Australia: Territory or state of connection test for jurisdiction in workers compensation claims

Legal Directions - October 2011
Last Updated: 2 November 2011
Article by Emma Reilly

Ellis v Weldcraft Engineering ACT Pty Limited and Anor [2011] ACTSC 164

Interlocutory application as to jurisdiction

The plaintiff was a labourer and apprentice boilermaker. He was injured while working on a building site at Manuka in the Australian Capital Territory in June 2005. A workers compensation claim was accepted by the NSW insurer of his employer. Common law proceedings were subsequently commenced on behalf of the plaintiff in the ACT Supreme Court seeking damages as a result of his injury from the employer and the head contractor on site.

By the date of injury, the territory or state of connection test had commenced in the ACT with regard to jurisdiction for workers compensation claims and choice of law for common law work injury claims. The choice of law provisions provide that if NSW is the state of connection for a worker, NSW law applies to the availability of and determination of common law damages, even if the worker is injured in another state or territory. This is different to the common law position that the law of the place of the tort applies to the damages claim as enunciated by the High Court of Australia in Pfeiffer v Rogerson [2000] HCA 36.

The territory or state of connection test and corresponding choice of law provisions were subsequently introduced in NSW in February 2006 as part of an agreement between the state and territory governments to introduce a nationally uniform test for jurisdiction in workers compensation claims.

The employment connection test is as follows:

'A workers' employment is connected with:

  1. The Territory or State where the worker usually works in the employment
  2. if no Territory or State, or no single Territory or State, is identified by paragraph (a) – the Territory or State where the worker is usually based for the purposes of the employment
  3. if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b) the Territory or State where the employer's principal place of business in Australia is located.'

The plaintiff asserted in the statement of claim that at all material times he usually worked in the Australian Capital Territory. If that was the case, the first tier of the test would apply and the ACT would be the territory of connection. The workers compensation claim would need to be dealt with by the ACT insurer and unfettered common law damages would be available from the employer with reference to the ACT law.

When the assertion of usual work in the ACT was denied in the Defence filed on behalf of the employer, the plaintiff filed an interlocutory application for a determination of the issue heard by Master Harper on 26 September 2011.

Affidavit and oral evidence was given by the plaintiff and a fellow employee and friend, Mr Yates. Oral evidence was also given by Mr Boschert, manager. Whilst there were some areas of disagreement on the facts, it was common ground that the plaintiff started employment in February 2003 as a labourer. He became an apprentice boilermaker and welder in January 2004. He lived in the suburbs of Canberra. The plaintiff was required to report to the employer's premises in Queanbeyan in New South Wales each morning and that was his base for employment with reference to the second tier of the test.

There were some differences in the evidence of the plaintiff and Mr Yates as compared to the manager from the employer as to the extent to which the plaintiff was working out on site in the ACT as opposed to at the workshop in NSW. Master Harper indicated that he would not make a decision if that evidence would affect the outcome, as a trial would be required to determine the version of events to be accepted.

However, with reference to the interpretation of 'where the worker usually works' discussed by Gray J in Hanns v Greyhound Pioneer Australia Limited (2006) 196 FLR 361, it could be found that NSW was the state of connection without resolving the contention in the evidence. That is because there was enough work in both jurisdictions so that there was no single usual place of employment. The second tier of the test applied and the state in which the employment was based was the state of connection, that being NSW.

The effect of the determination is that the substantive law of NSW governs whether or not the plaintiff can make a damages claim against the employer, and if so the determination of that claim. As there is no statutory provision affecting the common law position as to jurisdiction with regard to the plaintiff's claim against the head contractor, ACT law applies to that claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.