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:
- The Territory or State where the worker usually works in the employment
- 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
- 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.
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