Stuckey v Wesley Contracting NSW Pty Ltd & Anor

The plaintiff's early employment history

1. The plaintiff was born in 1953 in Lithgow. He grew up in that town. He attended Lithgow High School which he left aged 16 years, having obtained the School Certificate. He then obtained an apprenticeship as a carpenter but that lasted only three months. He then obtained an apprenticeship as a fitter and machinist but that lasted only six months - he was unable to pass the mathematics test at TAFE. At some stage he joined the Navy but that lasted only three months - he did not get through recruit school. He also had a job as a shop assistant in a local hardware store in Lithgow for six months. His final non-mining job was with NSW Railways, firstly as a station assistant and then as a shunter. He worked for the railways for a "couple of years."

The plaintiff joins the coal industry

1. Aged 20 years, the plaintiff joined the coal industry on 2 May 1974. He said that his first employer was Coalex. He worked for that company as an underground Federation coalminer. Initially he worked for three months in the Wolgan Valley Colliery but was then transferred to the Wallerawang Colliery. In 1982 he obtained qualifications as a deputy and then commenced working as such. On 13 December 1985 he resigned this employment with a view to moving to the Central Coast or Lake Macquarie area, to work in the mines there, rather than in the western coal fields. That move was not immediate. Between 7 April 1986 and 22 August 1986 he worked for Austen and Butta Pty Ltd in the Grose Valley Colliery as an underground deputy.
2. Between 25 August 1986 and 30 January 1987 he worked for Coal and Allied Operations Pty Ltd at the West Wallsend Colliery in Newcastle as an underground Federation miner. On 2 February 1987 he commenced working at the Cooranbong Colliery as an underground Federation miner. On 1 March 1994 he was examined by a Medical Panel which certified a 2% loss of hearing in the left ear and a 1% loss of hearing in the right ear. He was paid corresponding lump sums under s66 of the 1987 Act and an Award was entered accordingly in the Compensation Court of NSW on 24 May 1994. In addition to sustaining a hearing loss whilst at the Cooranbong Colliery, the plaintiff also suffered injuries to his back, shoulders and knees. He accepted a redundancy payment (T43.29) on 29 March 2002. He also agreed to a redemption of his workers compensation rights on 11 April 2002 for $90,000. The redemption was approved by Truss CCJ (as she then was). Inter alia, her Honour noted this: "The Worker agrees that because of his injuries, disabilities and constant need to protect his future health and welfare, he is not fit for work about or in connection with, the operation of a coal or shale mine and agrees not to accept employment or to work in any capacity (including without limitation, as an employee, independent contractor, outworker, tributer or mine worker within the meaning of the Coal & Oil Shale Mines Workers (Superannuation) Act, 1941 or as a volunteer or rescuer) about or in connection with the operations of a coal or shale mine in New South Wales." The employers who obtained the benefit of the redemption of their liabilities were all those who has previously employed him in the coal industry.
3. That redemption excluded any liability for BMD. The plaintiff was again examined by a Medical Panel on 6 November 2002, but that Panel only found a 1% loss of hearing in the left ear! He was, therefore, not entitled to any further lump sum for BMD.

Work outside the coal industry

1. The plaintiff's first job outside the coal industry was with the Bolton Point Child Care Centre as a cleaner and maintenance man. He did that work for 12 months. He then worked for the Newcastle Pendlebury Clinic (a cardiac clinic) at Cardiff for 18 months again as a cleaner and maintenance man. It is unlikely that such work remunerated the plaintiff as well as work in the coal industry. He therefore looked for similar work and found it in Queensland.

Work in the coal industry in Queensland

1. Between 9 January 2006 and 17 June 2007 the plaintiff worked for Henry Walker Eltin Pty Ltd at the Broadmeadow mine in Moranbah. He worked underground as a deputy. He worked on a fly in, fly out ('FIFO') basis, a repeating cycle of 5 days work, 4 days off, 4 days work, 3 days off. Between 18 June 2007 and 23 July 2007, he worked for Titans Mining at the Cook Colliery at Blackwater. That was also deputy's work on a FIFO basis.

Return to work in the coal industry in NSW

1. Sometime in the first half of 2007, a friend of the plaintiff (T16.15) told the plaintiff about Mr Garth Short and gave to the plaintiff Mr Short's telephone number. The plaintiff phoned Mr Short and arranged to meet him in his home in Upper Cessnock, in April (T20.37). Mr Short had a "small contracting company" (T21.35) and he has "putting on deputies" (T21.29). He had work available "in the Hunter Valley area, Singleton area" (T16.31). He offered the plaintiff work as an underground deputy. The plaintiff by this time was living in a lakeside suburb near Toronto, not far from CMI's premises in Newcastle. The idea of working locally again would have been very welcome to the plaintiff. Eventually he incorporated the first defendant. "Wesley" is the name of the street in which he was then residing. The first defendant was registered on 9 June 2007. He attempted to obtain insurance, before he incorporated, from CMI (T17.10). He spoke with a gentleman on the telephone and was told he could not obtain insurance. That man gave the plaintiff this explanation: "… you've received a redemption and the … policy from Coal Mines Insurance was if you have been paid out … as a redemption you can't work in the mining industry in New South Wales again, for life." It is quite plausible that he was given some such explanation in light of his agreement on 11 April 2002, noted in [7] above. I hasten to add that I have been asked on many occasions, by consent, to delete a notation such as recorded in [7] above, to enable a coalminer who has received a redemption to return to the coal industry. If CMI have a policy, it is not inflexible.
2. The plaintiff took advice from Mr Jim Taylor, "a deputies' union rep", Mr John McDonald, solicitor, and his accountant (T21.02, T23.15). Clearly that advice was to incorporate his own company and for that company to employ him. So it came to pass. However, the first defendant still required insurance. The plaintiff consulted Ms Murnane of Murnane Garaty Brokers of Adamstown. A proposal was made to Allianz (exhibit H). Relevant parts of the proposal are these: Effective date: 19-07-07 Expiry date: 19-07-08 ACN: (supplied) ABN: (supplied) Registered for GST: Yes Business location: Anywhere in NSW What business are you in?: Underground mining Which services do you provide? Deputy Statutory Services & Supervision Description of work performed by employees: Deputy Underground Mining Total number of employees: 1 The proposal is dated 18 July 2007 and was signed by the plaintiff.
3. The proposal ought to have set alarm bells ringing at Allianz but that does not appear to have occurred. I make that statement for these reasons: 1. "deputy" is a technical term in the coal industry and is not used in e.g. hard rock mining. The Shorter Oxford English Dictionary, 5th Edition, 2002, gives to the word used as a noun, meaning 2(c): "An overseer responsible for safety in a coalmine M19 [i.e. 1830 to 1869]. The Oxford English Dictionary, 2nd Edition, 1989, merely gives the meaning: "an officer in a coal-mine" and then cites a publication of 1851, "Coal-trade Terms: Northumberland and Durham"; it is unsurprising that the terminology of Newcastle on Tyne is used in Newcastle on Hunter; 2. the contact details for first defendant were the plaintiff's name and home address and his mobile telephone number (these details including his street address, "Wesley") and disclosed only one employee in "underground mining": what underground mining could be conveniently performed from suburban Newcastle? The self-evident answer is coal mining. Nevertheless, underwriters at Allianz accepted the proposal and insured a statutory policy MWN 6022987 033 for one year commencing on 9 September 2007, the date of the first defendant's incorporation (exhibit J).
4. The first defendant then contracted to Statsure (one of Mr Short's companies) from 26 July 2007 to 22 January 2008, and then to Garth Short Mining Pty Ltd from 25 January 2008 to 7 December 2011 (exhibit G). The first defendant provided to the other companies the service of the plaintiff as a deputy. Under these arrangements the plaintiff worked at: Ashton Colliery at Singleton Glennies Creek Colliery at Singleton Austar Colliery at Cessnock Chain Valley Colliery at Lake Macquarie This was full time work, "at least 40 to 50 hours a week" (T33.09).

