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Stratford North Pty Ltd v Workers' Compensation Regulator[2025] ICQ 4

Stratford North Pty Ltd v Workers' Compensation Regulator[2025] ICQ 4

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Stratford North Pty Ltd v Workers' Compensation Regulator & Ors [2025] ICQ 004

PARTIES:

Stratford North Pty Ltd

(Appellant)

v

Workers' Compensation Regulator

(First Respondent)

and

Jared Ross Dinning

(Second Respondent)

CASE NO.:

C/2024/2

PROCEEDING:

Appeal against decision of the Queensland Industrial Relations Commission

DELIVERED ON:

21 March 2025

HEARING DATES:

1 May 2024

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDERS:

  1. The appeal is dismissed.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – APPEAL TO INDUSTRIAL COURT – where appellant employed as a truck driver – where appellant injured during employment – whether the appellant's employment connected with Queensland for the purpose of s 113 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) – whether appellant ''usually works" in Queensland – whether appellant is ''usually based'' in Queensland – where appellant appealed to the Queensland Industrial Relations Commission(QIRC) – where appeal dismissed – where appellant appealed decision of QIRC to the Industrial Court of Queensland pursuant to s 557 of the Industrial Relations Act 2016 – whether appeal filed out of time – where appeal against a decision made under the WCR Act is limited to errors of law or excess or want of  jurisdiction – whether errors of law by commissioner identified in applying s 113 of the WCR Act – whether findings by commissioner supported by the evidence

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 38

Industrial Relations Act 2016 (Qld) , ss 3, 564, 557

Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 32, 113, 561

Industrial Relations (Tribunals) Rules 2000 (Qld) , r 232

CASES:

Abbott v Blackwood [2014] ICQ 031

Avon Products Pty Ltd v Falls [2010] ACTCA 21; 5 ACTLR 34

A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

Briginshaw v Briginshaw (1938) 60 CLR 336

Cameron v Q-Comp [2011] ICQ 27

Chapman v State of Queensland [2003] QCA 172

Coulton v Holcombe [1986] HCA 33

Covill v WorkCover Queensland [2022] QSC 171

Davidson v Blackwood [2014] ICQ 8

Davis v Blackwood [2014] ICQ 9

Ferguson v WorkCover Queensland [2013] QSC 78.

Fox v Percy (2003) 214 CLR 118

Irving v Blackwood [2014] ICQ 030

Jones v Dunkel (1959) 101 CLR 298

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369

Martin v R G Hibbens Pty Ltd [2010] NSWWCCPD 83

Mater Misericordiae Health Service Brisbane Ltd v Q-Comp (2005) QGIG 144

Michael Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Neophytos Foundadjis v Collin Bailey  [2007] ICQ 10

Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177

Stead v State Government Insurance Commission (1986) 161 CLR 141

Stratford North Pty td v Workers' Compensation Regulator & Ors [2023] QIRC 359.

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78

Turay v Workers' Compensation Regulator [2023] ICQ 013

Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281

Wallis v Q-Comp [2012] ICQ 23

Wallsend Ltd (1986) 162 CLR 24

Workers Compensation Regulator v Glass (2020) 4 QR 693

APPEARANCES:

Mr A.C. Harding, Counsel instructed by IM Lawyers for the Appellant.

Mr S.P. Gray, Counsel directly instructed by the Workers' Compensation Regulator, the First Respondent.

Ms M.A. Stone, Counsel instructed by Dwyer Law Group for the Second Respondent.

Reasons for Decision

  1. [1]
    On 16 January 2024 Stratford North Pty Ltd ('the Appellant') filed an appeal against a decision of the Queensland Industrial Relations Commission ('the Commission') confirming a decision of the Workers' Compensation Regulator ('the First Respondent') to grant a claim by Mr Jared Dinning ('the Second Respondent') for workers' compensation entitlements under the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCR Act).  The decision of the Commission was released on 18 December 2023.[1]
  1. Background
  1. [2]
    The Second Respondent commenced employment with the Appellant in or about June 2020. There was no written contract of employment.
  1. [3]
    The Appellant carries on the business as a transport company based in the Northern Territory. Mr Bradley Bloomfield was a director and sole shareholder of the Appellant.
  1. [4]
    The Second Respondent was initially employed to transport and deliver oversized demountable huts from Yatala in Queensland to the Granite gold mines in the Northern Territory ('the huts job'). The Second Respondent spent the first three to four weeks of his employment at Alice Springs preparing the truck in order to undertake the huts job.
  1. [5]
    The Second Respondent commenced driving the truck to collect the huts from Yatala and deliver them to the mines in the Northern Territory. However, sometime in July 2020, because of COVID-19 border restrictions, an arrangement was adopted whereby the Second Respondent drove the huts from Yatala to the Northern Territory border and another driver took the huts from the border to the Granite mine.
  1. [6]
    At the completion of the huts job, the Appellant continued to employ the Second Respondent as an interstate truck driver.
  1. [7]
    On 15 March 2021 the Second Respondent suffered a back injury whilst performing maintenance work on the Appellant’s truck. At the time of the injury, the truck was parked at Morayfield, Queensland.
  1. [8]
    On 6 April 2021 the Second Respondent made a claim for compensation under the WCR Act. 
  1. [9]
    By decision dated 17 May 2021 WorkCover  accepted the application for compensation in accordance with s 32 of the WCR Act.  On 26 November 2021 the First Respondent confirmed the review decision.  The Appellant appealed the review decision to the Queensland Industrial Relations Commission.  On 18 December 2023, the Commission dismissed the appeal finding that the Second Respondent was a worker who is usually based in Queensland for the purposes of his employment pursuant to s 113(3)(b) of the WCR Act.  This is an appeal of that decision.
  1. Statutory Framework
  1. [10]
    Section 113(1) of the WCR Act provides compensation is only payable in relation to employment that is "connected with" Queensland.
  1. [11]
    Section 113 of the WCR Act provides:
  1. 113
    Employment must be connected with State
  1. (1)
    Compensation under this Act is only payable in relation to employment that is connected with this State.
  1. (2)
    The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to employment that is connected with this State.
  1. (3)
    A worker's employment is connected with -
  1. (a)
    the State in which the worker usually works in that employment; or
  1. (b)
    if no State or no 1 State is identified by paragraph (a) , the State in which the worker is usually based for the purposes of that employment; or
  1. (c)
    if no State or no 1 State is identified by paragraph (a) or (b) , the State in which the employer’s principal place of business in Australia is located.
  1. (4)
    In the case of a worker on a ship, if no State or no 1 State is identified by subsection (3) , a worker's employment is, while on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than 1 State) the State in which the ship most recently became registered
  1. (5)
    If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if -
  1. (a)
    the worker is in this State when the injury is sustained; and
  1. (b)
    there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
  1. (6)
    In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer.
  1. (7)
    However, 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.
  1. (8)
    Compensation under this Act does not apply in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1997 (Cwlth) applies to the worker's employment.
  1. (9)
    In this section - State, in a geographical sense, includes a State's relevant adjacent area as described in schedule 4.
  1. Grounds of Appeal
  1. [12]
    Schedule A of the Appellant’s notice of appeal sets out some fourteen grounds of appeal.
  1. [13]
    In brief, the grounds of appeal as expressed in the Appellant’s written submissions and advanced before this Court were as follows:

