District Court of WA|2008-05-30|Before: Mr J

TAMBORITHA CONSULTANTS PTY LTD -v- KNIGHT [2008] WADC 78 (30 May 2008)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : TAMBORITHA CONSULTANTS PTY LTD -v- KNIGHT [2008] WADC 78

Workers compensation - State of jurisdiction - Employment connected with this State - Words and phrases - "Regard must be had to" - "Usually works" - "Usually based" - "Employer's principal place of business" - Section 20 and s 23C Workers Compensation and Injury Management Act 1981

Determination pursuant to s 23C Workers Compensation and Injury Management Act 1981 that Western Australia is the State with which the defendant's employment is connected

1 Mr Marcus Knight, the defendant, is a director of PT Control Systems Mandiri (CSBN), a company apparently based and registered in Indonesia.

2 The defendant works as a remotely operated vehicle supervisor ("ROVS"). A ROVS has operational control of a remotely operated underwater vehicle which involves the use of a range of mechanical equipment.

4 The plaintiff carries on the business of sub-sea contractors which includes providing project management services and carrying out ROV operations and inspection, repair and maintenance works. The plaintiff has an office located at Level 5, 105 St George's Terrace in Perth. It also operates its business from a yard located in Henderson, Western Australia.

5 According to an ASIC company extract annexed to the affidavit of Mr Sheldrick sworn 15 April 2008 the plaintiff is and has been registered in Victoria since 19 January 1988. The company extract certifies that both the registered office and the principal place of business of the plaintiff is 67-71 Foster Street, Sale in Victoria.

6 There is an issue between the parties, which I am not required to resolve for the purpose of these proceedings, whether the defendant, or PT Control Systems Mandiri (CSBN), was contracted by the plaintiff to provide ROVS services in May 2006 and whether the defendant is a "worker" for the purposes of the Workers' Compensation and Injury Management Act 1981. However, what is not in issue is that the defendant was personally required to carry out the ROVS duties once an agreement had been entered into with the plaintiff. In that sense the defendant was working for the plaintiff.

7 On 19 May 2006 the defendant commenced working on and in connection with a ship "MV Far Gripp" located in Melbourne. The ship was to lay down anchors and chains and devices known as floating storage and production off-loading.

8 The defendant travelled from Perth to Melbourne on 19 May 2006. He boarded the ship at Melbourne on 21 May 2006 when it departed from Melbourne.

9 On 21 May 2006 while the ship was located in Port Phillip Bay off the coast of Victoria the respondent was injured when he suffered serious burns in a fire on board the ship.

10 On 20 August 2006 the defendant completed a written workers' compensation claim form making a claim for workers' compensation against the plaintiff as a result of the injuries suffered in the accident. By letter dated 13 February 2007 GCU, the workers' compensation insurer for the plaintiff, denied liability, on the basis, inter alia, the defendant's employment was not connected with Western Australia.

11 By a Pt XI application, No SD 631/07D, the defendant commenced proceedings in the Dispute Resolution Directorate of WorkCover seeking an order for commencement of weekly payments of compensation pursuant to s 58 of the Workers' Compensation and Injury Management Act 1981 ("the Act"). By order of the DRD dated 7 August 2007 the application was adjourned sine die to allow the plaintiff to commence proceedings in the District Court pursuant to s 23C of the Act.

12 By originating summons filed on 12 September 2007 the plaintiff seeks:

A determination pursuant to s 23C of the Act that, if the defendant was employed by the plaintiff under a contract of service or a contract for services as at 21 May 2006, that employment was not connected with the State of Western Australia within the meaning of s 20 of the Act, but rather was connected with the State of Victoria.

Section 20 of the Act

13 Section 20 reads as follows:

"20. Compensation not payable unless worker's employment connected with this State

'State', in a geographical sense, includes a State's relevant adjacent area as described in Schedule 6.

(2) Compensation under this Act is only payable in respect of employment that is connected with this State.

(3) The fact that a worker is outside this State when the injury occurs does not prevent compensation being payable under this Act in respect of employment that is connected with this State.

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

(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) In the case of a worker working on a ship, if no State or no one State is identified by subsection (4), a worker's employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.

(6) If no State is identified by subsection (4) or (if applicable) (5), a worker's employment is connected with this State if -

(a) a worker is in this State when the injury occurs; and

(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(7) In deciding whether a worker usually works in a State, regard must be had to -

(a) the worker's work history with the employer over the preceding period of 12 months; and

but 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) Subject to subsection (7), in deciding 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.

(9) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker's employment."

14 "Ship" is defined in s 5 as:

"ship" means any kind of vessel used in navigation by water, however propelled or moved, and includes -

(a) a barge, lighter, or other floating vessel; and

(b) an air-cushion vehicle, or other similar craft,

used wholly or primarily in navigation by water."