Further work in Queensland

1. There was no further work available for the plaintiff/first defendant in NSW. The plaintiff gave evidence that "through the first defendant" work was obtained from Statcoal Pty Ltd to work in Queensland at the Oaky North Colliery from 12 December 2011 to 7 August 2012. This was FIFO work. Whilst in Queensland, the plaintiff lived in a mining camp. The principal of Statcoal Pty Ltd was Mr Terry Sharpe with whom the plaintiff had worked at the Chain Valley Colliery. An attempt was made to lead evidence from the plaintiff that Statcoal Pty Ltd was "registered in New South Wales, of which he is a director" but that could only be hearsay and I have ignored it, as Mr King SC (for the second defendant/CMI) objected to it.
2. There is no evidence that the first defendant obtained, or attempted to obtain, insurance in Queensland, indemnifying itself under the workers compensation legislation of that State. Rather, the evidence is that the plaintiff took out "Workplace Personal Injury Insurance" with WorkCover Queensland at least for the period of one year commencing 1 July 2012. That was cancelled on 3 October 2012 and the plaintiff obtained a refund of the greater part of the premium he had paid for the year's cover: exhibit N. This suggests that the plaintiff's work in Queensland from 12 December 2011 may not have involved the intervention of the first defendant, but, if so, that was not raised or explored by the parties and I proceed, therefore, on the basis that that period of employment of the plaintiff was by the first defendant.
3. The plaintiff has not been employed since. There was a downturn in the coal industry in both NSW and Queensland and there was not work available in the industry for the plaintiff in either State. The plaintiff has only done voluntary, charitable work since.

The Claims

1. The plaintiff gave a "Notice of Injury" for a claim for lump sum compensation for BMD on 2 September 2013. That was addressed to the first defendant (exhibit 1). That notice listed the plaintiff's employers in the coal industry in both NSW and Queensland and provided as the "last day of employment with that employer" 7 August 2012, when, according to the notice itself, he was employed by the first defendant, subcontracted to Statcoal Pty Ltd. The fact that that employment was in Queensland is not disclosed by the notice. The notice was prepared by the plaintiff's solicitor, and obviously was sent to Allianz. That led to the Medical Panel examination on 14 November 2014.
2. These proceedings were commenced on 25 February 2016. The originating process nominated as the (first) defendant's insurer CMI "pursuant to Section 7A". The date of injury pleaded was 7 December 2011, not 7 August 2012 as originally alleged. No appearance or defence was filed to that document. A "First Amended Statement of Claim" was filed on 29 June 2016, but that merely added a claim for hearing aids, which was subsequently abandoned. On 1 August 2016 the plaintiff executed a further "Notice of Injury" addressed on that occasion to the second defendant, otherwise notifying the same claim as notified on 2 September 2013. That appears to have been served on CMI. On 26 September 2016, the plaintiff filed and served the Second Amended Statement of Claim, which has now been substituted for the initiating process. That nominated both Allianz and CMI as insurers of the first defendant and joined the second defendant. That document maintains as the date of injury 7 December 2011.