Ground 1:

The Commission erred by misconstruing and therefore misapplying s 113 of the WCR Act;

Ground 2:

The Commission erred by failing to genuinely consider submissions made by the Appellant as to the proper application of s 113(3)(b) of the WCR Act;

Ground 3:

The Commission made a finding that the Second Respondent was not "usually based" in the NT.  In making this finding the Commission erred by making a number of critical findings which were unsupported by and against the evidence;

Ground 4:

In making the finding that the Second Respondent was "usually based" in Queensland, the Commission erred by making a number of critical findings which were unsupported by and against the evidence;

Ground 5:

Contrary to the holding of the decision in Ferguson,[2] the Commission assessed where the Second Respondent was "usually based" applying a mathematical test;

Ground 6:

The Commission erred by failing to give genuine consideration to submissions by the Appellant that "the only alternative finding which is open is that the Second Respondent did not have a single State where he was usually based".

Ground 7:

The Commission erred by failing to give genuine consideration to submissions made by the Appellant that the Second Respondent lived in his truck.

Ground 8:

The Commission erred by relying on that part of the WorkCover Communication's Report (WC Report) which relates to a conversation between Mr Bloomfield and a WorkCover employee in support of a finding that Mr Bloomfield considered the Second Respondent to be based in Queensland.

Ground 9:

The Commission erred by relying on that part of the WC Report because even if (which is disputed) it recorded Mr Bloomfield's subjective belief that belief was not a relevant consideration for the purposes of s 113(3)(b) of the WCR Act.[3]

  1. [14]
    The Appellant seeks the following:
  1. find the State or Territory in which the Second Respondent was usually based for the purposes of that employment is the Northern Territory;
  1. alternatively, find that the Second Respondent did not have a single State where he was usually based;
  1. find that the Northern Territory is the location where the business activities of the Appellant were controlled or managed; and
  1. substitute a decision that the Second Respondent's employment is not "connected with" Queensland for the purposes of s 113(1) of the WCR Act.[4]
  1. Nature of the appeal
  1. [15]
    The right of appeal[5] is granted pursuant to s 561 of the WCR Act which provides as follows:
  1. 561
    Appeal to industrial court
  1. (1)
    A party aggrieved by the industrial magistrate's or the industrial commission's decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. (4)
    The court's decision is final.
  1. [16]
    Section 561 of the WCR Act gives a right of appeal to this Court.  Section 561 provides an avenue of appeal which is independent of the rights of appeal from the Commission created by the Industrial Relations Act 2016 ('IR Act').[6]  Therefore, the terms imposed by s 557 of the IR Act, which limit grounds of appeal to this Court to errors of law and jurisdiction, except by leave, do not apply.
  1. [17]
    This appeal is one by way of rehearing as that term is commonly understood.[7] 
  1. Whether appeal filed out of time
  1. [18]
    By virtue of s 564(1) and ss(3)(b) of the IR Act, an appeal against a decision of the Commission must be started within 21 days after the decision is released. It is not in dispute that the Commissioner released her decision on 18 December 2023.
  1. [19]
    On the argument advanced by the Second Respondent, the appeal was required to be started by no later than 8 January 2024. The appeal was filed in the Industrial Registry on 16 January 2024 and on the Second Respondent’s submission some 8 days out of time. Accordingly, the Court does not have jurisdiction to hear the appeal unless leave is granted.[8]
  1. [20]
    The First Respondent did not take issue as to whether the appeal has been filed out of time.[9]
  1. [21]
    Section 564 of the IR Act provides:
  1. 564
    Time limit for appeal
  1. (1)
    An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
  1. (2)
    However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
  1. (3)
    In this section -
  1. appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after -
  1. (a)
    if the decision is given at a hearing - the announcement of the decision at the hearing; or
  1. (b)
    if the decision is given through the registrar - the release of the decision; or
  1. (c)
    if the decision is a promotion decision - the decision is publicly notified under the Public Sector Act 2022; or
  1. (d)
    if, under another Act, the decision is given in another way - the decision is given in the other way.
  1. [22]
    Section 564(3) of the IR Act sets out the appeal period being 21 days after a decision is delivered by the Registrar.  The Second Respondent opposes leave being granted and in any event on the basis that the Appellant has no prospects of success
  1. [23]
    Before the Court, the Appellant submitted:

