Plaintiff v First Defendant

WORKERS COMPENSATION - Plaintiff interstate truck driver injured in South Australia - Plaintiff had accepted claim under Victorian legislation - Entitlement to compensation determined by State with which plaintiff's employment is connected - Plaintiff not entitled to compensation in Victoria but is entitled to compensation in South Australia - Return to Work Act 2014 (SA) s 10 - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 37 - Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 - Avon Products Pty Limited v Magrit Falls [2010] ACTCA 21 - Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 - I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44 - Papas v WorkCover Corporation/EML (Dnister Ukrainian Credit Co-Operative) [2013] SAWCT 9.

1. The plaintiff brings a claim for damages for injuries sustained in the course of his employment as a truck driver with the first defendant (Qube), when on 13 August 2020, he slipped and fell while getting down from his truck cabin. The fall occurred at the premises of the second defendant (Teys Australia) in Hynam, South Australia.
2. An issue arises as to whether the applicable law governing the claim against the employer is that of Victoria or South Australia. Amendments to Qube's defence made by leave granted on 6 November 2025 for the reasons and circumstances set out in an earlier ruling make the issue explicit.[1] The applicable law concerning the claim against the second (non-employer) defendant is accepted to be South Australian law and is not affected by the choice of law applicable to the claim against the employer.
3. On 14 November 2025 and with the consent of the parties, the Court ordered the following questions be tried separately before the trial of the proceeding in accordance with r 47.04 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (the Rules).

(a) Does the plaintiff have an entitlement to compensation in Victoria pursuant to s 37 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), or in South Australia pursuant to s 10 of the Return to Work Act 2014 (SA) (RTW Act)?

(b) If the plaintiff has an entitlement to compensation in South Australia pursuant to s 10 of the RTW Act, should:

(i) the plaintiff's proceeding as against the first defendant be dismissed given the operation of s 319 of the WIRC Act and ss 71 and 72 of the RTW Act?

(ii) the second defendant's contribution proceeding as against the first defendant be dismissed given the operation of s 319 of the WIRC Act and s 66 of the RTW Act?

(a) The plaintiff has no entitlement to compensation in Victoria as, pursuant to s 37(3) of the WIRC Act his employment is connected with South Australia. The plaintiff does have an entitlement to compensation in South Australia as, pursuant to s 10(3) of the RTW Act, his employment is connected with South Australia.

(b) As the plaintiff's employment is connected with South Australia:

(i) the plaintiff's proceeding against the first defendant must be dismissed because s 319 of the WIRC Act and ss 71 and 72 of the RTW Act prescribe the substantive law is that of South Australia, and the plaintiff has not complied with the provisions in the RTW Act that entitle him to commence this proceeding against his employer; and

(ii) the contribution proceeding brought by the second defendant against the first defendant should also be dismissed by s 319 of the WIRC Act and s 66 of the RTW Act.