Applicable law

1. As I said in [2] above, there is no dispute that the first defendant employed the plaintiff in an employment to the nature of which BMD was due. That employment was in NSW until 7 December 2011, but then in Queensland until 7 August 2012. Can the plaintiff recover lump sum compensation under NSW law, the 1987 Act?
2. In Russo v World Services & Construction Pty Ltd [1979] 1 NSWLR 330; [1979] WCR (NSW) 70 the worker was employed by the respondent from January 1967 until 2 November 1972. He was employed by the Department of Defence (Navy) at Garden Island Dockyard from 6 November 1972. Whilst so employed, the worker gave notice of injury to the respondent, claiming lump sum compensation for BMD. At first instance, Wall J said: "The respondent argues that in fact the Commonwealth was the last employer and that the State Act allows recourse only to the last employer. It is being argued that in effect there is a casus omissus in the legislation and it is the applicant's misfortune to have been left without a remedy under the Workers' Compensation Act. It should be mentioned that there are elements of misfortune because although the applicant was entitled to make a claim against the Commonwealth and in fact did so, he was paid merely a part of his industrial deafness under calculations and assessments purporting to be in conformity with s 39(9) of the Commonwealth Act. It is argued on behalf of the applicant that the expression "the employer … who last employed the worker" means the employer to which the Act can apply and in this instance on material placed before the Court, that would be the present respondent. In my view, it is to be held that the Act cannot be taken to be purporting to deal in any way with matters which arise under the Compensation (Australian Government Employees) Act 1971-1973. It is clear that the Commonwealth Parliament has exclusive power to deal with such matters either ex necessitate or specifically in this instance under s 52(ii) and s 69 of the Constitution. Our Act should be interpreted, if possible, so as to retain its maximum legislative liability: ut res magis valeat quam pereat. It is clear in my mind that the respondent is to be taken as the last employer within the meaning of the appropriate legislation." The employer's appeal to the Court of Appeal was dismissed. Hope JA (with whom Hutley and Mahoney JJA agreed) pointed out that the Workers Compensation Act 1926 (the '1926 Act') did not purport to bind the Crown in right of the Commonwealth and could not constitutionally do so. That led his Honour to the conclusion that "the Commonwealth is not an employer within the meaning of s 7(4) of the [1926] Act." His Honour went on to say: "The New South Wales legislation can have complete effect without being construed so as to include the Commonwealth within its operation. These circumstances seem to me to provide adequate reason for construing the Act so as to exclude the Commonwealth from the employers upon whom obligations are imposed throughout the Act. If the latter view be wrong, recourse can be had to s. 14A of the Interpretation Act, 1897. This section was inserted in 1969, but is expressed to apply to Acts passed before or after its commencement. Section 14A (1) of the section provides as follows: "An Act shall be read and construed as operating to the full extent of, but so as not to exceed, the legislative powers of the State, to the intent that where any provision of the Act, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of those powers, it shall be a valid provision to the extent to which it is not in excess of those powers, and the remainder of the Act and the application of the provision to other persons, subject-matters or circumstances shall not be affected." If the meaning to be given to the word "employer" in s. 7 (4) is not to be read down for the reasons already expressed, then s. 14A would require that reading down. For the reasons previously expressed, it was beyond the power of the New South Wales legislature to impose obligations on the Commonwealth by the provisions of the Workers' Compensation Act. If, on its proper construction, it purports to do so, then subject to qualifications which have been discussed in a number of decisions of the High Court, s. 14A would require the Act to be read down so that the employers on whom those obligations are imposed, and in particular those referred to in s. 7 (4), do not include the Commonwealth. It cannot be said that to read down the statute in this way is to give it a meaning of effect which otherwise could not have been intended. For a number of reasons, and in particular because of the existence in 1926 of the Commonwealth Workmen's Compensation Act 1912, it is difficult to imagine that the New South Wales legislature intended that the word "employer" should include the Commonwealth. If on its proper construction it does, there would seem to be no difficulty in the way of applying s 14A so as to exclude the Commonwealth from the employers upon whom it imposes obligations. If the word "employer", when used in s. 7 (4), does not include the Commonwealth, the worker had no employer within the meaning of the section at the date of the application, and the company was the employer, within the meaning of the section, who last employed the worker. It has been pointed out that this could result in the anomaly that a person in the position of the worker could obtain some duplication of compensation. The award of Judge Wall does not result in that duplication but, even if it did, the view contended for by the company would leave the worker without compensation for the degree of boilermaker's deafness which he had at the time when he ceased to be employed by it" The 1926 Act did not apply to the Commonwealth, not because of lack of territorial jurisdiction by this State, but because of the lack of constitutional jurisdiction by this State.
3. A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; (1996) 14 NSWCCR 158 concerned the territorial jurisdiction of this State. Handley and Sheller JJA agreed with Beazley JA (as she then was). Her Honour recited these facts: "The respondent commenced employment with the appellant in 1976, initially as a cleaner and later as a welder's assistant, which involved working in a noisy environment. In 1988, he moved to the Northern Territory where he had two different employments including one in his son's refrigeration business, T & G Refrigeration. The respondent returned to New South Wales and recommenced employment with the appellant on 25 July 1990. However, he resigned on 14 September 1990. During this period he worked in the same noisy conditions as previously but was provided with ear muffs. After leaving the appellant's employment, the respondent returned to the Northern Territory and again worked for some three years in his son's refrigeration business. During the course of that employment, he occasionally went into his son's workshop where a grinder was in use. However, these visits were brief. He also undertook part-time work at Tennant Creek High School, performing what might be described as grounds maintenance work. On occasions, he mowed the school lawns but said the mower was no noisier than a motor vehicle. The trial judge found that the employment with T & G Refrigeration was an employment to the nature of which the injury was due and that with Tennant Creek High School was not." Maguire CCJ (as he then was) held that the appellant was liable to pay compensation to the worker as s 17 of the 1987 Act made it the last employer by whom the worker was employed in an employment to which the nature of the injury was due. After quoting s 17, her Honour said: "Counsel for the appellant