[T]he appeal period in fact ran from 19 December … to 26 December - that's eight days - and then there was the lacuna, where there's a holiday. … And then it ran from … 6 January to 18 January … 13 days.  So the appeal period actually ran till the 18th of January, and the appeal was lodged on the 16th January.[10]

  1. [24]
    To support the submission, the Appellant relies on r 232 of the Industrial Relations (Tribunals) Rules 2000 ('IR Rules'), rule 232 relevantly provides:
  1. 232
    Vacations and holidays
  1. (1)
    The vacations and holidays of the court and commission are the same as the Supreme Court at Brisbane but may be rearranged with the president’s approval.
  1. [25]
    Practice Direction 12 of 2023 – Designation of Court Holidays was issued by the Chief Justice of the Supreme Court of Queensland. The Practice Direction designated the days from Wednesday 27 December 2023 to 5 January 2024 as a court holiday.
  1. [26]
    Section 38 of the Acts Interpretation Act 1954 (Qld) ('AI Act') deals with the calculation of time limits when time limits are specified in any act.  Section 38 provides:
  1. 38
    Reckoning of time
  1. (1)
    If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—
  1. (a)
    if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
  1. (b)
    in any other case—by including the day on which the purpose is to be fulfilled.
  1. (2)
    If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.
  1. (3)
    If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.
  1. [27]
    If the last day falls on an ‘excluded day’, then the final day is the next day that is not an excluded day. Under s 38(5) of the AI Act, “Excluded day” means:
  1. (a)
    for filing or registering a document – a day on which the relevant office at which the documents must be filed or registered is closed; or
  1. (b)
    otherwise, a day that is not a business day in the place in which the thing must or may be done.
  1. [28]
    In reliance on the AI Act, it was submitted by the Appellant that the relevant appeal period ran till 18 January 2024. The appeal was lodged on 16 January 2024 and accordingly it was filed within time.
  1. [29]
    The Appellant’s argument was premised on a misreading of s 38 of the AI Act. The Appellant’s calculation of the appeal period was determined by excluding the days on which the Industrial Registry was closed.
  1. [30]
    In calculating the appeal period, the day the decision was issued is excluded from the calculation. In accordance with s 564(3) of the IR Act and on a proper reading of the AI Act, the appeal period commenced on 19 December 2023 and accordingly, the appeal ought to have been filed in the Industrial Registry on 8 January 2024 being the last day by which something must be done.
  1. [31]
    Section 38 of the AI Act should not be read to exclude the days identified in PD 12 of 2023 from the calculation of the appeal period. Section 38(5) only has application in circumstances where the last day falls on an ‘excluded day’. In those circumstances, the final day is the next day that is not an excluded day.
  1. [32]
    The appeal was lodged out of time.
  1. [33]
    In considering an extension of time in which to appeal, the approach of this Court was described by Hall P in the Neophytos Foundadjis v Collin Bailey[11] [2007] ICQ 10 in the following way:

This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period.

  1. [34]
    Section 346 of the 1999 Act is reproduced as s 564 in the current Act. In applying those principles, this Court will not grant leave unless it is positively satisfied that it is proper to do so.
  1. [35]
    As was said in Chapman v State of Queensland[12]:

In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application … An extension of time will not be granted if the court considers the appeal to be plainly hopeless .

  1. [36]
    In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; and thirdly there must be an explanation for the delay between the expiry of the time period and the time at which the application was filed.
  1. [37]
    Notwithstanding that the appeal was filed out of time, I would nevertheless exercise my discretion pursuant to s 564(2) of the IR Act to allow the appeal to be lodged in a period outside the 21 days.
  1. [38]
    In exercising the discretion, I have considered the time of the year and the reasons advanced by the Appellant for the late filing the appeal, albeit because of a misinterpretation of the statutory provisions. Moreover, the delay in filing the appeal was not significant, the First Respondent does not make an objection to the late filing and the Second Respondent has not asserted that he was otherwise prejudiced by it. In my view, the interests of justice would be best served by granting leave. In those circumstances leave is granted.  

Ground One:

The Commission erred by misconstruing and therefore misapplying s 113 of the WCR Act;