1. The preliminary questions are determined upon agreed facts. Those agreed facts are as follows:[2]
   1. The Plaintiff commenced employment with the First Defendant as a transport worker on about 15 April 2019.
   2. He signed a contract of employment on 18 April 2019 (the Contract). Clause 1.1 and Schedule 1 of the Contract stated that he would be based at the First Defendant's depot in Hynam, South Australia (the Qube Hynam Depot).
   3. The Plaintiff completed his driver assessment at the Qube Hynam Depot on 1 May 2019, and completed the driver induction at the Qube Hynam Depot on 19 June 2019.
   4. The Plaintiff typically received instructions from papers that he collected from the Qube Hynam Depot, and which provided him with the information he required to perform his work duties. He also received information via a computer system in the truck (called MT Data (the Computer). His practice was to report any issues by writing down his issues on paper and delivering that paper to the Qube Hynam Depot, or entering his issues into the Computer. He would then wait for a response from the First Defendant.
   5. Throughout his employment with the First Defendant, the Plaintiff lived in Edenhope, Victoria.
   6. Prior to commencing each shift, the Plaintiff drove his personal vehicle from his home in Edenhope to the Qube Hynam Depot.
   7. His job involved driving a truck, which he shared with another driver (Trevor Watson). For at least one month prior to his injury, the Plaintiff had performed night shift work, delivering hides. Mr Watson had performed dayshift work, delivering containers.
   8. In the twelve months prior to the incident the plaintiff performed night shift on 110 occasions (the shift on which he was injured being the 111th). The Plaintiff's typical daily work duties when performing night shift, delivering hides, were as follows (times are approximate):
      • 3:00pm: Depart home 33 Lake Street, Edenhope, and drive to the Qube Hynam Depot in his personal vehicle.
      • 3:45pm: Arrive at Qube Hynam Depot. Perform pre-checks on the truck. Drive the truck to the Second Defendant's premises at 915 Wimmera Highway, Hynam, South Australia (which was located across the road from the Qube Hynam Depot) (the Teys Premises). At the Teys Premises, he would book into the yard and the security system, and ordinarily drive to the rear of the yard. At the rear of the yard, he would connect the relevant trailers (containing the hides) to the truck and secure the tarps over the load. He would also collect some paperwork from the Second Defendant at the Teys Premises.
      • 4:45pm: Depart the Teys Premises, and drive the truck to Laverton, Victoria, to deliver the hides.
      • 5:00pm: Cross border from South Australia into Victoria.
      • 10:30pm: Arrive at Laverton, Victoria, where he would unload the hides from the trailers into sheds, and have a short break.
      • 11:00pm: Depart from Laverton, Victoria, and drive the truck to the Teys Premises.
      • 3:15am: Cross border from Victoria into South Australia.
      • 3:30am: Arrive at the Teys Premises. Drive the truck to the rear of the yard at the Teys Premises and unhook the trailers. Drive the truck from the Teys Premises to the Qube Hynam Depot. Deliver paperwork to the Qube Hynam Depot.
      • 3:45am: Depart Qube Hynam Depot in personal vehicle and drive home to Edenhope.
   9. In the 12 months prior to the incident the plaintiff worked day shift on 83 occasions delivering containers. He typically commences at the First Defendants premises at Hynam at about 3am. He collected his truck and trailer (with the containers already loaded onto it) at the Qube Hynam Deport. He performed pre-checks on the truck at the Qube Hynam Depot and then commenced his drive to the docks in Victoria (drive time about 5 hours). The Qube Hynam Depot was approximately 14km from the South Australian/Victorian border (so the drive involved 14km (15 minutes) driving time in South Australia and 4 hours 45 minutes driving time in Victoria). The plaintiff unloaded the containers at the docks in Victoria and would then drive to one of six Victorian depots to collect an empty container ( a maximum of between 1-2 hours total, including drive time) before driving back to the Qube Hynam Depot ( approximately 5 hours drive time - 4 hours 45 minutes in Victoria and 15 minutes in South Australia). He dropped the empty trailers/ containers and the truck off at the Qube Hynam Depot about 2 or 2.30pm and completed his shift at about 3pm. He delivered any paperwork to the Qube Hynam Depot. He then drove his personal vehicle home to Edenhope at the end of his shift.
   10. Occasionally when performing day shift, the Plaintiff would drive to the docks in Adelaide, rather than Victoria ( in which case the entirety of his driving time would be in South Australia). In the twelve months before the injury, the plaintiff performed around 5 to 10 of these trips. The total duration of these trips were around 9 hours in total.
   11. In the twelve months prior to the incident, the plaintiff did shifts involving short amounts of truck driving during the day (different to the night shift and day shift duties described) on 4 occasions. The trips were to Horsham in Victoria. The total duration of these trips was around 3-4 hours.
   12. Throughout the Plaintiff's employment with the First Defendant, the First Defendant's principal place of business address registered with ASIC was 1 Coughlan Road, Outer Harbor, South Australia, and it was a company registered in South Australia.
   13. From 28 September 2011 to 9 April 2017, the registered office address of the First Defendant with ASIC was Bumborah Point Road, Port Botany, NSW, and after 10 April 2017, it was Level 27, 45-53 Clarence Street, Sydney, NSW.
   14. The Plaintiff has not had his degree of permanent impairment assessed under Part 2 of Division 5 of the Return to Work Act 2014 (SA) (RTW Act).
   15. The Plaintiff has not made a claim for compensation under Part 4 of the RTW Act in respect of the alleged injuries.
   16. At the time of the incident, the plaintiff and the first defendant had no intention to make any changes to the plaintiff's employment arrangement or duties.
2. Documents supporting the agreed facts have been put before the Court in the affidavits filed in the application.[3] No disputed facts have been identified by the parties. In addition to the agreed facts, the parties accept that the plaintiff has lodged a claim for compensation and an impairment claim under the WIRC Act which have been accepted and compensation paid.[4] A notice terminating entitlement to compensation dated 13 October 2025 was tendered. Additionally the plaintiff has obtained a Serious Injury Certificate under s 325 in compliance with the WIRC Act. The procedural requirements of s 333 of the WIRC Act have therefore been met and no issue arises as to compliance with the Victorian legislation in bringing the damages claim.

1. The first separate question concerns Mr Reynold's entitlement to compensation. That is governed by the territoriality provisions of the Victorian and South Australian workers compensation legislation. In both the test is one of employment 'connected with' the relevant state.
2. In Victoria, the test is found in s 37 of the WIRC Act which is in the following terms:

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.

(3) A worker's employment is connected with -

(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.

(4) ...