submitted that upon its true construction, s 17(1)(c)(ii) should be read as if there were inserted into its provisions the words which are italicised as follows: "compensation is payable by - (ii) … the last employer by whom the worker was employed in an employment to the nature of which the injury was due but only if the last such employment was in New South Wales before he or she gave notice." Counsel acknowledged that the effect of this construction was that a worker, who had suffered a hearing loss in New South Wales, but whose last noisy employment was with an employer located outside New South Wales could not use the provisions of s 17 to claim compensation from the New South Wales employer. He submitted that the worker, in that case, would be required to prove, through the combined operation of ss 4, 9 and 66, the extent of the loss caused by the employment in New South Wales and that the employer against whom the claim was made, actually caused the loss for which the claim was made. Section 17, as the appellant's case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann (1932) 47 CLR 426 at 440; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689-690, s 17 proceeds on a series of fictions or assumptions, upon which a worker's entitlement to recover an award under s 66 is based. In the present case, the last noisy employment was in the Northern Territory. However, the Act does not have extra-territorial operation so as to make T & G Refrigeration liable as the last employer under s 17: see Mynott v Barnard (1939) 62 CLR 68. That being so, s 17 operates so as to make the appellant the last employer. In other words, the appellant is the last employer to whom the legislation applies and is thus liable to pay compensation. This construction of s 17 is confirmed by this Court's decision in Russo v World Services and Constructions Pty Ltd. In that case, the Commonwealth was the last noisy employer and the respondent the noisy employer before that. It was held that, as the Commonwealth was not bound by the provisions of the New South Wales legislation, the respondent was the last noisy employer for the purposes of s 17 and thereby liable to pay compensation. Given the fictional basis upon which s 17 proceeds, the construction for which the appellant contends involves the implication of language for which there is not only no warrant, but which runs counter to the very purpose of the section. If follows that the appeal should be dismissed with costs." If this remain the relevant law, which is other than CMI contends, then, subject to one factual distinction, it appears that the plaintiff is entitled to succeed under the 1987 Act.
4. Lennon v TNT Australia Pty Ltd [2013] NSWCA 77 also concerned a claim for lump sum compensation for BMD. Relevant facts and how the matter came before the Court of Appeal are succinctly stated by Basten JA (with whom Macfarlan and Barrett JJA agreed) at the commencement of his judgment: "1. The applicant, Mr Robert Lennon, has been employed as a driver by TNT Australia Pty Ltd ("TNT") for some 15 years. During the course of that employment he was exposed to loud noise and now suffers a binaural hearing loss, which constitutes a permanent impairment. 2. On 24 March 2011 the applicant made a claim for lump sum compensation under the Workers Compensation Act 1987 (NSW) ("the 1987 State Act"). The claim was resisted on the basis that from 1 July 2008 TNT had been licensed under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Commonwealth Act") to make compensation payments in accordance with the scheme provided by the Commonwealth Act. An application was made to the Workers Compensation Commission (NSW) to resolve the dispute. The President, acting pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act"), accepted a question of law for determination as a preliminary issue. 3. The question was identified in the proceedings before the President of the Commission as follows: "Whether by operation of s 17(1)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act), the applicant's binaural hearing loss is deemed to have occurred on 30 June 2008 when the employer ceased to be insured under the New South Wales Workers Compensation Acts or on 24 March 2011 when the claim for compensation was made, at which time the employer was insured under the Safety, Rehabilitation and Compensation Act 1988 (Cth)." 4. In Lennon v TNT Australia Pty Ltd [2012] NSWWCCPD 18, delivered on 30 March 2012, the President answered the question as follows: "By operation of s 17(1)(a)(i) of the Workers Compensation Act 1987, the applicant's binaural hearing loss is deemed to have happened on 24 March 2011, when the claim for compensation was made." 5. The present appeal is brought from the answer to that question." Commencing at [20] his Honour commenced discussing liability under the law of this State. After referring to the terms of section 17 and discussing at some length the two decisions I have just quoted, his Honour went on to say: "32. The argument for the applicant was that, although there was no change of employer in the present case, TNT changed from being an employer which was covered by the State Act, to one which was not. Accordingly, the reasoning in Russo and A & G Engineering should apply on the basis that the applicant had no "employer" for the purposes of the 1987 State Act after 30 June 2008 and hence at the time he gave notice of his claim. 33. Section 17(1)(a), set out at [23] above, does not focus on the "employer" but on "an employment", to be characterised according to the injury; the purpose of par (a) is to identify the time of the injury. However, s 17(1) read as a whole has three purposes in relation to an injury caused by a gradual process, namely: (a) to identify the time at which the injury is taken to have occurred; (b) to identify the person responsible for paying compensation, and (c) to make provision for contribution by other employers. 34. The third purpose can be put to one side as not relevant to the construction of the section or the issue in the present case. The second purpose is revealed in s 17(1)(c): "(c) compensation is payable by: (i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury-that employer, or (ii) where the worker was not so employed-the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice ..." 35. The term "employer" is defined in s 4(1) of the Workplace Injury Act in terms which apply equally to the 1987 State Act (see s 2A of the latter Act): "employer includes: (a) the legal personal representative of a deceased employer, or (b) a government employer, or (c) a former employer. Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown." 36. The effect of Russo and A & G Engineering is that the term "employer" does not extend to the Crown in right of the Commonwealth or employers in other law areas within or outside Australia. Because TNT was, from 1 July 2008, no longer an employer to which the obligations of the Act attached, the applicant thereafter did not have an employer for the purposes of the Act. Accordingly, applying the reasoning in those authorities, TNT was liable, not as the worker's employer at the time of giving notice, but as the last employer by whom the worker was employed in relevant employment, before he or she gave notice: s 17(1)(c)(ii). If that is the correct construction of s 17(1)(c), consistency requires that a similar reading be given to paragraph (a), so that the injury was deemed to have happened on the last day on which the worker was employed in a relevant employment before he or she gave notice, which was 30 June 2008. 37. One of the arguments which found favour in Russo turned on the operation of s 14A of the Interpretation Act 1897 (NSW), now to be found in s 31 of the Interpretation Act 1987 (NSW). That section requires that an Act "shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of the Parliament". The section then provides that if any provision "would, but for this section, be construed as being in excess of the legislative power of Parliament ... it shall be a valid provision to the extent to which it is not in excess of that power": s 31(2)(a). Thus, in Russo, the obligation so to construe the 1926 Act led to the term "employer" being read as excluding the Commonwealth, even if it were otherwise capable of including the Commonwealth. 38. The analogous argument in the present case, which was not fully developed, was that, by virtue of s 31(2)(a), immediately the employer obtained the grant of a licence under the Commonwealth Act it would cease to be an "employer" within the meaning of that term in the 1987 State Act."