15 Section 20(4) of the Act provides a sequential or cascading series of steps or tests for determining whether a worker's employment is connected with "this State". It is only necessary to consider each sequential step or test if the use of the earlier test does not result in a State or any one State being identified.

16 Section 20(7) sets out certain criteria to which "regard must be had" in deciding whether a worker "usually works" in a State for the purposes of s 20(4)(a).

17 If all of the steps taken, or all of the tests applied, in s 20(4) do not result in any State or any one State being identified, and if the worker was working on a ship, s 20(5) provides the worker's employment is connected with the State in which the ship is registered or, if registered in more than one State, the State in which the ship most recently became registered.

18 Finally, if following consideration of s 20(5) a State has still not been identified s 20(6) provides the worker's employment is connected with this State if the worker is in this State when the injury occurs and there is no place outside Australia under the legislation of which the worker may be entitled to compensation.

19 Section 20 and Div 1a of Pt III of the Act were introduced by the Workers' Compensation and Rehabilitation Amendment (Cross Border) Act 2004. The new provisions commenced operation on 22 December 2004.

20 The provisions were introduced as a part of a national scheme which, when introducing the amendment Bill in his second reading speech, Mr Kobelke, the Minister for Consumer and Employment Protection, explained:

"For many years there has been concern about the need for employers to take out workers' compensation insurance for individual workers in more than one State or Territory, even if the worker is working only temporarily in another jurisdiction. Over the past 10 years, attempts nationally have been made to resolve these cross-border issues. All States and Territories recognised the need for a legislative solution, but attempts to prepare a national legislative template were frustrated because the proposed solution became complicated and unworkable. However, the heads of workers compensation authorities reached an agreed position and a set of national principles was developed which will -

'eliminate the need for employers to obtain workers compensation coverage for a worker or deemed worker in more than one jurisdiction and to enable employers to determine the State or Territory in which to obtain that insurance;

ensure workers and deemed workers temporarily working in another State or Territory have access only to the workers compensation arrangements, including common law, available in their home jurisdiction;

provide certainty for workers about their workers compensation entitlements; and

ensure each worker is connected to one State or Territory.'

The principles also ensure workers working temporarily in another jurisdiction will have access only to the workers compensation entitlements and common law benefits available in their home State or, as referred to in the amendments, the 'State of connection'. The State of connection also designates the jurisdiction in which workers' compensation premiums relating to a particular worker are payable and determines the benefits to which an injured worker is entitled. As a result there is a certainty for workers about their workers compensation entitlements and each worker is connected to one jurisdiction. All jurisdictions agreed to pursue complementary legislation that establishes a single rule for work related accidents. New South Wales, Queensland, Victoria and the ACT have already introduced amendments while the other States and the Northern Territory aim to have legislation in place by 1 July 2004."

21 The similar legislation referred to in the other States and the Northern Territory is as follows:

22 Although the intention of the national scheme was to introduce uniform legislation for the purpose of determining with which State a worker's employment is connected the legislation separately enacted in each State and territory contain differences. The legislation in each State and Territory does not precisely correspond to each other such as legislation enacted as part of a uniform national framework to which the Council Of Australian Governments agree, from time to time, such as in the national legislative scheme considered by the Full Court in Re; Dr Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511. Whereas, like in Western Australia, Victoria, the ACT and the Northern Territory provide that in deciding whether a worker usually works in a State regard must be had to the worker's work history over the previous or preceding period of 12 months, the legislation in New South Wales and Queensland only refer to the need to have regard to the worker's work history with the employer. The period of the work history to which regard must be had is not limited to 12 months.

23 In "Australian Workers' Compensation Guide" (CCH) Vol 1, the commentator in relation to the Western Australian legislation at 49-800 observes that the requirement to have regard to a 12 month work history is to ensure that courts in different jurisdictions apply standard tests to avoid the situation where one court may decide by having regard to the whole period of the employment while another court may consider a more recent history. Given the differences in the wording of the legislation in the various States and Territories, in my respectful opinion the legislation does not apply a standard test by only requiring that regard must be had to the previous or preceding 12 months.

24 There is a further difference between the respective Acts highlighted by s 53AA of the Work Health Act (NT). Section 53AA(5) provides a test for determining whether a worker is usually based in a particular jurisdiction as follows:

"(5) In deciding whether a worker is usually based in a particular jurisdiction, regard may be had to the following matters:

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

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

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

25 By s 53AA(6) a further test is provided for determining the principal place of business of the employer as follows:

In deciding the principal place of business in Australia of the worker's employer, regard may be had to the following matters:

(a) the address registered on the Australian Business Register in connection with the employer's Australian Business Number ("ABN");

(b) if the employer is not registered for an ABN, the State or Territory indicated on the ASIC National Names Index as the principal place of business for the employer;

(c) if the employer is not registered for an ABN and is not listed on the National Names Index, the State or Territory indicated by the employer's business mailing address."