(5) ...

(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. The equivalent South Australian legislative provision is found in the South Australian Return to Work Act 2014. Part 2 Division 2, is headed 'Connection with State'. Within Division 2 section 10 is as follows:

(1) This Act applies to a worker's employment if (and only if) that employment is connected with this State.

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

(3) A worker's employment is connected with -

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

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

(4) ...

(5) ...

(6) In deciding whether a worker usually works in a State -

(a) 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; but

(b) 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.

(8) ...

(9) ...

1. The second separate question concerns the choice of law applicable to a damages claim by a worker against their employer. The entitlement to compensation by reference to employment 'connected with' a State will also determine the substantive law applicable to a worker's damages claim if, under the WIRC Act, Division 1 of Part 7 applies.
2. Section 318 provides that the statutory choice of law provisions apply in two circumstances:

(1) This Division applies only to a claim for damages or recovery of contribution brought against a worker's employer in respect of an injury that was caused by -

(a) the negligence or other tort (including breach of statutory duty) of the worker's employer; or

(b) a breach of contract by the worker's employer.

(2) This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker's employer in respect of an injury if -

(a) the worker's employment is connected with Victoria; and

(b) the negligence or other tort or breach of contract on which the claim is founded occurred in Victoria.

1. The South Australia equivalent provision is s 88 of the RTW Act - in terms of similar effect.
2. Mr Reynolds' claim against his employer falls within s 318 and s 88 of the RTW Act. Therefore in Victoria s 319 sets out the applicable substantive law:

The applicable substantive law for work injury damages claims

(1) If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs -

(a) whether or not a claim for damages in respect of the injury can be made; and

(b) if it can be made, the determination of the claim.

(2) This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.

(3) For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it -

(a) would have been payable but for a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or

(b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.

(4) A reference in this section to compensation payable in respect of an injury does not include reference to compensation payable on the basis of the provisional acceptance of liability.

1. Section 87 of the RTW Act mirrors s 319 of the WIRC Act.
2. Therefore, where s 319 of the WIRC Act or s 87 of the RTW Act is engaged, the applicable law in a damages claim against the employer is determined by the entitlement to compensation under the statutory workers compensation scheme of the particular State. In this instance it will be either, s 37 of the Victorian legislation or s 10 of the South Australian legislation. Importantly, the question of entitlement is not determined by whether or not compensation has been paid but by applying the test of 'connection with the State'.
3. Concerning the contribution claim of Teys Australia, s 66 of the RTW Act is relevant. It provides:

(1) Subject to this section, nothing in this Part affects a liability arising out of the use of a motor vehicle that gives rise to a liability for motor accident damages.

(a) a worker suffers a work injury (not being an injury that arises out of the use of a motor vehicle and gives rise to a liability of a kind referred to in subsection (1)); and

(b) action is taken against a person other than the employer for damages in respect of the injury,

the other person has no right to recover a contribution from the employer.

1. The provisions concerning employment connection with a State and the choice of substantive law for damages claims result from an interjurisdictional agreement to implement a uniform approach where work is performed across more than one State or Territory.

1. Section 37 sets out a test of connection with Victoria that is sometimes described as a 'cascading' or 'progressive' test. Asking the question of where a worker 'usually works', if answered by identifying a single State or Territory, provides the answer to employment connection with that State. It is only where the answer identifies 'no State or no one State' that it is necessary to move to paragraph (b) and ask where a worker is 'usually based'. Again it is only if that inquiry identifies 'no state or no one state' is it necessary to move to the next question of the employer's principal place of business or beyond to s 37(5) in order to determine the employment connection with a State or Territory.
2. This cascading test is found in s 10(3) of the South Australian legislation in identical terms, albeit with slightly different introductory language in subsection (1). It is also found in workers compensation legislation in other states and territories.[5]