5. However, his Honour pointed out that that conclusion had to be assessed in light of the reasoning of the High Court in Telstra Corporation v Worthing [1999] HCA 12; 197 CLR 61. He went on to say: "40. To construe the 1987 State Act in the present case as not covering employment in respect of which the State Act was inoperative by reason of the operation of s 109 and the Commonwealth Act, would be to adopt a construction of the State Act which was rejected by the High Court in Telstra v Worthing. Although the reasoning of the Court did not address the argument under the Interpretation Act, it did address the application of the reasoning in Russo, which in turn relied upon that provision. At least by implication, it must be assumed that the High Court rejected any extension of that argument which would now allow the 1987 State Act to be read down so as not to include employment by a licensee under the Commonwealth Act. 41. There are other reasons for not adopting an expansive operation for s 31(2) of the Interpretation Act. It would, in effect, require a reconstruction of each State provision subject to s 109, so as to provide a variable operation, for example with respect to the Workers Compensation Act, depending upon whether a particular employer had or had not been granted a licence under the Commonwealth Act. Such an approach would not be consistent with standard practice in respect of dealing with questions of inconsistency with Commonwealth laws, despite the common occurrence of provisions equivalent to s 31. 42. On the other hand, Telstra v Worthing accepted the correctness of the decision in Russo, which was not challenged by the Attorney General: Telstra at [13] and [20]. Further, Telstra v Worthing was concerned with a series of specific injuries and not with the operation of s 17 of the 1987 State Act. Nor was it concerned with a change in employment, but only with employers, none of which was covered by State legislation. Finally, it was not concerned with the effect, for the purposes of the 1987 State Act, of a single employer obtaining a licence under the Commonwealth Act. 43. In this Court, the respondent did not contend that either Russo or A & G Engineering was wrongly decided. The reasoning in Russo was accepted in Telstra v Worthing; A & G Engineering was not discussed. Because Telstra v Worthing was not directed to the problem raised for the first time in this case, it is appropriate for this Court to follow its own unchallenged earlier authorities. That entails the conclusion that the applicant acquired an entitlement under the 1987 State Act as at 30 June 2008. Even if under the Commonwealth Act his injury is taken to have occurred after the licence took effect, his entitlement under State law is preserved by s 108A(7)(b)."
6. Barrett JA said this: "46. I agree with Basten JA's analysis of the issues in this case and with his Honour's conclusions and reasons. The question identified in the proceedings before the President of the Workers Compensation Commission could, in terms, be answered simply by saying that applicant's binaural hearing loss is deemed to by s 17(1)(a)(i) of the Workers Compensation Act 1987 to have occurred on 30 June 2008 when the employer ceased to be insured under the New South Wales Workers Compensation Acts. It is desirable, however, that the more informative answer proposed by Basten JA be given."
7. In his written submissions, Mr King SC said this: "7. It is submitted that there is nothing in the decisions in Russo, Civitarese and Lennon (supra) which individually or collectively compels the conclusion that the plaintiff's employment in noisy conditions in Queensland is irrelevant. It is correct to say that each of those cases is distinguishable from the present case. Ultimately each is of no assistance to the Court in respect of this matter. Russo held that the 1926 NSW Workers Compensation Act did not apply to the Crown in right of the Commonwealth. Civitarese held that the NSW legislation had no extra-territorial effect. Lennon held that both these decisions were correct according to their terms and that where a state employer ceased to be covered by the State Workers Compensation legislation there was thereafter no "employer", but there was one at the time of the cessation. These decisions do not deal with s 9AA and indeed it did not exist at the time of the earlier decisions. 8. In short, these decisions do not trench upon s 9AA. The Commonwealth is not involved in this case in any form. At s 9AA does not in reality purport to apply extra-territorially. Rather it insists on something relevant happening inside New South Wales. 9. Accordingly it is submitted that this case falls to be decided by reference to s 9AA and it is further submitted that it is plain from the opening subsection of the provision, subsection (1), that it is a limiting provision, restricting an entitlement to compensation under the New South Wales Act to "employment that is connected with this State"."
8. Section 9AA was inserted into the 1987 Act by Act No 124 of 2002 with effect from 1 January 2006. In Lennon, the workers' claim for lump sum compensation was made on 24 March 2011 as his last day of working in NSW when his employer was covered by State law was 30 June 2008. Both these dates are after the commencement of s 9AA. Basten JA was aware of s 9AA as he referred to it in Ballantyne v Workcover Authority of NSW [2007] NSWCA 239; (2007) 5 DDCR 97.
9. I am unable to accede to Mr King's submission. The enactment of section 9AA does not purport to extend liability under the State act to all or any work performed outside of the State, to extend the State's territorial reach. It can be seen to do so in certain circumstances, but there is nothing to suggest that it extends liability under section 17 of the 1987 Act to jurisdictions (or "law areas" if one prefer such terminology) outside NSW. Such was not argued in Lennon, and, if it were, might have a constitutional objection: placing a liability under State law on a corporation covered, relevantly, by Commonwealth law. Lennon does not suggest that Russo and Civitarese are no longer applicable. Indeed, Basten JA pointed out that the correctness of those decisions was not challenged in the High Court in Telstra v Worthing.
10. The only way in which the present case can be distinguished to Civitarese is that in that case the last noisy employer outside NSW had not been the last noisy employer in NSW. However, in Lennon it was the same employer both before and after 1 July 2008 when the employer commenced cover under the Commonwealth legislation. Accordingly, applying Civitarese and Lennon to the facts of the present case, the first respondent was the last employer to employ the plaintiff in employment to the nature of BMD was due, on 7 December 2011, that employment being in NSW.