26 Neither of those provisions or tests are contained within the Western Australian Act or the Acts of the other States and the ACT.

27 By s 23C of the Act I am required to determine, in accordance with s 20, the question of which State is the State with which the defendant's employment is connected, specifically whether his employment is connected with Western Australia or Victoria.

28 It is not in issue between the parties that the provisions of the Seafarers Rehabilitation and Compensation Act 1992 do not apply to the defendant and therefore s 20(9) does not apply.

29 It is also accepted by the parties that the accident occurred on a "ship" as defined by s 5.

30 It is also not in issue that the location where the accident occurred in Port Phillip Bay is within an "adjacent area" of Victoria for the purposes of Sch 6 cl 2(1) and therefore occurred within the State of Victoria for the purposes of s 20(1) of the Act.

31 It must therefore follow that if it becomes necessary to consider s 20(6) the defendant's employment is not connected with Western Australia by virtue of that subsection because the defendant was not in Western Australia when the injury occurred.

32 In support of its application the plaintiff has filed affidavits of Mr Sheldrick sworn 12 September 2007 and 15 April 2008, (to which I have earlier referred), and Wayne Ham, the managing director of the plaintiff sworn 4 March 2008. The defendant has filed an affidavit sworn by him on 6 December 2007 in opposition to the application. There is no significant difference in the evidence. In a statement signed by Mr Ham and filed in the DRD proceedings, which is annexed to Mr Sheldrick's affidavit sworn on 12 September 2007, and which commences at p 81, Mr Ham explains the background to the working relationship between the parties which, unless otherwise stated, I accept.

33 The defendant commenced working for the plaintiff as a casual part-time employee during the financial year ending 30 June 2001. During 2001 the defendant requested that the plaintiff provide work to the defendant on a subcontract basis rather than a casual employment basis. That was agreed to by the plaintiff.

34 Thereafter the defendant worked for the plaintiff on a subcontract basis. Initially the contractual arrangements were with the defendant's company Telham Pty Ltd t/as Microtek and later through PT Control Systems Mandiri.

35 There was no written contract entered into between the parties when the defendant was casually employed by the plaintiff. Nor was any written documentation exchanged when the defendant commenced working for the plaintiff on the subcontract basis.

36 The plaintiff arranged all personnel who attended on the jobs for the plaintiff's customers. The plaintiff required the defendant to personally perform the ROVS duties. The defendant was not permitted to delegate or subcontract the work to others. If the defendant accepted an offer of work from the plaintiff it was on the basis of fitting in with the timetable arrangements directed by the plaintiff.

37 The plaintiff contracted with various large companies both within Australia and overseas. The defendant was required to work at the times, places and for the durations directed by the plaintiff.

38 The plaintiff rang the defendant and offered the work on a job-by-job basis. If the defendant accepted an offer which involved having to work interstate or overseas the plaintiff reimbursed the defendant or his business the taxi fare from his home in Willetton to Perth Airport.

39 The plaintiff regarded each subcontract as commencing on the day the defendant was required to be at the Perth Airport to depart to a job location.

40 The defendant also provided electrical and electronic services to the plaintiff, working either from the plaintiff's facilities or from his workshop at 2 Pirie Street in Willetton. Although it is not clear I understand the reference to the plaintiff's facilities is a reference to the yard at Henderson and the Perth office.

41 The defendant did not work exclusively for the plaintiff. (In the defendant's affidavit he says at pars 12 and 13 he also worked for Stolt Offshore in 2001 - 2002 but did not work for anyone else.)

42 In the 12 months prior to May 2006 the defendant had worked on two ships, the MV Far Gripp and the MV Sentinel in the Bass Strait off the coast of Victoria. The defendant's work history with the plaintiff for the preceding period of 12 months prior to the accident on 21 May 2006 is annexed to the affidavit of the defendant and also to Mr Sheldrick's initial affidavit and is reproduced as follows:

43 The defendant did not work for the plaintiff between May and August 2005.

44 Mr Ham by email dated 26 September 2007, annexed to the affidavit of the defendant, advised he had prepared a summary of where the defendant had worked for the plaintiff over the previous six years as follows:

339 days in WA (74.5 per cent of total time);
95 days in Victoria (20.9 per cent of total time);
21 days outside of Australia (4.6 per cent of the time).

45 According to Mr Ham's statement, after the defendant left Perth and travelled to Melbourne he arrived at the ship in the afternoon of 19 May 2006 but did not join the vessel until 21 May 2006. The defendant stayed in a motel in South Melbourne for two nights while he was mobilising and testing equipment prior to departure. That evidence is not disputed by the defendant and I therefore accept that prior to boarding and departing on the MV Farr Grip on 21 May 2006 the defendant worked for two days for the plaintiff in Melbourne preparing for the job aboard the MV Far Gripp. During those two days he stayed in a hotel in South Melbourne.