1. The first defendant submits that the plaintiff usually works in both Victoria and South Australia. Therefore neither s 37(3)(a) nor s 10(3)(a) of the RTW Act determine the State of connection. It submits that s 3(b) provides a single answer, that being connection with South Australia on the basis that it is the State in which the worker is 'usually based'. If necessary, s 3(c) would also result in the State of connection as South Australia. It contends that a nationally consistent approach to the territoriality provisions will lead to the same answer as to a single State of connection The first defendant submits that Parliament intended a consistent national approach and that any different approach in South Australia would lead to injustice through gaps and overlap. The legislation provides for a finding by a Court of a State of connection to be binding; Division 4 Part 6 ss 314-317 WIRC Act and in s 12 of the RTW Act.
2. Consequentially, the proceeding against the employer is invalid as the plaintiff has not complied with the provisions of the RTW Act, specifically s 71(3) which requires him to obtain an assessment of the degree of impairment in order to commence a proceeding for damages. Further, as Mr Reynolds has not made a successful claim for compensation under the RTW Act, the employer has no liability to pay damages by operation of s 71(8) of the RTW Act. Section 71 of the RTW Act deals with the limitations on awards of damages.[6]
3. Similarly, the Second Defendant's claim for contribution against the first defendant, is also governed by s 319 of the WIRC Act and its equivalent: s 87(1) of the RTW Act. South Australian law therefore governs the contribution claim against the employer. Section 66(4) of the RTW Act prohibits the second defendant's right to recover contribution from the first defendant.
4. The plaintiff contends that the acceptance of the claims for compensation has been correct and that the test of connection with Victoria is satisfied by s 37(3)(a).
5. The plaintiff's submissions make four points. First, he places all his reliance on the submission that Mr Reynolds 'usually worked' in Victoria. If he fails in this submission, he makes no submission that the test could be satisfied by Victoria being the State in which the worker was usually based or as the employer's principal place of business.
6. Second, he submits that, although the territorial application of the RTW Act contains the same test as the equivalent provision in Victoria, the intent of the South Australian legislature in adopting the test of where a worker 'usually works' is a different approach. By reference to the second reading speech in the South Australian Parliament he submits it is a quantitative approach determined by where a worker 'spent the greatest portion of their working time'.[7] Mr Reynolds spent approximately 84% of his work time in Victoria in the 12 months prior to injury, and the parties had no intention of changing that situation. The worker therefore 'usually worked' in Victoria. South Australian case law does not address the application of the test in circumstances like those of Mr Reynolds.
7. Third, he submits that 'usually' does not mean invariably or exclusively, and at some point the preponderance of time is reflective of one State in which a worker usually works. Mr Reynolds' time demonstrates that he usually worked in Victoria. He submits that even on the approach that the question of where a worker 'usually works' is not a quantitative test, it is not necessary for a worker to perform all work in one State to meet this test. There must be a point at which the preponderance of work in one particular state qualifies for the description of 'usually works' in that State. The evidence is that he was 'overwhelmingly performing duties in Victoria'. He submits that Mr Reynolds' circumstances demonstrate a 'complete dominance' of connection with Victoria.
8. Fourth, he submits that his work connection with Victoria is consistent with the acceptance of the claim under the Victorian workers compensation scheme. The acceptance was a considered decision made by the Victorian agent, after information provided by the South Australian employer, and one to which it turned its mind to Victoria being the State of connection. It did so on an assessment of time spent and share of work in Victoria.[8] As between himself and the first defendant he submits that the Victorian Workcover acceptance of this claim was correct. He relies on the cases of Ansett v Taylor[9] and Sednaoui v Amac Corrosion Protection[10] and the evidentiary weight to be given to the admission of the claim under the WIRC Act.
9. The second defendant makes no submission as to the connection with the State and the resolution of the choice of substantive law governing the plaintiff's claim against the first defendant. It accepts that if the Court concludes that Mr Reynolds' employment is connected with South Australia, then its contribution proceeding against the first defendant cannot be maintained because of s 66(4) of the RTW Act. It submits that a further question will arise as to whether the plaintiff's proceeding should be dismissed against the second defendant by reason of s 71 of the RTW Act which operates as a bar to the commencement of the plaintiff's damages claim.[11] This issue does not arise on the separate questions presently before the Court.

D.1 Hanns v Greyhound Pioneer Australia Ltd[12]

1. The ACT Supreme Court upheld an appeal from a Magistrate's decision that Mr Hann's employment as an interstate bus driver was not connected with ACT. Mr Hann was injured in a collision while driving a bus in NSW. He had been paid compensation under the NSW compensation scheme and when notified that those payments were to cease he applied for a declaration as to his entitlement to compensation under the ACT legislation. The Magistrate had decided that the 'majority of the time spent carrying out employment was in NSW and not the ACT' so gave an affirmative answer to the first test of where Mr Hanns usually worked.
2. Gray J rejected the submission that 'usually' meant 'prevalent' or 'more often than not' and rejected that the determination of where a worker 'usually worked' requires a quantitative test. He reasoned that a quantitative test was indicative of uncertainty and difficulty in application and it sat uncomfortably with the wording of the consequential circumstances calling for consideration of the tests involving 'usually based' or principal place of business. Satisfaction of the test set out in the three provisions in subsection (3) is predicated upon an answer that identifies a single State.

