Singh v WorkCover Queensland [2019] QDC 177

[3] On 27 October 2017 the applicant served on Surfside Bus Lines Pty Ltd ("Surfside") a part one notice of claim under the Personal Injuries Proceedings Act 2002, alleging that he suffered personal injury at about 8 pm on 19 September 2016 while working at Surfside's bus depot at Ourimbah Road Tweed Heads in New South Wales, when he slipped on a wet bus ramp.[1] It was alleged that he had suffered disc protrusion at the L5/S1 level, a tendon injury to his left shoulder, and an adjustment disorder. On 22 June 2018 the applicant served a notice of claim under the Act on the respondent, and on QRoyal Pty Ltd, his employer, in respect of the same incident.[2] The notice claimed a total of $370,512.90 damages.

[4] In response the solicitors for the respondent advised on 28 June 2018 that the effect of s 113 of the Act was that the applicant was not entitled to proceed with a claim for damages under the Act.[3] The applicant's solicitors rejected that proposition, but the respondent's solicitors persisted, and the applicant has brought this application to resolve the issue. If the effect of s 113, in the events that have happened, is that the applicant is not entitled to pursue a claim for damages under the Act, it follows that it is not appropriate to make an order for a compulsory conference; indeed, the court does not even have jurisdiction to entertain this application. It is therefore important that that question be determined before anything else is considered.

[5] I should add that, given the amount claimed in the notice of claim under the Act, and bearing in mind what is deposed to in the affidavit of the solicitor for the applicant, sworn 29 August 2019 and filed by leave, para 14, I am satisfied that, in terms of the amount claimed by the applicant, the matter is otherwise within the jurisdiction of the District Court. This court will have jurisdiction therefore, provided that the applicant is not precluded by s 113 from proceeding under the Act.

[6] Section 113 of the Act provides relevantly as follows:

"(1) Compensation under this Act is only payable in relation to employment that is connected with this State.

(2) The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to employment that is connected with this State.

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

(b) if no State or no 1 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 1 State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

(6) In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer.

(7) 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] Surfside operates bus services in and around the Gold Coast, which operate from bus depots, one of which is located at Molendinar in Queensland and one of which is located at Tweed Heads in New South Wales.[4] International Cleaning Services Australia Pty Ltd ("ICSA") is a contractor which had been engaged by Surfside at the relevant time to undertake cleaning and related services on buses of Surfside at those depots, and perhaps additional services, though the bus cleaning services at those depots had in turn been the subject of a sub-contract to the employer. At the time the employer's supervisor at the Tweed Heads depot was Sarpuneet Singh, who was authorised to recruit staff to work at that depot, but not at other depots.[5]

[8] The applicant said that he knew Sarpuneet Singh, who had told him there might be a job available and to attend an induction course being conducted by Surfside at its Molendinar depot.[6] The applicant did attend, and was subsequently offered work at the Tweed Heads depot.[7] The applicant said that he would have preferred to work at the Molendinar depot, but was told that work was not available for him there, and took shifts at the Tweed Heads depot on the basis that, when he was able to move to the Molendinar depot, he would like to do so. He said that he asked about a position at that depot from time to time, but was told that no such position was available.[8]

[9] It was common ground that it was a condition of the employment of all of the employer's employees that they be available to work at other depots if required, but this was not something that was ever required of the applicant.[9] The applicant's work involved cleaning and refuelling buses, and driving them in the area of the depot so as to be positioned for use when ready.[10]

[10] The applicant said he was injured at work on 19 September 2016, though the employer maintained that there was no report at that time of the injury.[11] The employer said that the applicant's employment was terminated on about 26 September 2016 because of poor work performance, following complaints from ICSA's supervisor at the Tweed Heads depot.[12] Before his employment was terminated, he was offered a transfer to the depot at Molendinar, but he declined that offer.[13] At this time the applicant was not actually working because of his injury, and lodged a claim for compensation on about 13 October 2016, after his employment was terminated.[14]

[11] The applicant's argument is that what happened here was that he was seeking employment at the Molendinar depot, and that there was a common intention between him and the person who employed him, Mr S Singh, that he would work there in due course, though he was temporarily working at Tweed Heads until a vacancy arose. Reliance was placed on the terms of s 113(6) of the Act, with a view to showing that there was actually a common intention that the applicant would ultimately be employed at Molendinar, in Queensland and that his employment in New South Wales was only temporary. The difficulty with that argument, in my opinion, is that Mr Singh had no authority to employ the applicant in a position in which he would usually work at Molendinar. So he had no authority to put in place a contract of employment which gave effect to any such common intention. All he had authority to do, and therefore all he could have done, was employ the applicant to work at Tweed Heads, on an indefinite basis.