46 Both parties agree that at the time of the accident the defendant was being paid a daily rate of $925. However, it seems from an examination of the invoices annexed to Mr Ham's statement that the defendant was also paid a rate of $725 per day for stand-by. The invoice dated 1 September 2005 (WH(1b)) records the defendant was paid mobilisation for 15 hours at $50 per hour, stand-by for seven days at $725 per day and operational for 10 days at $925 per day. The following invoice dated 15 October 2005 (WH(1c)) also records that the defendant was paid a different stand-by and operational rate, as does the invoice dated 30 October 2005 (WH(1d)). There is otherwise no evidence which explains what is stand-by and the reason for the different rates.

47 In his statement Mr Ham says the defendant was required to work a 12 hour shift as a ROVS. When the defendant worked for the plaintiff Mr Ham kept in regular contact with him by telephone. In his statement filed in the DRD proceedings the defendant says that when he was on-site he was on call 24 hours a day. It seems from the invoices that on some days the defendant was regarded as being on stand-by and on other days as operational when he was paid the higher rate.

48 Without the benefit of any evidence or explanation from the parties clarifying the position it seems to me that while on board a ship there were days when the defendant was not actually performing the duties of the ROVS but was on call or on stand-by in the event it became necessary for him to work and on those days he was paid the lower rate.

49 The reference to mobilisation in the invoice dated 1 September 2005 suggests the defendant undertook work preparing for his work aboard the MV Far Gripp. Although the invoice dated 22 August 2006 (WH(1f)) which covers the contract for the period 19 May to 21 May 2006 during which the defendant was injured does not contain an item for mobilisation and notwithstanding there is a claim for three days at $925 per day at the operational rate the parties seem to accept that for two days on 19 and 20 May 2006 the defendant's work over those days involved him in mobilising for the trip aboard the ship.

50 The electrical contracting service work performed by the defendant was charged at, according to the invoice dated 22 August 2006 an hourly rate of $85. There is no suggestion that that work is connected to the work undertaken by the defendant on board the MV Far Gripp. That invoice was reissued on 22 August 2006 (WH4). It evidences the defendant between 23 March 2006 and 17 March 2006 worked a total of 165 hours at the plaintiff's Henderson yard and its Perth office.

51 In the construction of statutes a court is required to consider the context, object and purpose of the legislation. The meaning of a provision must be determined by reference to the language of the statute viewed as a whole. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] - [71] McHugh, Gummow, Kirby and Hayne JJ said:

"[69] "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed .

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision . In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent' ."

"[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

53 In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11] McHugh A-CJ, Gummow and Hayne JJ said:

"[11] In Newcastle City Council v GIO General Ltd, McHugh J observed:

'[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.'

His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd. There, Brennan CJ, Dawson, Toohey and Gummow JJ said:

'It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.' "

54 Also, by s 18 of the Interpretation Act 1984 a construction that would promote the purpose or object underlying the legislation should be preferred to a construction that would not promote that purpose or object.

"Regard must be had" - Section 20(7)

55 The expression "have regard to" was considered by the High Court in an administrative law context in R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 25 ALR 497. At 504 Mason J, (with whom Gibbs J agreed), said the expression "have regard to" required the decision maker to take certain matters into account and to give weight to them as a fundamental element in making his determination. At 508 Murphy J also observed that the expression meant the decision maker must take the matters into account and to consider them and give due weight to them, but he has an ultimate discretion. See also The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 per Gibbs CJ at 333 where he observed the expression "have regard to" requires the decision maker to take certain matters into account and to give weight to them as a fundamental element in making his recommendation.

56 In considering the expression "must have regard to" in s 124(2) of the Child Support (Assessment) Act 1989 (Cth), Mushin J In Marriage of Bendeich (1992) 16 Fam LR 371 at 377 - 378 interpreted the word "must" as being mandatory and the expression "have regard to", applying R v Hunt, as requiring him to take the relevant factors into account and give them weight but the decision maker had the ultimate discretion and may also consider and have regard to other factors to those that by s 124(2) he was required to have regard to. Mushin J also referred to R v CD [1976] 1 NZLR 436 at 436 - 437 where in the interpretation of the entitlement to costs pursuant to the Costs in Criminal Cases Act 1967 (NZ) Somers J held that the expression "shall have regard to" was not synonymous with "shall take into account" and that the legislative intent was that the court had a complete discretion but that the various matters are to be considered as appropriate and may be rejected or given such weight as the court in its discretion determines.

57 In Perry v Wright [1908] 1 KB 441 at 458, Fletcher Moulton LJ at 458 said, when considering a provision of the Workmen's Compensation Act 1906 (UK), that the expression "regard may be had to" in a provision by which the rate of earnings and workers' compensation was to be calculated, was providing the court with help to determine the rate of compensation. The words were to be regarded as "a guide", and not "a fetter".