  1. [39]
    This ground of appeal concerns the submission that the Commission erred in misconstruing and therefore misapplying s 113(3)(b) of the WCR Act. For the reasons which follow, I do not accept that submission.
  1. [40]
    What is argued by the Appellant is that the Commission is required to consider and determine whether there was a State or Territory in which the Second Respondent was “usually based” for the purposes of his employment. The legal error in the approach of the Commissioner to the application of s 113 of the Act was said to proceed on the basis that unless there is a State or Territory other than Queensland which was itself capable of satisfying the test then Queensland must satisfy that test.
  1. [41]
    The issue before the Commission was whether the Second Respondent’s employment was connected with Queensland, as determined in accordance with s 113 of the WCR Act.
  1. [42]
    Section 113 (1) provides that compensation is only payable in relation to employment that is connected with Queensland. Subsection (2) provides that being outside Queensland when the injury is sustained does not prevent compensation being payable in relation to employment that is connected with Queensland. The above subsections raise the question of how this connection with Queensland is to be determined.
  1. [43]
    The connection with Queensland is determined by the cascading provisions of s 113(3)[13]. Relevantly for our purposes, subsection (3) of s 113 of the Act sets out three circumstances when it is said that a worker's employment is connected with Queensland, namely:
  1. whether the worker usually works in that employment in Queensland or in another state;
  1. if the state in which the worker usually works in an employment cannot be determined then the state in which the worker is usually based for the purposes of that employment is to be identified; and
  1. if neither of the above identifiers yields a result then a determination needs to be made as to where the employer's principal place of business is located.
  1. [44]
    In Avon Products Pty Ltd v Falls,[14] the Court of Appeal of the Australian Capital Territory described the application of the test in the following terms:
  1. [10]
    The tests are not, however, applied together. Rather, if the first test provides the answer, then that is the end of the matter, but if not, the next test is applied and failing an answer emerging from that test, the third test determines the State or Territory of connection. This approach is significant, because it means that in applying each of the first two tests, it is not appropriate to look for the best answer in all the circumstances, but to assess whether there is a clear answer at all to the question posed by the relevant test. If there is no clear answer, it is necessary to move on to the next test.
  1. [45]
    Section 113 (3)(b) of the WCR Act, and more particularly the term “usually based” was considered by Applegarth J in Ferguson v WorkCover Queensland. [15]
  1. [46]
    The accepted facts in Ferguson were very different to the current matter before this Court. In Ferguson, Tweed Heads was the place where the applicant turned up for work each morning, received his instructions, loaded his truck, reported to and returned to at the end of each workday. Tweed Heads was the place at which the truck he used was based. It was the centre out of which the applicant operated, and the fact that he spent, on average, a large part of his working day driving on roads in Queensland does not alter this fact. The Tweed Heads warehouse was his base and in cross-examination, the applicant accepted that Tweed Heads was where he was based. It was upon this factual matrix that Applegarth J in utilising the test set out in subs (3)(b) of s 113 found that the worker was usually based in New South Wales so that compensation was not payable under the Queensland Act.
  1. [47]
    In dealing with the interpretation of “usually based” his Honour wrote:
  1. [35]
    The term “usually based” was considered in Tamboritha Consultants Pty Ltd v Knight. Commissioner Herron referred to the Shorter Oxford English Dictionary definition of “base” 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.”
  1. [36]
    The test is where the worker is usually based “for the purposes of that employment”, and this may not be the same place in which a majority of the worke’s time is spent each day. I respectfully agree with the statement in Martin v R G Hibbens Pty Ltd that where “a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so.” I also agree with the other observations in that case, which I have quoted in [29] above, about the factors that may be taken into account in considering where a worker is usually based. I add that the place in which the worker’s employer is based may not be the same place in which the worker is based for the purposes of that employment. The place in which the employer chooses to base certain operations for the purpose of administering the contract of employment, for example, for administering payroll, may have little to do with the place at which the employee is based for the purposes of that employment. The location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.
  1. [37]
    In Avon Products Pty Ltd v Falls the Court of Appeal contemplated that it might be said that while working in her sales district in the ACT, the respondent’s vehicle was her base. The Court continued: “What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate.”
  1. [38]
    The authorities which have been required to consider the meaning of “usually based” in the same or similar statutory contexts have adopted the ordinary meaning of “usually” and “base”. I agree with this approach. The determination in those cases of the factual question of where a worker was usually based for the purposes of his or her employment was dependent on the facts of the case, and little is to be gained by detailing those matters.
  1. [39]
    In the facts of the present case, the place at which the applicant started and finished work each day has an obvious relevance. So too is the place to which he returned to collect products, and the place at which the vehicle he used for the purposes of his employment was based. The place at which he planned his daily runs and the place at which he received directions about the work he was to undertake by way of delivering products also are relevant in determining where he was “usually based”. The place at which he worked whilst awaiting delivery jobs is also relevant in determining where he was “usually based”. Whilst regard must be had to these and other facts, none may be decisive in determining where the applicant was “usually based”.
  1. [40]
    It may be inappropriate to place undue weight upon the place at which the worker starts and finishes each working day. During argument I ventured the hypothetical example of a taxi driver who collects a cab from his employer’s yard just inside New South Wales and then spends almost 12 hours in providing taxi services on the Gold Coast, following which he returns the cab to the yard where it is collected by a new driver who commences another 12 hour shift, driving the licensed taxi in Queensland. In such a case the worker spends 10 minutes out of each 12-hour shift in New South Wales, being the State in which his work starts and finishes each day. He collects the vehicle in New South Wales and returns it there. But in such a case the worker might not be “usually based” in New South Wales for the purpose of his employment as a taxi driver. His vehicle may be his base or he may have no base or at least, no usual base. In other cases, for example an airline pilot or a bus driver, the organisation of their employment and their own or their employer’s description of their base may permit a conclusion to be drawn that there is a State in which the worker is “usually based for the purpose of that employment”. Hanns v Greyhound Pioneer Australia Ltd is such a case in which it was common ground that the worker’s “base” was Canberra.
  1. [41]
    In such a case, the one place in which the worker is “based” for the purpose of employment may be a place at which he or she spends a fairly small percentage of a normal working day.
  1. [42]
    The statute contemplates that there may be cases in which there is no State or no one State in which the worker is usually based for the purposes of his or her employment. In that event, the cascading test requires consideration of the State in which the employer’s principal place of business in Australia is located.
  1. [43]
    Depending upon the facts of a particular case, a worker may have no “base” for the purpose of his or her employment, even in a case in which he or she starts and finishes work each day in the same place. If, however, a base or bases are identified, then the question turns to whether a particular base is the place at which the worker is “usually based” for the purpose of that employment. The requirement that the worker is “usually” based involves consideration of whether the worker is customarily, commonly or habitually based in that place.[16]
  1. [48]
    As was observed in Ferguson, whilst the legislation in other States and Territories contain similar provisions for determining whether employment is connected with a State or Territory some care is required in considering decisions in relation to these other provisions because of slight differences in their wording. Nevertheless, the decisions which interpret the meaning of “usually based” in such provisions provide guidance for the proper interpretation of that expression in s 113 of the WCR Act. Let me now turn to a brief survey of those decisions.
  1. [49]
    The term “usually based” was considered in Tamboritha Consultants Pty Ltd v Knight[17] where Commissioner Herron referred to the Shorter Oxford English Dictionary definition of “base” 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.”[18]
  1. [50]
    In Martin v R G Hibbens Pty Ltd[19] Roche DP observed that where “a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so.”[20]
  1. [51]
    Michael Hanns v Greyhound Pioneer Australia Limited,[21] was a case which involved an interstate bus driver for Greyhound, based in Canberra, but performing his duties over routes through New South Wales and occasionally to Victoria and Queensland. The evidence was that Mr Hanns spent approximately 80 per cent of his working hours in New South Wales. His employer argued that the word ‘usually’ should be applied quantitatively, so that the place where a worker spends most of their working hours should be regarded as their usual place of work. Gray J rejected this approach, finding that ‘usual’ should be interpreted in the sense of ‘customary’ or ‘habitual'. His Honour concluded that there was no single usual place of work. It was customary for Mr Hanns to perform his work in more than one jurisdiction. As such, the second tier of the test was invoked, and as the workers base for employment purposes was the ACT, Gray J determined that the ACT was the territory of connection.
  1. [52]
    In Avon Products Pty Ltd v Falls[22] the ACT Court of Appeal contemplated that it might be said that while working in her sales district in the ACT, the respondent’s vehicle was her base.[23] The Court continued:

