The following is a case note on the matter of Weir Services
Australia v Allianz Australia Insurance Limited  NSWSC
It is difficult to know these days whether it is underwriting or
claims that gets the most headaches from situations involving cross
border issues and the "State of connection". In this
action, Chief Justice Bergin, in the Equity Division of the Supreme
Court of New South Wales, was called upon to consider one such
In most States, common provisions have been enacted to simplify
and regularise decisions on disputes where questions of
jurisdiction arise between Australian States.
Uncertainties develop when employment arrangements embody a
mixture of elements such as the following:
Worker lives in state A, is engaged by an employer located
in state B to work on a project located in state C.
There are many permutations of this type of employment
In Western Australia, s.20 of the Workers' Compensation
and Injury Management Act deals with the issue and is in
substantially the same terms as s.31A of the Workers'
Rehabilitation and Compensation Act 1988 in Tasmania.
In this case Mr Taylor, who lived in Perth, was employed by the
plaintiff, Weir Services Australia Pty Ltd, to work on a temporary
basis in a project in Tasmania.
Weir had an employers' indemnity insurance policy with
Allianz in Tasmania.
Taylor commenced his employment in Tasmania on 11 February 2008
and was injured on 16 February 2008. He received payments of
compensation on an ex-gratia basis from Weir (the plaintiff), which
in turn sought reimbursement from Allianz under its employers'
Allianz disputed liability with the result that Weir's claim
for indemnity under the policy came before the Court for
The question was whether Mr Taylor's employment was
connected with the State of Tasmania and the issues were narrowed
such that the question to be decided was, pursuant to s31A(1)(a),
where Mr Taylor usually worked in the employment.
Sub-section 6(b) states that in deciding whether a worker
usually works in a State, "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".
The intended period of employment was less than six months and
the period of actual employment only a few days. Allianz argued
that in determining the State of connection, by reason of ss.6(b),
the brief period of employment in Tasmania should be
Chief Justice Bergin reviewed the authorities, including the
decision of Commissioner Herron in Western Australia in the case of
Tamboritha Consultants Pty Ltd v Knight and had no
difficulty reaching the conclusion that the employment in question
was not excluded from consideration. The provision was not intended
to apply to such a case, but was intended to apply to an employee
who is normally based in one State and who on a temporary basis of
not more than six months was required to work in another State.
The Chief Justice was satisfied that Tasmania was the State of
connection and ordered Allianz to indemnify Weir.
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.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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”
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).