D.2 Tamboritha Consultants Pty Ltd v Knight[13]

1. This was a decision of the District Court of Western Australia considering the relevant provisions under the _Workers Compensation and Injury Management Act 1981 (_WA). The worker was injured in a fire while on a ship in Port Phillip Bay that was to lay down underwater anchors and chains. The worker was a resident in Perth and the employer had an office and business premises in Perth, but its registered office and principal place of business were in Victoria. The employer had sought a declaration that the worker's employment was not connected with the State of WA but was connected with Victoria.
2. The decision canvassed the legislative intent to enact a national scheme but noted that there were differences between the State legislation enacted. He noted in particular s 53AA of the Work Health Act 1986 (NT). At the time, that provision contained a test for determining whether a worker is usually based in a particular jurisdiction by regard that may be had to four matters:

(a) the work location specified in the worker's contract of employment;

(a) the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment in relation to the work;

(c) the location the worker reports to in relation to the work;

(d) the location from which the worker's wages are paid.

1. The equivalent of s 53AA was not found in either the Victorian or Western Australian legislation. Herron J considered the factors set out in the Northern Territory Work Health Act are the types of matters that are contemplated by the expression 'usually based for the purposes of that employment'. He considered those matters as bearing upon whether the test of connection under sub-paragraph (b) was made out.
2. The decision noted the sequential steps set out in the test for connection with a State. Ultimately it decided that there was no one State in which the worker usually worked and rejected an approach that the answer could be arrived at by an assessment of comparative percentages of time spent, saying:

The expression 'usually works' is not synonymous the where the worker 'works for the majority of the time'.[14]

1. In distinguishing the meaning of 'usually based' from 'usually worked', the Court identified a place, or centre of operations, and contemplates the type of matters listed in the Northern Territory legislation. Upon a factual analysis of a multitude of factors, Herron J concluded that Western Australia is where the worker was 'usually based'.

D.3 Avon Products Pty Ltd v Magrit Falls[15]

1. The worker in Avon was a sales manager responsible for an area within the ACT but a resident in New South Wales and did a proportion of her work, mostly administrative work, from home in that State. It was agreed that the 'usually works' test identified both the ACT and New South Wales and so the question was in which State or Territory was the worker 'usually based'. The case was ultimately heard by the ACT Court of Appeal from an original decision by a Magistrate. The ACT equivalent of s 37(3)(b) under the Victorian legislation, which is in identical terms, led their Honours to this conclusion as to where the worker is usually based:

The evidence before the Court shows no particular usual base. The fact that Ms Falls did some work from home does not necessarily constitute that place as her base for the purposes of her employment. Something more than a convenient place for part of her duties to be carried out is required before it can be said that her residence was her base in an employment sense. In the same way it might be said that while working in her sales district in the ACT her vehicle was her base. What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate. Accordingly s 36B(3)(b) does not appear to answer the question of what is the State or Territory of connection in the case of Ms Falls.[16]

D.4 Wadley v Ron Finemore Bulk Haulage Pty Ltd[17]

1. Mr Wadley was a truck driver injured in New South Wales. Williams J of this Court heard and determined as a preliminary question whether or not Mr Wadley had an entitlement to compensation under s 80 of the Accident Compensation Act 1985 (Vic), the predecessor to s 37 of the WIRC Act.
2. Her Honour described s 80 as introducing a 'hierarchy'. In Wadley, it was agreed that he usually worked in both Victoria and New South Wales. The contested issue for determination was whether he was usually based in Corowa, New South Wales, or Wodonga, Victoria. The Judge made a determination based upon contested evidence. Her Honour made findings about the nature of the work and the time spent engaged in various work activities. Relevantly, her Honour set out dictionary meanings of the adjective 'usual' and the adverb 'usually' and said:

Whilst the matter is not the subject of binding authority, consistently with those dictionary definitions, the expression 'usually works' in comparable provisions in other States and Territories has been interpreted on the basis that 'usually' means 'customarily' 'frequently' or 'regularly', and does not involve a quantitative test. Indeed, sub-section 80(3)(b) appears to contemplate that there might be two States in which the worker 'usually works' within the meaning of sub-s (a). If the comparison were quantitative, it is difficult to see how two States could each qualify.[18]

1. Interpreting 'usually' in the same way in next considering where the worker was usually based, her Honour was unable to identify one State. Again, after consideration of the definitions in the Dictionary of 'usually' and by reference to cases from other States, her Honour concluded:

The evidence relating to relevant matters, including the four suggested factors and the mandatory consideration under sub-s 80(7), as to the time Mr Wadley spends in a State while working, indicates that there is no one State in which he can be said to have been 'usually' based.[19]

The reasons then set out why Mr Wadley was at times usually based both in Corowa and at Wodonga.

1. Wadley was ultimately determined upon sub-paragraph (c) - connection with the State in which the employer's principal place of business is located.