Section 9AA

1. Despite what I have just held, s 9AA must still be applied, albeit that is quite straightforward in this case. However, as so much hot air and paper has been expended on s 9AA in the current proceedings, it is appropriate to discuss it. The section provides this: "9AA Liability for compensation (1) Compensation under this Act is only payable 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 compensation being payable 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. … (5) If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if: (a) the worker is in this State when the injury happens, and (b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter. (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. 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. … (8) In this section: … State includes Territory and, in a geographical sense, a State's or Territory's relevant adjacent area as described in Schedule 1." I have omitted those provisions relating to workers working on a ship. Section 21 of the Act ("Sailors") was repealed at the same time as this section commenced. Similarly, section 13 was repealed at the same time as s 9AA commenced. Section 13 was in these terms: "13. Injuries received outside New South Wales (1) If - (a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker; and (b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act, the injury is an injury to which this Act applies, and compensation is payable accordingly. (2) Compensation is not payable under this section to the extent to which in respect of any such injury the worker has (and in the case of the death of the worker, his or her dependants have) - (a) received workers compensation under the laws of any country, any State (other than New South Wales), the Commonwealth or any Territory of the Commonwealth; or (b) obtained judgment against the worker's employer independently of this Act. (3) If the worker receives compensation under this section in respect of any such injury and subsequently in respect of the injury receives workers compensation under the laws of any country, any State (other than New South Wales), the Commonwealth or any Territory of the Commonwealth or obtains judgment against the worker's employer independently of this Act, the employer is entitled to recover from the worker an amount equal to the lesser of the following amounts: (a) the amount of compensation paid by the employer under this section; (b) the amount of workers compensation received by the worker or of the judgment obtained by the worker otherwise than under this Act." In the present case, had not the case law which I have cited applied, the plaintiff could have relied on section 13 because the only inference to be drawn was that he was employed by the first respondent at the registered office and place of business, his home, with the agreement of his co-director, his wife, and that he remained so employed until the first respondent ran out of work.
2. As I mentioned at [27] above, s 9AA was mentioned by Basten JA in Ballantyne v Workcover Authority of NSW. His Honour said: "64. Since 1 January 2006, the Act has contained provisions, which are noted below, which seek to define the relevant connection between employment and the State necessary to attract liability to pay compensation under the Workers Compensation Act. However, prior to that date, and thus relevantly for the purposes of the present proceedings, the principle of statutory construction as explained in Mynott v Barnard (1939) 62 CLR 68 applied. In that case, almost every possible connection bar the place of accident was with Victoria. Nevertheless, the Court unanimously applied the principle established in 1909 in Tomalin v S. Pearson & Son Ltd [1909] 2 KB 61, that the Act imposed liability upon the employer to pay compensation in respect of any injury suffered within the jurisdiction or "law area" of the statute in question. In Mynott even the fact that the worker died in Victoria did not engage the operation of the Victorian Act, the accident having occurred in New South Wales. As explained by Latham CJ at pp 73-74: "As Fetcher Moulton LJ said in Tomalin v S. Pearson & Son Ltd , speaking of the corresponding provision in the English Act, 'it clearly cannot apply universally all over the world'. It would be unreasonable to read the section as applying to all employers, all workers and all accidents everywhere. Some territorial limitation must be introduced in a construction of the section. The court has been offered an embarrassing choice of possible limitations. Each of the following elements (or some combination of them) has been suggested as possibly relevant - the Victorian domicile or residence of one or both parties: the fact that the contract of employment was made in Victoria: the fact that the work under the contract was to be done in Victoria, in whole or in part: the fact that the accident happened in Victoria: the fact that the governing law of the contract of employment was the law of Victoria: and, on the basis of a number of American decisions, the fact that the 'status' of the parties as employer and worker arose under Victorian law, or that the relationship of employment in a particular case has a real and substantial connection with Victoria, or a more real and substantial connection with Victoria than with any other country, or the fact of the localisation in Victoria of the employer's enterprise." 65. Each of these possible factors, other than the place where the accident occurred, was dismissed as inappropriate or irrelevant, whether alone or in combination with others. From that time, until 1 January 2006, the workers compensation legislation in this State made no express provision which was inconsistent with that principle. Accordingly, the basic premise upon which the Workers Compensation Act operated (until 1 January 2006) was that it might apply to any person employing a worker who might undertake work in New South Wales or who might, in the course of his or her employment, including no doubt the journey to and from the workplace, pass through New South Wales or part thereof, in the event of an accident there." At [68] his Honour quoted the section and then said: "69. These provisions may, however, be put aside for present purposes. It was common ground that the relevant date at which to determine the operation of the Workers Compensation Act was the date of Mr Crofton's injury, which may conveniently be identified for present purposes as 6 February 2000. (Nothing turns on the prior injury in December 1999.)" His Honour's comments tell us how the Act operated when the lex loci injuriae was the generally applicable principle, subject to provisions such as ss 13 and 21.
3. I have considered a number of decisions of the present Workers Compensation Commission ('WCC'): Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83 (Roche DP) Merrick v Aaron John Shelly and Geoffrey David Swan trading as Nationwide Transport Solutions & Anor [2010] NSWWCCPD 106 (O'Grady DP) Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27 (Keating P) Workers Compensation Nominal Insurer v O'Donohue [2014] NSWWCCPD 1 (Roche AP) Jakmax Pty Ltd v Taylor [2017] NSWWCCPD 24 (Keating P) The interpretation of the section has generally been led by Roche DP who is well known to me as an able and careful lawyer.
4. In Martin, Roche DP quoted the section at [29] and then said: "30. It is accepted that the relevant terms of section 9AA(3) provide cascading tests for determining the State with which a worker's employment is connected. First, a worker's employment is connected with the State "in which the worker usually works in that employment" (the "usually works" test). If that test provides an answer to the question, there is no need to proceed further. If not, one applies the test in section 9AA(3)(b) and looks for the State "in which the worker is usually based for the purposes of that employment" (the "usually based" test). If that test provides the answer, there is no need to proceed further. If not, one applies the test in section 9AA(3)(c) and looks for the State "in which the employer's principal place of business in Australia is located" (the "principal place of business" test). 31. In determining whether a worker usually works in a State under section 9AA(3)(a), regard must be had to the worker's "work history" with the employer and the intention 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 six months (section 9AA(6)). 32. If no State is identified by any of the three tests in section 9AA(3), a worker's employment is connected with New South Wales if he or she is in New South Wales when the injury happens and there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same injury (the "location" test) (section 9AA(5))." At [39] he commenced to discuss the purpose of the legislation: "39. The Workers Compensation Legislation Amendment Act 2002 introduced section 9AA into the 1987 Act. It applies to all applications from 1 January 2006. The Parliamentary Secretary, the Hon Ian MacDonald, stated in the second reading speech in the New South Wales Legislative Council on 4 December 2002, that the purpose of the amendment was to "eliminate the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction". The principles were intended to ensure that workers: "working temporarily in another jurisdiction will only have access to the workers compensation entitlements - and common law benefits - available in their home State or 'State of Connection' and to provide certainty for workers about their workers compensation entitlements and ensure that each worker is connected to one jurisdiction or another". 40. This would remove the need for employers to have two workers compensation policies for "employees working temporarily for up to six months" in another State. 41. With this intention in mind, other States and the Territories introduced similar legislation to section 9AA, as follows: Accident Compensation Act 1985 (Vic) - section 80; Workers Compensation and Rehabilitation Act 2003 (Qld) - sections 113 and 114; Work Health Act 1986 (NT) - section 53AA; Workers Compensation and Injury Management Act 1981 (WA) - section 20, and Workers Compensation Act 1951 (ACT) - sections 36A and 36B. 42. Whilst these provisions were intended to remedy the same problem, each is in slightly different terms. Nevertheless, it is appropriate to consider decisions from the other jurisdictions for guidance on the interpretation of section 9AA."
5. Mr Roche then discussed some interstate authorities: Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 (Gray J) Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 (Herron C) Avon Products Pty Ltd v Falls [2009] ACTSC 141 (Higgins CJ) From the text of the section and holdings distilled from these authorities, Roche DP deduced a number of principles which he set out at [60]. However, the decision of Higgins CJ in Falls was subsequently reversed: Avon Products Pty Ltd v Falls [2010] ACTCA 21 (Gray P, Penfold and Marshall JJ). That led Roche AP (as he then was) to modify those principles in O'Donohue thus: "53. I considered the general operation of s 9AA in Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 (Martin). After reviewing the authorities, I concluded (at [60]) that the following principles are applicable in determining cases under that provision: "(a) regard should always be had to the terms of the contract of employment; (b) 'usually works' means the place where the worker habitually or customarily works, or where he or she works in a regular manner (Hanns at [26]) [Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5]. It does not mean the place where the worker works for the majority of time (Knight at [76]) and is not simply a mathematical exercise (Falls at [43]) [Avon Products Pty Ltd v Falls [2009] ACTSC 141], though the time worked in a particular location will naturally be relevant. It will also be relevant to look at where the worker is contracted to work (Falls). Regard must be had to the worker's work history with the employer and the parties' intentions, but "temporary arrangements" for not longer than six months within a longer or indefinite period of employment are to be ignored. Whether an arrangement is a "temporary arrangement" will depend on the parties' intentions, which will be ascertained by looking at the worker's work history and the terms of the contract. A short-term contract of less than six months that is not part of a longer or indefinite period of employment will not usually be a "temporary arrangement" (Knight); (c) 'usually based' can include a camp site or accommodation provided by an employer (Knight at [83]). Where a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so. In considering where a worker is 'usually based', regard may be had to the following factors, though no one factor will be decisive: the work location in the contract of employment, the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment, the location where the worker reports in relation to the work, the location from where the worker's wages are paid, and (d) an employer's 'principal place of business' is the most important or main place where it conducts the main part or majority of its business (Knight at [66]). It will not necessarily be the same as its principal place of business registered with ASIC." 54. To the above summary must be added the following qualification. After deciding Martin, the Supreme Court of the ACT, Court of Appeal, overturned the decision in Falls (see Avon Products Pty Ltd v Falls [2010] ACTCA 21 (Falls CA). In the joint judgment in Falls CA, Gray P, Penfold and Marshall JJ held at [29]: "There is no gloss placed on s 36B(3)(a) which compels a court only to consider where a worker is 'required' to work." 55. The Court went on to conclude, at [30]: "We have no doubt that Ms Falls was required to do the work that she happened to do in NSW, but that she was not required to do it in NSW. We also have no doubt that a requirement or the absence of a requirement as to where work is performed is not relevant; the test is where the work is done, rather than where it is required to be done or whether it is required to be done anywhere in particular." 56. It follows, as Keating DCJ observed in Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27, that the extracted principle from the first instance decision in Falls, namely, that it would be relevant to look at where the worker is contracted to do the work, will not always be a determinative consideration. The test is where the work is done (Falls CA). However, care must be exercised when, because of the injury, the work under the contract has not been completed. In that situation, it may still be necessary to look at where the worker was contracted to work."