“What would have particular relevance is the provision by the employer of a place from which the employee is expected to operate.” [24]

  1. [53]
    The essential issue for the purpose of s 113 of the WCR Act is whether the Second Respondent’s employment was connected with Queensland, and this will be so if Queensland is “the State” in which he was “usually based” in that employment. That was a question of fact to be determined by the Commissioner. .
  1. [54]
    At paragraphs [68] to [71] of her reasons the Commissioner wrote:
  1. [68]
    Consideration of where the worker is ''usually based'' requires consideration of where the worker is customarily, commonly, or habitually based. 
  1. [69]
    In Tamboritha Consultants Pty Ltd v Knight, the court stated that the use of the term ''usually based'' suggests it has a different meaning to the term ''usually works'' however, it also noted that they may coincide. 
  1. [70]
    In Covill, Applegarth J outlined the considerations relevant to determining where a worker is 'usually based for the purposes of employment' includes the following:
  • The State in which a worker is usually based may not be the place in which the worker spends the majority of their time;
  • The State in which a worker is usually based may, but is not required to, coincide with the State in which the worker usually works;
  • It may be inappropriate to place undue weight upon the place at which the worker starts and finishes each working day; and
  • The location at which the worker routinely attends to receive directions or collect materials or equipment may be highly relevant.
  1. [71]
    In Tamboritha the court considered the types of matters contemplated by the phrase 'usually based for the purposes of that employment' to include :
  • The location the worker reports to in relation to the work, which may not be the same place in which a majority of the worker's time is spent each day;
  • The location from which the worker's wages are paid; and
  • The location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.(citations omitted)
  1. [55]
    Having undertaken the task required of her under s 113(3)(b) of the WCR Act the Commissioner concluded:
  1. [102]
    After considering all of the evidence, I am satisfied that Mr Dinning was usually based in Queensland on the basis that he was customarily, commonly or habitually based in that State for the purposes of his employment.
  1. [56]
    The approach adopted by the Commissioner was informed by the relevant authorities, consistent with the statutory provision and reflective of the evidence before her. Moreover, her approach was responsive to the submissions advanced by the Appellant and the Respondents.
  1. [57]
    There is no basis to conclude that the Commissioner misconstrued or misapplied s 113(3)(b) of the WCR Act. No error has been demonstrated.

Ground Two:

The Commission erred by failing to genuinely consider submissions made by the Applicant as to the proper application of s 113(3)(b) of the WCR Act.

