of s 36B(1) of the Workers Compensation Act, the ACT was “the Territory or State of connection”, principally because it was the Territory or State “where the respondent usually worked in the employment” within the meaning of s 36B(3)(a): at [24]. In reaching that conclusion, his Honour had regard to s 36B(6) of the Workers Compensation Act which mandates that, in deciding where a worker “usually works”, inter alia, a court must consider “the worker’s work history with the employer over the previous 12 months”, but must disregard any temporary arrangement under which the worker works in a territory or state for a period of not longer than six months: s 36B(6)(a)(i) and (b).

7. Despite the fact that, in the period preceding and following the injury, the respondent had worked in NSW, the primary judge concluded that, in light of his whole employment history with the applicant, and having regard to the respondent’s intention to resume working in the ACT, the ACT was the place where he usually worked.

Was the declaration an interlocutory order or a final order?

8. 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.

Application for an extension of time

13. Rule 5312 of the Court Procedures Rules 2006 (ACT) provides that an application for leave to appeal from an interlocutory order should be made within seven days or such further time as is allowed by the Court of Appeal.

14. The applicant's solicitor provided evidence that, as the primary judge's decision was handed down after the Court Registry had closed on Friday, 30 August 2019, he believed that the time for filing an application seeking leave to appeal would run from when the Court Registry opened on Monday, 2 September 2019, expiring on 9 September 2019.

15. The application was filed on 9 September 2019, ten days after the order was actually made. On the following day, the sealed application was served on the respondent.

16. As soon as he became aware that there may be an issue about whether the application for leave to appeal was filed within time, the applicant's solicitor contacted the respondent's solicitor.

17. There is a good explanation for the late filing of the application. The respondent does not contend otherwise. The application was filed only ten days after the order was made, and—assuming that, in fact, it was filed out of time—it was filed only one working day out of time. The late filing of the application has not prejudiced the respondent.

18. I am satisfied that, subject to a consideration of the merits of the appeal and other considerations that may affect the granting of leave to appeal, the applicant should be granted an extension of time within which to seek leave to appeal.

Application for leave to appeal

19. I am satisfied that the proposed grounds of appeal are arguable, and the applicant should be permitted to pursue them.

20. The respondent submitted that many of the proposed grounds of appeal challenged factual findings that were open to the primary judge.

21. However, while the proposed appeal involves some complaint about the primary judge's factual findings, the principal matters in contention are the interpretation and application of s 36B of the Workers Compensation Act to the facts of the case. The applicant contends that the primary judge should have found that the respondent “usually worked” in both the ACT and NSW and should have gone on to consider the “cascading test” of work connection in s 36B(3)(b) and (c), consistent with the decision in Avon Products v Magrit Falls [2010] ACTCA 21. The applicant contends that, having applied the “cascading test”, the primary judge should have found that NSW was the “State of connection”, such that NSW law applied to the respondent's workers compensation claim.

22. Given the primary judge's factual findings, these contentions would appear to be arguable.

23. While the declaration made by the primary judge may not have finally determined the core issue between the parties—whether and how much compensation was payable to the respondent—the decision was critical to the manner in which that issue would be determined. It was not a decision on a relatively insignificant point of practice or evidence. Further, the decision involved the interpretation of an important piece of legislation that is similar to provisions in other jurisdictions. The applicant contends that the primary judge's decision creates uncertainty for employers and workers concerning the law that applies to workers who work out of jurisdiction for prolonged periods of time.

24. Having regard to the legal issues raised, the importance of the primary judge's decision to the rights of the parties in this case, and the broader public significance of the decision, I grant an extension of time that may be necessary for filing the application for leave to appeal and I grant leave to appeal on the grounds identified in the draft notice of appeal.

25. The costs of the applications are to be costs in the cause.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Judgment of her Honour Chief Justice Murrell.

Associate:

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