58 The expression "must take into account" was considered in Re; Dr Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd (supra) at [50] - [56] per Parker J, with whom Malcolm CJ and Anderson J agreed. Parker J referred to R v Hunt; Ex parte Sean Investments Pty Ltd and R v Toohey; Ex parte Meneling Station Pty Ltd. He observed the need to consider the expression in its context within the legislation and the scope and purpose of the particular statutory scheme. At [55] he said:

"[55] It is clear that an expression such as 'have regard to' is capable of conveying different meanings depending on its statutory context. In s2.24 the phrase "must take the following into account" is apt to convey as an ordinary matter of language that the Regulator must not fail to take into account each of the six matters stipulated in (a) to (f), and by (g) any other matter the Regulator considers relevant. If anything, 'take into account' appears, as a matter of language, little different from 'have regard to'. Indeed, in R v Hunt the expression 'have regard to' was understood as requiring that the specified matters be taken into account. The matters specified in (a) to (f) appear, by their nature, to be highly material to the task of assessing a proposed Access Arrangement, given the legislative purpose and objects of the Act and the Code in this regard. It is difficult to conceive that it could have been intended that the Regulator might decide to give no weight at all to one or more of the factors stipulated in s2.24(a) to s2.24(f). In my view, in the context of the Act and the Code, the Regulator is required by s2.24 to take the stipulated factors into account and to give them weight as fundamental elements in assessing a proposed Access Arrangement with a view to reaching a decision whether or not to approve it."

59 I accept that in the construction of the expression "regard must be had to" for the purposes of s 20(7) I must adopt a cautious approach in considering similar expressions used in different legislation given those expressions might be used in a different context. In my view the authorities to which I have referred provide considerable assistance in the construction of s 20(7).

60 In my view in the context of the Act, and given the purpose and object of s 20 as explained by the Minister in his second reading speech, is to provide certainty to both employers and workers as to which State's workers' compensation laws apply to their employment relationship, and to eliminate the need for employers to obtain workers' compensation coverage in more than one jurisdiction where a worker might be working temporarily in another jurisdiction, I am required when deciding where a worker "usually works" pursuant to s 20(7) to take into account the worker's work history over the preceding 12 months and to give it such weight as in the exercise of my discretion I determine but I may also consider and have regard to a greater work history or a work history which extends beyond the 12 month period. I have the ultimate discretion as to what work history I should consider beyond the 12 month period.

61 In my view the expression "regard must be had to" in s 20(7) does not limit the court's discretion by only requiring it to have regard to the work history over the preceding period of 12 months. In my view the meaning of s 20(7)is that regard must be had to at least the preceding 12 month period and not to "only" the 12 month period. If Parliament had by s 20(7) intended that regard be had to only the 12 month period it would have made that clear by using wording such as "regard must only be had to ...".

62 I am strengthened in this view when I consider the concluding words by which 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. If, in a 12 month period, there was a temporary arrangement by which a worker worked in a State for a period of six months that would only leave the remaining six months to be considered or regarded in determining whether a worker usually worked in a State. It seems to me that if only a six month period is considered it does not provide any useful test or measure in determining where a worker usually works and I therefore do not consider that such a result could have been intended by Parliament. Therefore in my view s 20(7) requires the court to have regard to at least the work history over the preceding 12 months, but a court is not prevented from considering a greater work history if in the exercise of its discretion it considers it appropriate to do so.

63 By s 20(7)(b) regard must also be had to the intentions of the worker and the employer. In my view it will often be the case that the intentions of the worker and the employer cannot be properly considered if only a 12 month work history is taken into account. There will be occasions in which it is appropriate in seeking to determine what are the intentions of the worker and the employer to have regard to a work history beyond a 12 month period. However, the intentions of the worker and the employer cannot be properly considered unless at least regard is had to a 12 month work history.

64 The expression "employer's principal place of business" is not defined. The plaintiff's counsel submits the principal place of business for the purposes of s 20(4)(c) is the same as the principal place of business according to the ASIC company extract which is in Victoria. By that I understand the submission to mean that the expression in s 20(4)(c) has the same meaning as it has for the purposes of the Corporations Act 2001 (Cth). By s 117(2)(j) of the Corporations Act to register a company a person must lodge an application stating the address of the company's proposed principal place of business. The Corporations Act does not define "principal place of business".

65 In my view the expression "principal place of business" in s 20(4)(c) is not the same as the principal place of business registered with ASIC under the Corporations Act. First, an employer may not be a corporation. Therefore to give meaning to the expression principal place of business of such an employer recourse cannot be had to the registration of a principal place of business under the Corporations Act. Secondly, if it was intended by Parliament that the expression means the principal place of business registered with ASIC it would have been a simple matter to make that clear by inserting a provision similar to s 53AA(6) of the Work Health Act (NT).

