A case summary of Ethnic Interpreters v Saeed
Sabri-Matanagh  WASCA 186
This was an appeal against an award made in favour of the
claimant (respondent) Mr Sabri-Matanagh, an interpreter who had
been injured as a result of an assault on 22 October 2011 during
the course of his employment on Christmas Island.
The appellant (employer) had disputed that compensation was
payable under the Workers' Compensation and Injury
Management Act 1981 (WA)(CI) (WCIM Act) on
the basis that the employment was not connected to the Territory
On 3 October 2013, the appellant had brought an application in
the District Court of WA under s23C of the WCIM Act seeking an
order that the claimant's employment was connected with New
South Wales. Chief Judge Martino in the District Court decided that
the employment was connected with Christmas Island, (which pursuant
to the Christmas Island Act 1958 (Cth)(CI Act), meant with
WA) and dismissed the application.
His Honour determined that in applying s20 of the WCIM Act, it
was not possible on the evidence to identify the "state of
connection" on the basis of where the claimant usually worked
or was usually based for the purpose of his employment. He
therefore concluded that the employment would be connected with the
Territory unless the appellant's "principal place of
business in Australia" was located in another State or
Territory and there was no place outside of Australia where the
claimant would be entitled to receive compensation (s20(6)).
In the claimant's notice of contention in the appeal, issue
was taken with the judge's finding that it was not possible to
identify the State in which the claimant usually worked. The Court
of Appeal, however, considered there to be no merit in the
argument. The appeal was therefore determined on the basis of the
single issue of "principal place of business in
His Honour was unable on the evidence before him to conclude
that there was any place (State of Territory) where the employer
conducted most or the chief part of its business. He therefore was
not able to decide the application by reference to s20(4)(c), and
given that there was no suggestion that the claimant was entitled
to claim compensation outside of Australia, relied on s20(6) in
finding that the State of connection was the Christmas Island
Several grounds of appeal of appeal were expressed, focussing on
the interpretation of "principal place of business in
The Court's preferred interpretation was one "which
looks to the place from where business activities are principally
managed or controlled – the 'head office'". This
was noted to be in contrast to an interpretation that looked to the
place where the business was actually being conducted. In reaching
this conclusion the Court noted that the fact that the WCIM Act
provides for a single State of connection suggests that the
relevant place should be readily and objectively identifiable and
further that "there was no evident statutory purpose to be
advanced by defining the principal place of business by reference
to the State or Territory in which most of the employer's
business activities are conducted".
In the course of the decision, the Court of Appeal noted the
construction of "principal place of business in
Australia" by Commissioner Herron in Tamboritha
Consultants Pty Ltd v Knight  WADC 78 and commented that
it was evidently made "by reference to the place in which the
business activities occurred rather than the place from which they
were managed or controlled". In the opinion of the Court, the
"preferred view" however, was the latter.
Considering the trends in employment towards international
mobility and minimal border limits, it is not at all unusual to
find that courts can often struggle to make a finding on State of
connection based on where the claimant usually works or is usually
based. This decision simplifies the "principal place of
business" test, which should be seen as helpful to employers
and underwriters looking for a greater measure of certainty in the
consequences of their insurance arrangements.
It remains to be seen of course, whether the current test will
be proof against all permutations of commercial arrangements. It is
possible, for example, to imagine a commercial operation where the
most senior management are located in a different state or country
from the operational centre of activities, where there may also be
remnant managerial capability. But it is not the law's place to
deal with the "known unknowns", as the evolution of case
law continually shows us.
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.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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).