[12] The applicant may have been looking for a position at the Molendinar depot, and may have wanted one, and intended to move there when such a position became available, but any such move would on the evidence have required either fresh employment at that depot, or a transfer of his employment from Tweed Heads to Molendinar depot. Unless and until that happened, his employment simply involved him working at Tweed Heads, unless until he was specifically required to work at some other depot, which never occurred.

[13] I accept that the section contemplates that a person may usually work at more than one place, and hence in more than one state. I also accept that a situation can easily arise, where an employee is injured quite early in the employment, where the intention of the parties as to where the employment is to be carried out will be of more importance than what has actually occurred up to that date. But this was not a situation where the employment the applicant had, at the Tweed Heads depot, required him as part of that employment usually to work in Queensland as well as in New South Wales. It seems to me that it is not to the point that the applicant wanted to work in Queensland rather than New South Wales, and intended to do so when the opportunity arose, because that did not reflect the terms and practice of his current employment, nor would it reflect his current employment unless there was some change to the nature of that employment, in terms of where he was working. No such change had been arranged or agreed to prior to the time of the applicant's injury.

[14] The mere fact that in the applicant's current employment he could be required to work in Molendinar does not mean that he usually worked at that place, and hence in Queensland. To satisfy the requirements of s 113(3)(a), it is in my opinion necessary for work in the relevant state to be something more frequent and regular than the mere possibility of an employee being required to work there temporarily, which was all that was an established part of his employment at the time of the injury. If it had been a regular practice for that requirement to be called upon, so that it could be said that it was usual for it to be called upon, and as a result for him to work at Molendinar, the position would have been different. As things stood, on the evidence it was a mere theoretical possibility, which does not amount to usually working at that place.

[15] It also seems to me that the operation of s 113 is not affected by the fact that the applicant wanted to work at Molendinar, and was seeking to transfer his workplace from Tweed Heads to Molendinar, in circumstances where there was no definite arrangement in place for that to occur prior to the time of the accident, and where at that stage the position was that he was working indefinitely at Tweed Heads, unless and until there was some change in order to transfer him to Molendinar. Even if that had been an intention common between him and his employer, so long as the implementation of that intention remained conditional upon the occurrence of events not within the control of either of them, in this case a vacancy arising at Molendinar, it would be premature to speak about Molendinar as a place where the applicant usually worked, even bearing in mind the terms of subsection (6). The position would remain simply that he usually worked at Tweed Heads, though there was the prospect of that situation changing in the future. That, in my opinion, would not be enough to affect the operation of s 113(3)(a).

[16] The subsection operates in a cascading way, so that, if paragraph (a) identifies a single state, that is the state with which the employment is connected for the purposes of the section. It is only if it can be said that, at the time of the injury, the applicant's employment was connected with Queensland as well as with New South Wales, that it would be necessary to move on to consider paragraph (b). I do not consider that situation arises here, but in case a different view may be taken elsewhere, in my opinion, at the time of the injury, the applicant remained usually based in New South Wales for the purposes of his employment, so that again the test means that the employment was not connected with Queensland, and therefore compensation under the Act is not payable. It is only if neither paragraph applies, so that resort needs to be had to paragraph (c), that an outcome is produced that the applicant's employment was connected with Queensland.[15]

[17] It was submitted that the effect of subsection (7) meant that the temporary employment of the applicant in New South Wales should be disregarded in applying the section. I do not consider that subsection (7) applies, because that provision depends on the proposition that the employee is working in a different state temporarily under an arrangement for the work to be for not longer than six months. That follows from the structure of the subsection. In the present case, although it was true that the applicant had worked for less than six months, the employment under which he worked there was not for any specific period of six months or less; rather it was employment of indefinite duration, even if both parties intended there to be a change at some undefined time in the future in the place at which the work was done. Even if this arrangement could be characterised as a temporary arrangement, it was not a temporary arrangement for a period which was necessarily not longer than six months. But I do not regard it as a temporary arrangement; rather the applicant was employed to work at that particular place indefinitely, and there was no arrangement in place for him to work in Queensland on a more long term basis, and in such circumstances he could not be said to be working under a temporary arrangement, even if his intention was not to stay there for longer than he had to wait before a more conveniently located position in Queensland became available to him.