66 The Shorter Oxford English Dictionary defines "principal" as "first, chief, original, first or highest in rank, most important, foremost, greatest". Principal also commonly means "main". In my view the expression "principal place of business" in s 20(4)(c) means the chief, most important or main place of business from where the employer conducts most or the chief part of its business. If the employer is a large national employer conducting business in various States there might not be a principal place of business of the employer for the purposes of s 20(4)(c) as the main, or the most important, or the chief part of the employer's business is conducted from various places. It cannot have been intended by Parliament that in those circumstances the expression "principal place of business" for the purposes of s 20(4) simply means an entry on a registration form made by an employer and used by ASIC for administrative purposes.

Whether the defendant's employment is connected with the State of Western Australia or the State of Victoria

67 By s 20(3) of the Act the fact that the defendant was in Victoria when the injuries occurred does not prevent compensation being paid under the Act providing his employment is connected with Western Australia.

68 As I have previously observed, s 20(4) provides a sequential series of steps or tests to be taken in determining with which State a worker's employment is connected. The first step pursuant to s 20(4)(a) is whether the employment is connected with the State in which the worker "usually works" in that employment; but 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.

69 As I have earlier remarked when considering the meaning of the expression "regard must be had to" an issue arises as to whether s 20(7) only permits regard to be had to the work history for the preceding 12 months or whether it permits recourse to an earlier or greater period of the work history. It is submitted by counsel on behalf of the plaintiff that regard must only be had to the preceding period of 12 months and not to any greater period. If regard is only had to the 12 month period by reference to the work history set out above at [42] the defendant worked for 40 days in Western Australia and 71 days in Victoria, that is, he worked for 64 per cent of his time in Victoria and 36 per cent of the time in Western Australia. Therefore, it is submitted, the application of the "usually based" tests results in the identification of Victoria as the State of connection.

70 On the other hand counsel for the defendant submits s 20(7) does not limit regard being had to a work history beyond the immediately preceding 12 month period. If regard is had to the whole period for which the defendant worked for the plaintiff then on a percentage assessment of the total time worked by the defendant of 74.5 per cent the "usually based" test results in the identification of Western Australia as the State of connection rather than Victoria.

71 I have previously determined that although I am required to consider and take into account the 12 month work history and to give it such weight as I determine I am not limited by that period in considering in which State the defendant usually worked and can have regard to a greater work history, particularly in considering what were the intentions of the plaintiff and the defendant.

72 It is difficult to determine what were the intentions of the defendant and the plaintiff for the purposes of s 20(7) mainly because it seems to me the arrangements between them do not comfortably fit within or are contemplated by s 20(7). The defendant worked on a job by job basis. He was, if he accepted an offer of work, required to work wherever the work was required to be undertaken. That might be within Western Australia, it might be in Victoria or it might be overseas. The defendant worked in various locations as required. The intention of the parties was that the defendant would work wherever the work was required to be performed. He could either choose to accept or decline an offer of work. There was never an intention on the part of the parties that the defendant usually work in any one State or any one location. Where over a period of time the defendant came to usually work depended upon whether the defendant chose to take up an offer of working in a particular place. If he had chosen only to accept offers of work within Western Australia he would by virtue of that fact have usually worked in Western Australia but that does not seem to me to be relevant to any intention on the part of the parties as to where the defendant was to work. The decision, or otherwise, of the defendant to accept an offer of work determined where he usually worked irrespective or independently of any intention of the parties. Had he chosen, say in August 2005, not to accept the offer of work he would have worked 17 less days in Victoria and would in that 12 month period have worked only 57 per cent of his time in Victoria. In my opinion the arbitrary decision of the defendant whether to accept or reject an offer of work cannot determine where for the purposes of s 20(7) the defendant "usually works". There was no intention on the part of the parties that the defendant usually work in any one particular State or location.

73 Further, the nature of the arrangement between the parties was that each period of work constituted a separate contract. There was no continuing period of employment as seems to be contemplated by s 20(7). Therefore there was no "temporary arrangement" for the purposes of s 20(7). Each period of work constituted a separate period of employment. When the plaintiff worked on board a ship in Victoria it was not a temporary arrangement. The arrangement was permanent in the sense the defendant was required to work on the ship for the duration of the period of work. There was no intention on the part of the parties that once the period of work had been completed on a ship in Victoria the defendant would return to Western Australia and continue work or employment with the plaintiff.

74 Therefore in my view the nature of the arrangements between the parties are not comprehended by and do not fit within the provisions of s 20(7). The fact that for the 12 month period in 2005 and 2006 the defendant worked for more of his time in Victoria and, if the whole work history is considered, for more of his time in Western Australia do not in my view provide any useful guide or assistance in deciding what were the intentions of the parties and where the defendant usually worked for the purposes of s 20(7).

75 I therefore am unable to determine whether the defendant's employment was connected with either Western Australia or Victoria pursuant to s 20(4)(a) on the basis the defendant usually worked in his employment with the plaintiff in one State.