  1. [58]
    This ground challenges the decision of the Commission on the basis that in respect of       s 113(3)(b) of the WCR Act, the Commissioner failed to grapple with the Appellant’s submission that the only alternative finding open was that the Second Respondent did not have a single State where he was usually based.
  1. [59]
    What was argued before this Court was the assertion that the Commissioner failed to direct attention to and resolve the submission that “…the only alternative finding which is open is that the Second Respondent’s employment did not have a single State where he was usually based."[25]
  1. [60]
    The Commissioner described the Appellant’s submissions in the following terms:
  1. [8]
    The Appellant contends that Mr Dinning did not have a single State in which he ''usually works'' and that the State in which Mr Dinning was ''usually based'' for the purposes of that employment was the NT.
  1. [9]
    In the alternative, the Appellant submits that Mr Dinning did not have a single State where he usually worked or was usually based, in which case the State of connection is the principal place of business in Australia being the NT.
  1. [10]
    The Appellant's submissions regarding s 113(3)(a), in summary, are as follows:
  1. (a)
    It is not contentious that Mr Dinning worked as an interstate truck driver, with Mr Dinning confirming as much in oral evidence;
  1. (b)
    When Mr Dinning suffered the injury, he was preparing for a trip to Port Headland, WA;
  1. (c)
    Between June 2020 and March 2021, Mr Dinning spent about 107 workdays in Queensland; 59 in the NT and 50 across NSW, Victoria, and Western Australia;
  1. (d)
    Upon further assessment using the documents in the trail bundle, the breakdown is that Mr Dinning spent 41 days in the NT; 60 days in Queensland; 5 days in South Australia and 2 days in NSW;
  1. (e)
    Regardless of the precise number of workdays Mr Dinning spent in Queensland, in the NT and in the other States, it is clear he usually worked across mainland Australia;
  1. (f)
    It follows that Mr Dinning did not have a single state that he ''usually works'' in, thus requiring a consideration of the next step in s 113(3)b).
  1. [11]
    The Appellant's submissions in regard to s 113(3)(b) are summarised as follows:
  1. (a)
    The work location was across Australia, supporting a finding that the employment was not based in Queensland;
  1. (b)
    There was no arrangement for Mr Dinning to routinely attend a place to receive directions or collect materials or equipment in relation to the works. However, the arrangement was that if the truck was not in use Mr Dinning would drive with the truck to the NT where the truck would remain while it was not in use so Mr Bloomfield could service it;
  1. (c)
    Mr Dinning routinely reported to Mr Bloomfield in relation to the work and the location he reported to was wherever Mr Bloomfield was situated, which was primarily in the NT. Mr Dinning’s evidence provides the following:
  1. And that work was coming to the company – that’s Brad – in the Northern Territory, wasn’t it? – If Brad was in the Norther – Northern Territory, then yes. He was arranging the work via apps and websites, so - - -
  1. He was arranging the work, wasn’t he? – Yeah. Most of it, yes.
  1. And he was – you were reporting to him about where to go? – Yep.
  1. And you’d report it to him when you’d unladed? – Yep.
  1. And that included you sending him photos of the delivery docket ---? – Yes.
  1. ---so that he could do invoices up? –Yes. As soon as it was delivered.
  1. …
  1. We talked about you reporting back to Mr Bloomfield. And one of the things you reported back to him about how you were going in terms of needing a break because there were restrictions on how many days you could drive without a break? – Yes. Bradley should be aware of that. Being a heavy vehicle operator, you need to have your seventh day off. 
  1. (d)
    The location from which Mr Dinning's wages were paid was the NT. The Appellant's office was in Alice Springs and Mr Bloomfield made the payments from his business bank account using his computer at his depot in Alice Springs. On the occasions when he wasn't in Alice Springs, he would make payments from his truck which was usually in the NT.
  1. (e)
    Mr Dinning had previously advised a Workcover claims' officer that his work was based in the NT. This was summarised as follows in the WorkCover record  :
  1. Details
  1. Jared noted:
  1. Didn't register the claim initially as was worried boss didn't have WC
  1. Is aware he needs a WCMC.
  1. Dr will send one over from today.
  1. Previous discectomy.
  1. Did not do an incident report, it’s only the boss and me. I call him straight away.
  1. The person who was there was Bhen Boyes. (cousin) – boss is Bradley Bloomfield – I stepped back when changing tyres and felt something go
  1. I use my uncles yard to do maintenance
  1. Paid under TFN. Ful time. Salaried, but diff rate when at yard to on road – Truck is supplied by Bradley.
  1. I never get home, I’m often away for months at a time.
  1. I drive all over the country. Work is based out of NT however.
  1. (f)
    The national driver work diary daily sheet, which was completed by Mr Dinning almost invariably records 'NT' as his base. This record is a matter of weight because Mr Dinning agreed that he was familiar with the concept that a driver has a base and that is recorded with the daily sheet.(citations omitted)
  1. [61]
    In paragraphs [92] to [102] of her reasons for decision the Commissioner said:
  1. [92]
    The documentary evidence does not support the Appellant's contention that maintenance work was only performed on the truck in Queensland in the case of emergencies. Mr Bloomfield gave evidence that he tried to have the truck serviced every 15,000 km, and when that could not be done in the NT, he arranged for it be done in Queensland. The truck was regularly serviced in Queensland as evidenced by invoices from Northside Diesel for work performed in Queensland.
  1. [93]
    The October 2020 service coincided with a period of leave taken by Mr Dinning. This supports the evidence of Mr Dinning that it was simply convenient to have the truck serviced in Queensland to minimise the truck’s downtime.
  1. [94]
    Many of the cases referred to by the Appellant indicate that the location of where the work is based is a relevant consideration, however this matter does not involve a single depot into which the worker presents regularly. The documentary evidence indicates that Mr Dinning did not attend the depots in the NT for weeks at a time and in fact on only one occasion did he spend two consecutive days in the NT.
  1. [95]
    The evidence indicates that Mr Dinning circled the NT as his base in his logbook. I accept the Respondents' submission that the concept of a 'base' under freight haulage legislation as reflected in the logbook is not the same as the concept of a worker's 'usual base' for the purposes of the WCR Act. It also appears that Mr Dinning did not always circle the NT, with Qld being circled on a number of occasions. This evidence does not support a determination that Mr Dinning considered that he was usually based in the NT.
  1. [96]
    The Respondent refers to Tamboritha as authority for a finding that a worker was 'usually based' in the State in which the employer was based due to a number of factors. In my view a significant difference in the facts in Tamboritha, was that the worker performed other work for the employer in WA when not engaged in his primary duties. This was one of the factors taken into consideration in determining that the worker was 'usually based' in WA for the purposes of his employment.
  1. [97]
    I accept the Appellant's submission that the requirement of a mutual intention only applies to the test as to where a worker 'usually works' not where the worker was 'usually based'.
  1. [98]
    Mr Dinning gave evidence that he was resident in premises north of Brisbane in Queensland. This evidence was supported by a General Tenancy Agreement indicating that the residential lease commenced on 24 July 2020.  Notwithstanding this arrangement, the evidence of Mr Dinning and his mother Ms Leanne Prince indicates that he spent more time in the truck than at the residence. This evidence supports a conclusion that Mr Dinning was not usually based in his residential home and that he was more often based in his truck. This is not evidence however that this usually occurred in another State as it appears that the truck was primarily based in Queensland.
  1. [99]
    Although the nature of Mr Dinning's work took him to other States, an assessment of working days indicates that for the purposes of his employment, Mr Dinning was usually based in Queensland. I particularly note Mr Bloomfield's evidence that Stratford did not have sufficient work in the NT to justify Mr Dinning's truck being based in the NT.
  1. [100]
    Mr Dinning's evidence that he usually left Queensland with a full load of freight but did not necessarily return with a full load indicates that the pattern of his employment was to return to Queensland as his base. The evidence of Mr Dinning's work in other States cannot reasonably be accepted as indicating that he was customarily, commonly or habitually based in any of these States.
  1. [101]
    I am satisfied that Mr Dinning was based in Queensland and that Mr Bloomfield considered Mr Dinning to be based in Queensland, as evidenced in the WC Report. Although Mr Dinning received his instructions from Mr Bloomfield from the NT via phone or text, he did not have to attend the NT to obtain materials, collect equipment or have his vehicle serviced or maintained. Mr Dinning attended the NT on a number of occasions, however the evidence indicates that Mr Dinning spent significantly more time in Queensland. This arrangement may have evolved in the future such that the work obtained by Stratford could have necessitated more freight transport throughout other States, however at the time of the injury this was simply not the case. Mr Dinning' employment took him to other States, but he was commonly based in Queensland for the purposes of his employment.
  1. [102]
    After considering all of the evidence, I am satisfied that Mr Dinning was usually based in Queensland on the basis that he was customarily, commonly or habitually based in that State for the purposes of his employment.(Citations omitted)
  1. [62]
    The caution to be exercised by this Court when scrutinising the reasons of the Commission was considered in Abbott v Blackwood.[26] In that case, the following extract from the decision of Hall P in Cameron v Q-Comp[27] was referred to with approval:
  1. [18]
    Of course, when considering whether or not a Tribunal has either overlooked some relevant evidence or misconstrued the issue to be determined, an appeal court must not be quick to apply a critical magnifying glass. I agree, with respect, with what Hall P said in Cameron v Q-Comp:
  1. [3]
    It is, however, important for an appeal court to refrain from undue ebullience in seeking-out error in decisions written under the pressure of other work and after lengthy trials. I adhere to the view expressed by this Court in Cunningham and Others (Flower and Hart) v William Hamilton Hart, viz:
  1. ‘… However, I accept that the Court should not be overly enthusiastic to seek out error. Cases abound in which the need for caution and restraint have been emphasised. It is convenient to commence with the observations of Meagher JA in Beale v Government Insurance Office of NSW:
  1. ‘It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.
  1. [63]
    It cannot be properly said that the Commissioner failed to grapple with or give genuine consideration to the Appellant’s submissions as to the application of s 113(3)(b) of the Act.
  1. [64]
    The ultimate task of the Commissioner was to determine the factual question of where the Second Respondent was usually based for the purposes of his employment. What the Commissioner’s reasons demonstrate, is that she engaged at an appropriate level of detail with all the relevant evidence so far as the issues before her were concerned.
  1. [65]
    This ground of appeal amounts to nothing more than a re-argument of the matters raised below. In short, it is an argument that the Appellant’s evidence should have been preferred. Mere differences of opinion however do not found an appeal. Where the Commission has made a finding reasonably open to it, this Court ought not, without more, disturb such a finding, given that it is necessarily at a disadvantage in doing so.[28]
  1. [66]
    No error has been demonstrated.