[18] Section 113 was considered by Applegarth J in Ferguson v WorkCover Queensland [2013] QSC 78. The applicant worked as a delivery driver based at a warehouse in Tweed Heads but made deliveries both in Queensland and in New South Wales, driving in both states for the purpose of doing so. The applicant claimed that the substantial majority of his deliveries were in Queensland. On the particular day in question, he had three deliveries in Queensland and three in New South Wales. After completing the former he was engaged in delivering a hot water system in New South Wales when he suffered an injury. The matter in issue was whether the Act applied to his claim for damages, and his Honour held that it did not.

[19] Section 113 on its face is concerned with an entitlement to compensation rather than with any claim for damages for the injury,[16] but the connection between the two was explained by his Honour in this judgment, and I adopt without repeating his Honour's exposition. It is convenient to do this in circumstances where this issue was not contentious before me, that is, the applicant's counsel accepted that it was necessary for the applicant to satisfy s 113.

[20] His Honour noted at [21] that paragraph (a) was not determined simply by the state in which the worker spent the majority of his or her time at work. His Honour reviewed a number of decisions from interstate, and at [32] applied the test indicated by those decisions, that the expression "usually works" means the place where the worker habitually or customarily works, or works in a regular manner. At [33] his Honour said that an occasional, even regular attendance in another state for training or attendance at a meeting may not constitute a sufficient connection. Occasional presence in a state for work-related purposes will not necessarily mean that the worker usually works in that state.[17] His Honour also said at [44] that it was incorrect to focus on what happened just on the day of the incident, and it was necessary to have regard to the worker's usual working weeks, months and years that preceded it.

[21] In that case his Honour held that the applicant usually worked in Queensland and also usually worked in New South Wales, and therefore it was necessary to have resort to paragraph (b), and that in the circumstances the applicant was usually based in New South Wales for the purposes of his employment. That decision provides a useful exposition of the approach to the interpretation and application of s 113.

[22] I was also referred to the decision in Weir Services Australia Pty Ltd v Allianz Australia Insurance Ltd [2013] NSWSC 26. In that case, it was held that a short period of employment which was not itself part of a longer or indefinite period of employment was not a "temporary arrangement" for the purposes of the New South Wales equivalent of s 113(7). The proceeding involved a dispute between the employer and the insurer, but what was determined was that a fitter who was engaged specifically to work for a short period on a particular project, expected to last 14 days with the possibility of extension in order to be able to complete the job, was employed within the state where that contract was carried out, so that that state was the state of connection for the purposes of the New South Wales Act. The case is of some relevance, in that it shows that, even if the employment at the Tweed Heads depot could be regarded as temporary employment, in circumstances where there was no established employment at Molendinar, subsection (7) would not assist the applicant.

[23] The position therefore is that the applicant was not entitled to compensation under the Act, and therefore is not entitled to pursue a claim for damages in accordance with the Act. It follows that he cannot qualify as a claimant for the purposes of the Act, and is not a party for the purposes of the Act, and in particular for the purposes of s 289(6). So the jurisdiction of this court has not been validly invoked, with the consequence that the application must be struck out, with costs.[18]

[1] Affidavit of Dwyer para 3, exhibit JSD1.

[3] Ibid para 8, exhibit JSD6. For what follows, paras 10-13.

[4] Affidavit of Kaur para 4. This is a reference to the affidavit sworn 3 September 2019; the affidavit filed 30 August 2019 was not read before me.

[6] Affidavit of applicant (2) para 4. There were two affidavits of the applicant, both sworn on 2 September 2019, and filed by leave. The longer one, with thirty-three paragraphs, I will refer to as (1), and the shorter one, with 15 paragraphs, as (2).

[8] Applicant, during cross-examination.

[9] Affidavit of applicant (1) para 13; affidavit of Kaur para 15.

[11] Affidavit of Kaur para 11. The applicant said he reported it to the ICSA supervisor at the depot: affidavit (2) para 13.

[13] He said that by then he did not trust the employer: affidavit of applicant (2) para 14.

[14] Ibid para 14; affidavit of applicant (1) para 24, exhibit TS2.

[15] This was not contentious. See affidavit of Kaur para 3.

[16] They are quite different heads of liability: SS Family Pty Ltd v WorkCover Queensland [2018] QCA 296 at [16].

[17] See RHG Home Loans Pty Ltd v Employers Mutual NSW Ltd [2011] QSC 28; [2012] 1 Qd R 262.

[18] Civil Proceedings Act 2011 s 28(3).