76 If I am wrong in my view that I am not fettered by only being able to consider a 12 month work history and I am only permitted to have regard to the defendant's work history with the plaintiff from August 2005 to May 2006, in my opinion the percentage assessment comparison of the time worked in Victoria and the time worked in Western Australia does not establish the defendant usually worked in Victoria simply because the majority of the time was worked by him in Victoria. If the test for determining with which State the worker's employment was connected was by reference to the State in which the worker worked for the majority of his time, s 20(4)(a) would have been expressed in those terms. The expression "usually works" is not synonymous with where the worker "works for the majority of the time ".

77 Further, if a worker worked 51 per cent of his time in one State and 49 per cent of his time in another State it does not in my view follow that the worker "usually works" in the State where he works for the majority of his time simply assessed on a percentage basis.

78 Therefore in my opinion no State is identified by the test in s 20(4)(a).

79 Having determined there is no one State in which the defendant "usually works" for the purposes of s 20(4)(a) I am required to determine whether by s 20(4)(b) there is a State in which the defendant is "usually based for the purposes of [his] employment".

80 The use of the expression "usually based" in subpar (b) suggests it has a different meaning to the expression "usually works" in subpar (a). The Shorter Oxford English Dictionary defines "usually" as "(a) in a usual or customary manner; (b) (esp. modifying a sentence) as a rule, generally speaking". "Usual" is defined as "(1) Commonly or customarily observed or practised; having a general currency, validity, or force; current, prevalent. (2) Ordinarily used; constantly or customarily employed; esp. in a specified capacity; ordinary".

81 "Base" is defined as a "town, camp, harbour, airfield, etc., from which (esp. military) operations are conducted and where stores and supporting facilities are concentrated; a centre of operations, a headquarters".

82 Where the worker is "usually based" must be for the purposes of that employment.

83 It seems to me the expression "usually based for the purposes of that employment" includes a camp site or accommodation provided by an employer such as in the mining industry. Where the worker is usually based and where he or she usually works might also coincide such as workers working on oil or gas rigs or, indeed as is the case with the defendant, a ship on which he both worked and lived. The type of matters contemplated by the expression also include, in my opinion, the same matters as those set out in s 53AA of the Work Health Act (NT) being:

the work location specified in a contract of employment;
the location the worker routinely attends to receive directions or collect materials or equipment in relation to the works;
the location the worker reports to in relation to the work;
the location from which the worker's wages are paid.

84 The plaintiff submits that the percentage of time the defendant was based in Victoria was, for the same reason that he usually worked in Victoria, 64 per cent of the time. When he usually worked in Victoria he was usually based in Victoria. Therefore, according to the plaintiff's submission, the "usually based" test also results in identification of Victoria as the State of connection.

85 For the reasons I have explained when considering s 29(4)(a) I do not consider this percentage analysis is useful in the application of the relevant test in deciding what is the State of connection.

86 According to the work history set out at [42] above the plaintiff commences work in Western Australia and concludes work in Western Australia when he travels to locations outside Western Australia. According to the defendant's affidavit he receives instructions from Mr Ham advising him on the location for his work by telephone or email. The details of the tasks the defendant is required to undertake are provided once he is on the project or job. Therefore there seems to be no particular location the defendant routinely attends to receive directions or collect materials or equipment in relation to the work such as is referred to in s 53AA(5) of the Work Health Act (NT). The location specified in the defendant's contract of employment and the location to which he reports in relation to his work varies from job to job. There is no one location.

87 There is scant evidence as to the location from which the defendant's wages are paid and to which the defendant's invoices are sent. Although Mr Ham's statement annexes and refers to a number of invoices and confirms they were sent to the plaintiff it is not clear whether those invoices are sent to and are paid from the plaintiff's office in Perth, or in Sale, Victoria. However, I infer from par 27 of Mr Ham's statement, and that he gives his address as c/- Level 5, 105 St George's Terrace, Perth that the invoices are sent to and received by the plaintiff at its Perth office. I also infer from Mr Ham's statement and his affidavit that he is located in and runs the plaintiff's business from the Perth office. I also observe that from the ASIC company extract of the plaintiff annexed to Mr Sheldrick's affidavit sworn 15 April 2008 Mr Ham is the sole director and secretary of the plaintiff and resides in Bull Creek in Western Australia.

88 When the defendant performs electrical contracting work for the plaintiff he is located at the plaintiff's premises in Perth or at its Henderson yard for the purposes of that employment. When he undertakes the duties of a ROVS he is located on a ship for the purposes of that employment, the location of the ship depending on where the work is being performed. Although the defendant is normally based in Western Australia before and after working on a ship he is not based in Western Australia for the purposes of the employment. He is based in Western Australia because that is where he resides.