"Employment"

1. The word "employment" is used throughout the section. However, it is used in many other sections of the 1987 Act. In Stewart v NSW Police Service (1998) 17 NSWCCR 202 I discussed the meaning of employment as it was used in the then current version of s 11A: "67. What does the word "employment" mean in s 11A(1)(a). It, in my view, means the same as it does in s 4, which defines injury as meaning "Personal injury arising out of or in the course of the employment". Employment used in this context does not mean the mere fact of being employed. It means the work which the worker is required to do. In Thom v Sinclair [1917] AC 127, Lord Shaw of Dumferline said that "employment" included all its elements, "its nature, its conditions, its obligation and its incidents". Most people are familiar with the term "nature and conditions of his employment". Many people think it is a term of art in this jurisdiction. It is not. I have had cause to refer to that fact in earlier judgments but practitioners continue to overlook such things. In particular, I refer to the decision of Mirkovic v Davids Holdings Ltd (1995) 11 NSWCCR 656 at 667. Those who constantly use the words perhaps should cite all the words of Lord Shaw of Dumferline and rely on the nature and conditions, obligations and incidents of the employment. According to Lord Dunedin in Charles R Davidson & Co v McRobb [1918] AC 304 at 321, the term of employment naturally extends to matters "naturally incidental" to the contract of employment. According to Kitto J in Federal Broom Co Pty Ptd v Semlitch (1964) 110 CLR 626 at 632, it refers to "some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed". Again, in the same case, Windeyer J said at 641 that includes "some characteristic of the work of the conditions in which it was performed". It must also include that which a worker was reasonably required, expected or authorised to carry out his work. See the famous judgment of Dixon J in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126. Looking at those criteria for establishing what is employment, it can be seen that the applicant, dealing with her workmates about work matters, falls within the definition of "employment". Interpersonal conflict or animus at work between colleagues is not within "employment" so considered." Section 4 ("Definition of 'injury'") still uses the word "employment". It also appears in s 9A ("No compensation payable unless employment substantial contributing factor"); in s 10 ("Journey claims") and is still in section 11A. It is also found in many other provisions, too legion to list. Unless the context otherwise requires, it ought be given the meaning that has been authoritatively given to it in section 4. In short, it means the actual work which the worker is required, expected or authorised to do. It does not mean the status of being employed.
2. In Martin, on one view of the unsatisfactory evidence, there may have been a series of casual contracts of service. At [65] Roche DP said: "Section 9AA(1) provides that compensation under the 1987 Act is only payable "in respect of employment that is connected with this State". Though "employment" is not defined in either the 1987 Act or the 1998 Act, given the definitions of "worker" and "injury", it can only be a reference to employment under a contract of service or a relationship under a contract of the kind contemplated by Schedule 1 in the 1998 Act. Without such a contract, a claimant has no entitlement to compensation because he or she will not be a "worker" or a deemed worker under the legislation." I agree. The "employment" in questions can only refer to the employment under the contract of service that the worker had with the employer at the time of the injury relied upon. A later provision in the section make this, in my view, quite clear.

The tests under s 9AA

1. I accept that the section provides a series of tests in order to determine to which State or Territory of the Commonwealth the worker's employment is connected. However, I would refrain from using the gerundive "cascading". That is because if a worker satisfies the first test it is no longer necessary to go (or flow) further.
2. The tests can conveniently be described as: 1. "the usually works" test: ss (3)(a) and (6); 2. "the usually based" test: ss (3)(b); 3. "the employer's principal place of business" test: ss (3)(c); 4. NSW is the locus injuriae and there is no relief available under the law of another country: ss (5).

Subsection (6)

1. The words "the worker's work history with the employer" do not mean the same as "the history of the worker's employment with the employer". I have earlier in these reasons set out the plaintiff's "work history" although that was with a number of different employers. A work history might contain only one contract of service with an employer, but it could also contain a number of contracts of service/periods of employment. The latter was the factual matrix in Martin and O'Donoghue. "It is a rule of construction that, where in the same Act of Parliament and in relation to the same subject-matter, different words are used, the court must see whether the legislature has not made the alteration intentionally, and with some definite purpose: Lord Esher, Guardian of Parish of Brighton v Guardians of Strand Union [1891] 2 QB 157 at 167": Beal, Cardinal Rules of Legal Interpretation, 3rd Edition, 1924 at 360. In workers compensation law, the use of the plural rather than the singular can be significant: Monier Ltd t/as Reliance Roof Tiles v Szabo (1992) 28 NSWLR 53; (1992) 8 NSWCCR 305. That case concerned s 6(3A) of the 1926 Act, which became Schedule 1, clause 2(1) of the 1987 Act. Its amended form is now Workplace Injury Management and Workers Compensation Act 1998 Schedule 1, clause 2(1). This provision is that I referred to in [36] above.
2. The requirement that "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" does not mean that any longer period for a temporary arrangement requires a finding that that State is the one to which the worker's employment is connected. For example, a worker who is employed for 20 years in NSW but is transferred to, say, Victoria to fill a vacancy caused by the unexpected death of another worker, and it takes 8 months to find a replacement for the deceased and for the new worker to be trained by the long-term worker, it would still be open to find that the long-term worker's employment was still connected with this State. Such a finding would not infringe principle (b) identified by Roche DP, quoted in [36] above.

Applying s 9AA

1. These proceedings were adjourned on 26 April 2017 inter alia because Mr Benson (for the plaintiff) wished to develop an argument that s9AA did not apply to "coalminers". However, no such submission was ever made. I proceed on the basis that the section does apply to those who work in or about a "mine" as defined by the 1987 Act. For the deemed date of injury, 7 December 2011, the plaintiff had only worked in NSW for the first defendant. The plaintiff therefore solely worked in NSW and satisfied the "usually works" test.
2. If I be wrong in concluding that the date of injury is 7 December 2011 and that it ought be 7 August 2012, then: 1. the plaintiff worked for the first defendant in NSW from 26 July 2007 to 7 December 2011 (52 months) and in Queensland from 12 December 2011 to 7 August 2012 (8 months); 2. this could be categorised as a "temporary arrangement": the plaintiff wanted to work close to home, in the Hunter Valley and, to do so, incorporated Wesley Contracting NSW Pty Ltd to employ him to work in NSW; when work was no longer available in NSW, work was taken in Queensland but the inference must be drawn that if work again became available in NSW, the plaintiff/first defendant would have taken it up. In my view, the plaintiff has satisfied the "usually works" test on that basis.
3. In the alternative, I turn to the "usually based" test. Despite the submission of the plaintiff to the contrary, when he was working in Queensland he was residing in a mining camp. The test is "usually based for the purpose of that employment" not "usually based" simpliciter. When he was not rostered on to work at the Oaky North Colliery, he could have taken his time off either locally or in coastal Queensland or in Brisbane or Newcastle or Sydney. However, it is also clear that when working in the Hunter Valley/Lake Macquarie collieries he was based at his home in suburban Newcastle. Therefore, there is the same mathematical outcome: 52 months based in NSW and 8 months based in Queensland. There is no evidence of any substance that points to other indicia identified by Roche DP as quoted in [36] above. Weighing the evidence, I believe this test also to be satisfied by the plaintiff, that NSW was the State in which he was usually based when working for the first defendant under his contract of service. In these circumstances, I see no point in considering the third and fourth tests, on the assumption that my actual finding be wrong.