D.5 Ferguson v Workcover Queensland[20]

1. Mr Ferguson was a delivery driver who made deliveries in Queensland and NSW from the employer's warehouse in Tweed Heads. He was injured during a delivery in New South Wales. Queensland had rejected his compensation claim and a claim under the New South Wales legislation was accepted. The issue then arose as to the correct insurer. The worker gave notice of a claim for damages pursuant to the Queensland legislation which was disputed. The trial judge concluded that Mr Ferguson worked predominantly in Queensland. However, as he also usually worked in NSW, there was no one State where the worker 'usually works'.
2. On the next question of where a worker is 'usually based' for the purpose of employment, he concluded that this did not necessarily equate with the place where the employer is based. He said the location at which a worker routinely attends for direction or to collect material may be relevant, as it was on the facts before him, or the place where he started and finished work each day. It may be a base in which a fairly small amount of a working day is spent. The question was, if a base is identified, whether that place is where the worker is usually based. The trial judge concluded that he was usually based in NSW for the purpose of his employment as:

Tweed Heads was the place where the applicant turned up for work each morning, received his instructions, loaded his truck, reported to and returned to at the end of each work day. Tweed Heads was the place at which the truck he used was based. It was the centre out of which he operated, and the fact that he spent, on average, a large part of his working day driving on roads in Queensland does not alter this fact. The Tweed Heads warehouse was his base. It was his usual base.[21]

D.6 I.C. Formworks Services Pty Ltd v Moir (No 2)[22]

1. Moir was a carpenter injured on a job site at Bawley Point, New South Wales. The employer appealed the decision of a single judge of the ACT Supreme Court that the relevant substantive law governing Mr Moir's common law claim was that of ACT as it was the Territory in which Mr Moir 'usually worked'.
2. The appeal turned on whether the relevant frame of reference of employment was a twelve month period, as provided for by the statute (s 36B(6) (the equivalent s 37(6) of the Victorian legislation), or reference to the whole of employment. It concluded that the twelve month period is a focal point but not an exclusive one. The twelve month period cannot be disregarded in deciding what is usual. The primary judge took an erroneous approach that was temporally unconstrained. A correct analysis focused on the 12 month period, and having regard to temporary arrangements that were to be disregarded, the worker usually worked in both New South Wales and the ACT. It observed that the questions of where a worker usually works, or is usually based, contemplates three possibilities: no State or Territory is identified, a single State is identified, or more than one is identified. There must be a sufficient answer to the question posed by (a) and (b) in order to decide whether to proceed to the next stage of the test.

1. The text set out in s 37(3) of the WIRC Act and s 10(3) of the RTW Act is identical. In context their purpose has been to create uniform cross border provisions by interjurisdictional agreement.[23] This being so, cases from superior courts of other jurisdictions interpreting and applying the equivalent provisions are relevant.
2. In each case that has considered it, a quantitative test identifying the State in which the majority or preponderance of time is spent has been rejected. The observation of Williams J of this Court in Wadley has a compelling logic to it:

Indeed, subsection 80(3)(b) appears to contemplate that there might be two states in which the worker usually works within the meaning of sub-s(a). If the comparison were quantitative, it is difficult to see how two states could each qualify.[24]

1. The test, in the three stages, is clearly designed to provide a connection that admits of a single connection for all workers.
2. I place little, if any, weight on the plaintiff's reference to the 2006 Second Reading speech in the South Australian Parliament. The speech itself confirms an intent to unequivocally link a worker to a jurisdiction and to one only. The Bill was modelled on the Victorian amendments passed in late 2003. Those amendments have since been the subject of Williams J's consideration in Wadley. The speech anticipated that the first test would decide the vast majority of territorial matters and identified need for further clarification of the phrase 'usually works'. The identification of a test that a worker will usually work in the State in which they spend 'the greatest portion of their working time' was a quotation from 2004 Victorian Guidelines published in September 2004. Whatever might be said of the status of those Guidelines at the time, the quotation does not provide any support for a different legislative intent by the South Australian Parliament to a national approach.
3. Insofar as South Australian case law addresses s 10 of the RTW Act, or its predecessor, there are few cases identified and they largely deal with factual circumstances not involving cross-border work practices. However, two cases from South Australia are instructive.
4. Papas v WorkCover Corporation/EML[25] concerned a credit co-operative manager who worked four days each week in Victoria at an Essendon branch office and two days each week at a branch office in Hindmarsh, South Australia. The Workcover agent in South Australia, having accepted Mr Papas' compensation claim in 2012, later asserted it was wrong to have done so and took the position that the claim should be pursued under Victorian law. The relevant provision was s 6(3) of the Workers Rehabilitation and Compensation Act 1986 (SA), in the same terms as s 10(3) of the RTW Act. The parties in Papas conceded that, on the facts, the worker usually worked and was usually based in both Victoria and South Australia so the case turned on whether subparagraph (c) was satisfied by identifying a single principal place of business. The manner in which the case was argued nevertheless required his Honour, Deputy President Gilchrist, to consider the interpretation of s 6. His Honour noted that WorkCover SA's submission that:

the starting point was to identify whether there is a single State where it can be said the worker usually works....If that enquiry does not yield an answer in the sense that there is either no state...or there is more than one state...then one turns to the second limb.[26]

His Honour described this submission as not controversial and consistent with the approach suggested by the ACT Full Supreme Court in Avon Products.[27] This case strongly suggests an interpretation of the SA provision consistent with that of Courts in other jurisdictions.