89 However, and notwithstanding this, I regard the fact that each new job or contract for work commences and concludes in Western Australia, and that each contract for work is entered in Western Australia, is relevant in considering where the defendant is usually based for the purposes of that employment. Those facts combined with the fact that the defendant is paid from the plaintiff's premises in Western Australia, that Mr Ham keeps in contact with the defendant by telephone from Western Australia, with the further fact that when he is not working on a ship he performs electrical contracting work for the plaintiff at its premises in Western Australia, persuades me the defendant is "usually based" in Western Australia for the purposes of his employment with the plaintiff.

90 I therefore find that pursuant to s 20(4)(b) the defendant's employment is connected with Western Australia.

Section 20(4)(c) - "Employer's principal place of business"

91 As I have already found that the defendant's employment is connected with Western Australia it is unnecessary for me to consider whether by application of the test or step pursuant to s 20(4)(c) a State is identified by reference to where the employer's principal place of business is located. However, because the issue was the subject of submissions by the parties and because I have already considered the meaning of the expression "the employer's principal place of business" for the purposes of s 20(4)(c) I propose to briefly consider the matter.

the plaintiff carries on business from premises in St George's Terrace, Perth and from a yard at Henderson, (the extent of which is unclear given the scant evidence about the plaintiff's activities in Western Australia but which appears to be significant);
the absence of any evidence as to the extent to which the plaintiff carries on business in Sale, Victoria and if so, how that compares to the extent and nature of the business carried on in Western Australia;
Mr Ham, the sole director and secretary of the plaintiff, operates the business from Western Australia and lives in Western Australia;
each contract for work is entered into in Western Australia.
each contract for work, or of employment, commences and concludes in Western Australia;
the defendant has undertaken a significant amount of electrical contracting work for the plaintiff at its premises in Western Australia;
the defendant's wages are paid by the plaintiff from its premises in Western Australia;
Mr Ham keeps in contact with the defendant from Western Australia;

compels me to the conclusion that the main, or the most important, or the chief part of the plaintiff's business is conducted from Western Australia.

93 Therefore had it been necessary I would have found that the plaintiff's principal place of business in Australia is located in Western Australia from which it follows the defendant's employment is connected with Western Australia.

94 Surprisingly, given the defendant's accident occurred on a ship, and the provisions of s 20(5), neither party filed evidence relevant to the registration of the MV Far Gripp and whether it was registered in a State or more than one State. Neither party addressed the applicability of s 20(5) in their written outline of submissions. Whether s 20(5) was relevant only arose during the course of oral submissions before me. I gave the parties leave to file and serve within seven days evidence relevant to the registration of the MV Far Gripp. By letter dated 26 May 2008 the solicitors for the plaintiff, with the consent of the solicitors for the defendant, sought a further 21 days for the filing of further evidence. I decline that application.

95 The originating summons was filed on 12 September 2007 and supported by the affidavit of Mr Sheldrick sworn on the same date. The defendant filed a memorandum of appearance on 25 September 2007. As previously noted the defendant swore an affidavit on 6 December 2007 in opposition to the application. On 4 April 2008 the solicitors for the plaintiff filed a certificate of readiness certifying that so far as the plaintiff was concerned the matter was ready to proceed to a hearing. The matter was originally set down for hearing on 21 April 2008 but was adjourned by consent because of the unavailability of plaintiff's counsel. A supplementary affidavit sworn by Mr Sheldrick was also sworn and filed on 15 April 2008. The matter was re-listed for hearing at a special appointment on 16 May 2008 before myself.

96 In those circumstances and having regard to the system of case flow management as set out in O 1 r 4B of the Rules of the Supreme Court I am not persuaded that to grant the application for an extension of time in which to file further evidence is necessary for promoting the just determination of the matters in issue between the parties, nor for disposing efficiently of the matter nor for maximising the efficient use of the available judicial resources.

97 Pursuant to s 23C of the Workers' Compensation and Injury Management Act 1981 I determine that, if the defendant was employed by the plaintiff under a contract of service or a contract for services as at 21 May 2006 that the employment was connected with the State of Western Australia.

98 I also direct that pursuant to s 23C(2) this determination be entered in the records of the court.

Compensation and Injury Management Act 1981

Compensation and Rehabilitation Amendment (Cross Border) Act 2004

Compensation Act 1985

Compensation and Rehabilitation Act 2003

Work Health Act 1986(NT)

Rehabilitation and Compensation Act 1992

Compensation Act 1987

Compensation Act 1951

Interpretation Act 1901

Support (Assessment) Act 1989

Criminal Cases Act 1967

Compensation Act 1906

(1992) 16 Fam LR 371

TAMBORITHA CONSULTANTS PTY LTD -v- KNIGHT [2008] WADC 78 (30 May 2008)

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Judgment (152 paragraphs)

TAMBORITHA CONSULTANTS PTY LTD -v- KNIGHT [2008] WADC 78 (30 May 2008)

Legislation Cited (12)

Cases Cited (6)