Insurance

1. It is evident that the first defendant was incorporated to allow the plaintiff to work in the coal industry in NSW. During the time the plaintiff worked for the first defendant in NSW he worked only in the coal industry. It is apparent to me that the plaintiff (and therefore the first defendant) only ever intended to work in/trade in the coal industry. Mr King SC cross-examined the plaintiff about the possibility of his working for the first defendant other than in the coal industry. The plaintiff had difficulty in accepting the assumption which Mr King SC was asking him to make. It was my distinct impression that the idea of working outside the coal industry, after the incorporation of the first defendant, had never been considered by the plaintiff. When work was no longer available in the coal industry, the plaintiff stopped work. He effectively retired from the workforce. I have no hesitation in finding, firstly, that the first defendant was in fact during its entire existence an employer in the coal industry and, secondly, that it was solely the intention of the first defendant (through its directors, the plaintiff and his wife) to employ the plaintiff in the coal industry.
2. During argument at the hearing, Mr King SC made a number of concessions: 1. "There is an issues as to whether the first defendant, Mr Stuckey's company, is an employer in the coal industry, in which event if that finding of fact is made, … s 7 of the Act would put [CMI] on risk for him, there might be a question of double insurance, which would never trouble your Honour." (T40.15) 2. "… it is certainly not part of my case that if a finding of fact is made that [the first defendant] was an employer in the coal industry, and [CMI] comes on risk by force of the Act, Allianz ceases to be on risk, …" (T41.03)
3. Section 7A of the 1987 Act is this: "7A. Application of Act in respect of coal industry (1) The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act. (2) However, the following provisions of this Act do not apply to or in respect of the workers compensation company: (a) Division 6 of Part 4, (b) sections 156 and 156B, (c) Divisions 1A, 2-5, 6A and 7 of Part 7. (3) For avoidance of doubt: (a) an employee of an employer in the coal industry is not eligible to make a claim under Division 6 of Part 4, and (b) a person who is taken, under Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry. (4) The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company)."
4. This section was considered by my late colleague Bishop DCJ in Badior v Muswellbrook Crane Service Pty Ltd (2004) 2 DDCR 177. There is no dispute that CMI is the "workers compensation company" referred to in s 7A(1). See Badior at [27]. However, his Honour's view as to the meaning of "all employers in the coal industry" was not correct. The section was considered in Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [sic] [2008] NSWCA 348. The leading judgment was given by Allsop P, with whom Giles and Bell JJA agreed. His Honour thoroughly outlined the legislative and other history of the provision. At [34] his Honour commenced to discuss the meaning to be given to "all employers in the coal industry". His Honour went on to say this: "50. In my view, CMI is correct in its submissions that the phrase "employer in the coal industry" requires a substantive connection between the entity and the coal industry to satisfy the relationship required by the preposition "in", beyond merely being the employer of a person who works in and about a mine. 51. The above conclusion is not to accept the description of the relevant connection used by the primary judge when her Honour followed Bishop J's decision in Badior. There, at [54] Bishop J said that to be an employer in the coal industry the entity must have all or virtually all of its employees working in or about a coal mine pursuant to Schedule 6 Part 18 of the 1987 Act. I do not think that on any view this is an appropriate connection reflective of the word "in". CMI in submissions barely sought to support it. Rather, in its notice of contention CMI submitted that what was required was the satisfaction, from an assessment of the substantial character of the employer and its business, that it was "in" the coal industry. I agree with that approach. It accords with the notion of the employer, as an entity, being in the industry. It also accords with the authorities to which I have referred dealing with similar questions. 52. Ultimately, the question is to be resolved textually and whether or not an entity is an employer in the coal industry will be a question of fact undertaken by reference to an assessment of the company's character and business. Though not the subject of specific submission, the appeal was argued on the basis that though the primary judge did not undertake this particular factual enquiry, the answer to it in the circumstances was clear: that Central West was not an employer in the coal industry. The notice of contention asserted that the facts before her Honour led to this conclusion. If there is any dispute about this question, it will have to be remitted to the District Court to be decided." In the present matter, the first defendant's business was solely in the coal industry. Therefore, under s 7A(4) CMI "is taken to be the insurer under [the 1987 Act]" of the first defendant. As Mr Rickard (for the first defendant/Allianz) succinctly put it: "8. The "character and business" of Wesley Contracting was solely to provide the plaintiff to work as a coalminer in coal mines (T36.19-26). It had no other business activity (T36.39-45). 9. Wesley Contracting's sole raison d'être was to provide the plaintiff to work as a deputy in those collieries described at T32. That was the reason for its creation by the plaintiff (T44.18-20)."
5. Mr Rickard argued, in his written submissions, that CMI was the sole insurer of the first defendant: "11. CMI's monopoly position in the coal industry was identified in Central West Group Apprentices. Flowing from that, s 7A(4) makes it clear that in the case of an employer in the coal industry there is but one insurer ("the insurer") and that insurer is … CMI. Notwithstanding the existence of a policy issued by Allianz and the lack of a policy with CMI, the only indemnity that can be provided to an employer in the coal industry is that provided for by CMI pursuant to s 7A(4)." Whether the use of the definite article, rather than the indefinite article, was done deliberately by Parliament for that purpose is an interesting question. It is clear that Mr King's position is that dual insurance exists, but that is not a question for this Court to decide in the exercise of its compensation jurisdiction.

Jurisdiction

1. District Court Act 1973, s 142G provides: "In this Division [Div 8A of Pt 3]: compensation jurisdiction means the following jurisdiction conferred on the Court: (a) jurisdiction to examine, hear and determine all coal miner matters (within the meaning of the Workplace Injury Management and Workers Compensation Act 1998) except matters arising under Part 5 of the Workers Compensation Act 1987, …" Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act") s 105(4A) provides: "After the repeal of the Compensation Court Act 1984, the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act)." Section 4 of the 1998 Act contains this definition: "coal miner matter means any matter arising under the Workers Compensation Acts concerning a claim in respect of a worker employed in or about a mine." I regret to say that, in my view, a dispute between two insurers as to who was at risk at a particular time does not "concern a claim" brought by a worker "employed in or about a mine" against his employer. The Compensation Court of NSW had the jurisdiction I am now exercising but did not have the jurisdiction to decide insurance issues.
2. I expect one of the two insurers here involved to pay the plaintiff's award and costs without prejudice to its rights vis à vis the other, if they can not reach agreement on the current issue. Since, in my view, there is no longer any argument available to CMI that it was at risk, and given its expertise, I hope that CMI pays the plaintiff's award and costs on the basis I have indicated, which I expect that Allianz will respect.

Orders

1. I make an award for the plaintiff against the first defendant for $6,965.60 for 8.1% further loss of binaural hearing. Deemed date of injury 7 December 2011.
2. I make an award for the second defendant.
3. I order the first defendant to pay the plaintiff's costs of establishing his claim against it. Such costs do not include: 1. the drawing, filing and service of the First Amended Statement of Claim; 2. of the Second Amended Statement of Claim, except in so far as it nominated Allianz as an insurer of the first defendant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2018