Ground Three:

The Commission made a finding that the Second Respondent was not "usually based" in the NT.  In making this finding the Commission erred by making a number of critical findings which were unsupported by and against the evidence

Ground Four:

In making the finding that the Second Respondent was "usually based" in Queensland, the Commission erred by making a number of critical findings which were unsupported by and against the evidence

  1. [67]
    Let me deal with appeal grounds three and four together, both seek to challenge the Commission’s findings of fact. 
  1. [68]
    The Appellant sought leave pursuant to s 557 of the IR Act in respect of these grounds on the basis that there is a reasonably arguable case of error in the Commission’s decision which is evident on the objective facts. Leave is not required.
  1. [69]
    Section 557 of the IR Act gives a right of appeal generally from decisions of the Commission. It does not provide an appeal against decisions made by the Commission under the WCR Act. Section 561 of the WCR Act does that.
  1. [70]
    In Turay v Workers' Compensation Regulator,[29] Davis J determined that s 557 of the Industrial Relations Act 2016 does not define the grounds of appeal from a decision of the Commission to this Court, under ch 13, pt 3, div 1A of the Act.
  1. [71]
    In commencing his reasons in Wallis v Q-Comp, [30] Hall P said:
  1. [1]
    Unlike appeals to the Industrial Court under s. 341(1) of the Industrial Relations Act 1999, appeals to the Industrial Court under s. 561(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act), are not restricted to appeals on the narrow grounds of error of law or excess or want of jurisdiction. However, such appeals are true appeals. They are not second chance trials. They are about the correction of error. A decision is not to be set aside or varied, if it is reasonably open on the evidence.
  1. [72]
    What is advanced by the Appellant is, in my view, an attempt to reagitate matters raised below.  It is not a valid ground of appeal that a disappointed party disagrees with the findings below. As observed elsewhere, an error of a particular type must be demonstrated and the mere fact that a member of the Commission has preferred some evidence over other evidence is not, on that ground alone, an appellable error.
  1. [73]
    As Branson J wrote in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [31]:

Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge’s process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.