1. In Oldman v Return to Work SA,[28] his Honour, Deputy President Calligeros, determined that Mr Oldman's employment was connected with South Australia as it was the only State in which he usually worked within s 10(3)(a). At issue in the case was whether the intention of the parties and potential for future projects in other states changed the analysis of his usual place of employment. Oldman also does not suggest any different construction of the test of connection than has been applied by Courts in other States. Indeed the case references the following extract from the Second Reading speech introducing the RTW Bill and in particular s 10 in its current form without any suggestion of a time based quantitative test:

This clause deals with the territorial application of the Act and provides that the Act applies to a worker's employment if the employment is connected with South Australia. The clause sets out rules for determining the State with which a worker's employment is connected. A worker's employment is connected with the State in which he or she usually works in the relevant employment. If no State or no single State can be identified as the State in which the worker usually works, his or her employment is connected with the State in which he or she is usually based for the purpose of employment, or, if not such State can be identified the State in which the employer's principal place of business is located.[29]

1. Consistent with authority in both South Australia and Victoria, as well as in other States, the phrase 'usually works in that employment' requires consideration of where a worker customarily, frequently, habitually or regularly undertakes their work performed in that employment. His regular work duties most workdays[30] involved both time and tasks located across two states. Although a singular analysis of the comparative time spent in employment overall might heavily favour one State over the other, such a comparison is not determinative of where a worker 'usually works'. Tasks in each State are habitual and customary parts of his regular working days or nights. The State in which Mr Reynolds usually works is not answered by identifying a single State.
2. Therefore the test in s 37(3)(a) and s 10(3)(a) is not satisfied and the enquiry must move to s(3)(b).
3. It is accepted that the plaintiff has an accepted claim for compensation under the Victorian legislation. His entitlement has recently been terminated and the notice of termination is before the Court. It is based upon s 37 of the WIRC Act. The case of Ansett v Taylor concerned whether acceptance of a claim for statutory compensation conclusively established that a worker had sustained compensable injury for the purpose of a subsequent serious injury application in order to bring a damages claim. It is authority for the proposition that acceptance is not conclusive, but, as an admission by the Workcover Authority, it has an evidentiary effect ordinarily of significance, in the context of a serious injury application. Compensability is not raised as an issue in the present case in the sense that there has been 'an injury arising out of or in the course of employment' within the meaning of s 39 of the WIRC Act. The test of connection in s 37 does not address compensability. It is a provision that disentitles a worker under the Victorian scheme unless the test of connection results in a connection with Victoria.
4. In the context of a damages claim against the employer, as governed by Part 7 and in particular Division 1 of the WIRC Act, s 319 specifically refers to an entitlement to compensation under the statutory scheme of a State whether or not compensation has been paid. In such circumstances, the evidentiary weight of an admission by Workcover that an injury has occurred in compensable circumstances, is of little, if any, relevance to determining the State of connection or the applicable substantive law governing a damages claim.
5. As mentioned above, the plaintiff made no submissions in opposition to those of the first defendant on the application of sub-sections 3(b) and (c).
6. I accept the first defendant's submissions that Mr Reynolds was 'usually based' in South Australia. The following factors relevant to this question all point to South Australia:

(a) The Qube depot in Hynam

(i) is specified as the location in his contract of employment;

(ii) was where he received instruction and information needed to perform his duties;

(iii) was where he reported issues, including occurrence of injury;

(iv) was where he commenced and concluded each shift; and

(v) was where his truck was based.

1. While the Teys premises in Hynam might also be considered a base as it was where he attended to hook up trailers and collect paperwork, and return trailers on his return to Hynam most times while he was working night shift, it would not change the fact that Mr Reynolds was usually based in South Australia. If one were to consider the unloading that commonly or usually occurred in Laverton, without more, that particular task cannot amount to being 'based for the purposes of employment' at those locations. As was said in Avon, something more than a place where some duties are carried out is required. Rather, what is relevant is whether there is provision by the employer of a place from which the worker is expected to operate.[31]
2. I find that the worker was usually based for employment at Cube's Hynam depot and so was usually based in South Australia. Accordingly the plaintiff's employment, is connected with South Australia.
3. Were it necessary to consider the employer's principal place of business, the first defendant submits that following matters all identify an address in Outer Harbour, South Australia:

(a) The letterhead of the contract of employment ;

(b) The employer injury claim form ;

(c) the principal place of business registered with ASCI ;

(d) The employer is a business registered in South Australia;

(e) Its name references a connection with SA by (SA1); and

(f) The fact that the registered office is in NSW does not overcome the factors that cumulatively point to South Australia being the 'principal place of business'.

1. In any event, as the first defendant submits, if a single answer cannot be found to any of the questions raised by subsection (3), employment will be connected to the State where the injury occurs which in this case is clearly South Australia.
2. The second defendant accepts that having found South Australia to be the State with which the employment is connected, that s 66(4) precludes its contribution claim. The question of whether Mr Reynolds' injury is one arising out of the use of a vehicle and giving rise to a liability for motor accident damages has not been raised.
3. Finally, in response to a concern raised that the plaintiff might fall between two stools, if a South Australian Court were to determine a connection with Victoria and reject any claim made under South Australian law, the first defendant drew my attention to Part 6, Division 4 of the WIRC Act concerning court determinations of the State with which a worker's employment is connected. That Division includes s 316(1)(c) which provides:

(1) If a determination of the State with which a worker's employment is connected has been made -

(c) by a court of this State or another State in the course of proceedings on a claim for damages -

the State so determined is to be recognised for the purposes of this Act... as the State with which the worker's employment is connected.

1. The equivalent provision in South Australia is found in s 12 of the RTW Act.
2. Subject to hearing from the parties, I propose making a determination in accordance with s 316(1)(c) of the WIRC Act that South Australia is the State with which Mr Reynolds' employment is connected. Consequent to the answers to the separate questions I will make orders dismissing the worker's proceeding and the contribution proceeding. I invite the parties to submit a minute of order.

[1] [2025] VSC 689.

[2] This chronology of agreed facts has been taken from the statement of agreed facts dated 9 December 2025 and the supplementary statement of agreed facts filed on 23 January 2026.

[3] As exhibited to the affidavit of C Haddad sworn 29 January 2026.

[4] These documents are exhibited to the Affidavit of C Haddad sworn on 15 October 2025 in support of the application

[5] See, for example, S 9AA(3) of the Workers Compensation Act 1987 (NSW), s 36B(3) of the Workers Compensation Act 1951 (ACT),, 53AA(1) of the Return to Work Act 1986 (NT), s 113(3) of the Workers' Compensation and Rehabilitation Act 2003 (Qld), s 529(1) of the Workers Compensation and Injury Management Act 2023 (WA) , s 31A(3) of the Workers Rehabilitation and Compensation Act 1988 (Tas).

[6] Specifically s 71(8) provides that a liability to pay damages does not arise unless a successful claim for compensation ...has been made under Part 4. While this may not itself invalidate the proceeding, s 71(3) provides

A worker cannot commence proceedings in a court for damages within the scope of subsection (1) unless or until an assessment of the degree of permanent impairment of the worker has been undertaken under Part 2 Division 5.

[7] Plaintiff, 'Outline of Plaintiff's Submissions' filed 28 January 2026 ('plaintiff submissions'), quoting Second Reading Speech, p 694.

[8] Plaintiff submissions [27], referencing the affidavit of M Koutrouzas sworn 9 October 2025.

[9] [2006] VSCA 171.

[10] [2017] VSCA 66.

[11] Accepting that the question does not presently arise, the plaintiff nevertheless disputes that s 71 of the RTW Act operates in this way against a non-employer defendant.

[12] [2006] ACTSC 5.

[13] [2008] WADC 78 ('Tamboritha').

[15] [2010] ACTCA 21 ('Avon').

[16] Avon, [32] (Gray P, Penfold and Marshall JJ).

[17] [2013] VSC 102 ('Wadley').

[20] [2013] QSC 78.

[22] [2020] ACTCA 44.

[23] The introduction of s 80 of the Accident Compensation Act 1985 (Vic), predecessor of s 37, in 1985 in identical terms, and the introduction of s 10 in the W_orkers Rehabilitation and Compensation (Territorial Application of Act) Amendment Bill_ in 2006, predecessor to the provision in the RTW Act passed in 2014.

[25] Papas v WorkCover Corporation (Dnister Ukrainian Credit Co-operative) [2013] SAWCT 9.

[27] As set out in footnote [7] to paragraph [23] of the Reasons.

[28] [2020] SAET 35 ('Oldman').

[29] Oldman [49] quoting Hansard, House of Assembly 8 June 2014.

[30] There were a small number of exceptions to these regular tasks, some of which still involved different driving into Victoria, and somewhere between 5 and 10 days that did not involve any time or tasks in Victoria, per agreed fact 10.