  1. [74]
    It was submitted by the Appellant that this Court is in as good a position as the Commission to decide that the findings outlined in paragraphs [76], [94] and [101] of the judgment were made in error.
  1. [75]
    However, the extent to which it is possible in an appeal to this Court to overturn findings of fact has been dealt with in decisions of this Court including Irving v Blackwood,[32]. At paragraph 16 of that decision, part of what the High Court said in Coulton v Holcombe,[33] is set out:. The High Court said: Coulton v Holcombe

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main arena for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish.[34]

  1. [76]
    It is well recognised that appellate courts are limited in the manner in which they can deal with findings of fact made by the primary tribunal.
  1. [77]
    The principles which are to be applied were summarised by Muir J in Robert Bax & Associates v Cavenham Pty Ltd, [35]:
  1. [84]
    In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ, discussing the circumstances in which an appellate court should interfere with a trial judge’s findings of fact, said:
  1. ‘… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge‘s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.… In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.’
  1. After referring to the nature of an appeal by way of re-hearing, their Honours said:
  1. ‘The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.’
  1. [85]
    In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:
  1. ‘More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge‘s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.’
  1. Gleeson CJ, Gummow and Kirby JJ, in their reasons in Fox v Percy, referred to Devries as one of three cases in which the High Court had reiterated:
  1. ‘its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the
  1. credibility of witnesses whom the trial judge sees but the appellate court does not.’
  1. [86]
    Their Honours observed that those three decisions ―were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.” (citations omitted)
  1. [78]
    The Appellant challenges the findings of the Commissioner on the basis that the ‘vast majority of the work undertaken by the Second Respondent following the huts contract was performing the Applicant’s subcontract work for two transport companied, Korunye and J & C Meaney Transport which had depots in South Australia and the Northern Territory respectively.” [36]
  1. [79]
    The place in which a worker is “based” for the purpose of employment is different to the various places to which the worker might be required to go in the course of that employment. Authorities like Hanns v Greyhound Pioneer Australia Ltd [37] illustrate that point.
  1. [80]
    The Appellant submitted that the evidence before the Commission was that the Second Respondent was fulfilling the Appellant's work as a subcontractor to Korunye and J & C Meaney Transport, two companies who were not based in Queensland. [38]
  1. [81]
    The evidence dealing with the interstate subcontractors, Korunye and J & C Meaney Transport is dealt with in the reasons of the Commissioner. At paragraph [61] the Commissioner noted that whilst it is only the location of the employer that is relevant to a consideration of s 113(3)(c), the location of the transport companies is not irrelevant to a consideration of where the Second Respondent usually worked. The test under s 113(3)(b) required an assessment to determine whether a worker's employment is connected with the State in which the worker is usually based for the purposes of that employment.
  1. [82]
    The Appellant further complains about the findings of the Commissioner as expressed in her reasons at paragraphs [65] and [66].[39] First, those paragraphs need to be read in the context of the balance of the reasons for decision. Secondly, paragraphs [65] and [66] are dealing with a determination as to the application of s 113(3)(a) and ought to be read in that context. 
  1. [83]
    The Appellant isolates two paragraphs from the rest of the reasons of the Commissioner and, in the absence of that context, seeks to find fault. A decision cannot be read in that way. In order to understand the Commissioner’s reasoning, it is necessary, to read the entire decision and to read each part of it in context.
  1. [84]
    As the authorities illustrate, a worker will usually work in more than one State if the worker habitually or customarily works in a second State. In such a case there will be no one State identified as being the "the State in which the worker usually works in that employment" and the enquiry will turn to determining under s 113(3)(b) the state in which the worker is "usually based" for the purposes of that employment.
  1. [85]
    The concept of "usually based" is, as the authorities suggest essentially a factual determination. The Commissioner’s conclusion was informed by the evidence before her. Without embarking on an exhaustive survey of the evidence before the Commission, let me briefly highlight some of the evidence.
  1. [86]
    The evidence before the Commission was that the truck was driven exclusively by the Second Respondent. Mr Bloomfield’s evidence was:

So the truck would always be where Mr Dinning was located; that’s correct, isn’t it?---Generally, yes.[40]

  1. [87]
    In cross-examination, the following exchange took place:

All right. Well, if we turn to where Mr Dinning was not driving the truck, isn’t the case that when he was not driving the truck, he would take the truck with him to Queensland and he would leave it in Queensland because that was where he resided. That’s where he lived? ---That’s where he lives, yeah.

So when he wasn’t working, he would take the truck back with him to Queensland, he would leave it there - because he was no longer working - and the truck would need to stay there, so that when he started working again, it would be there for him?---Yes, and that’s exactly why it’s not good for my company to - to have it in Queensland.

I’m not asking what’s good for your company or not. I’m asking you about whether the truck stayed in Queensland when it wasn’t being used? ---If Mr Dinning drove the truck to Queensland and he had some time off, then it would have been in Queensland while he was not using it.[41]

  1. [88]
    It was clear from the evidence that the Second Respondent wanted to spend more time in Queensland as the following exchange in cross-examination illustrates:

But just - so you were trying to get so that he could be back in Queensland from time to time for a break?---Yes. Yep. Yeah. He - often he’d want to get back to Queensland - he wanted to get back to Queensland more than - than was good for my company because initially when I employed him from his first four weeks he spent in Alice Springs, you know, from my understanding of it - was that he is happy in Alice and in - and I could have him back in the Northern Territory in Alice Springs for time off and for more maintenance, which was good for the company because, you know, the driver can have time off and I can work on the truck and do the maintenance that was needed, and it sort of works out well for everyone. But as time wore on, Jared wanted to get back more and more to Queensland, and it was - made it very inconvenient and difficult for me to run things properly because the truck was here when it should've been back over there and I couldn’t do the maintenance that was necessary because the driver wanted to be here so he could have his time off and - and that sort of stuff, and it made it very difficult.[42]

  1. [89]
    Whilst it may have been Mr Bloomfield’s intention or preference for the truck to be returned to the Northern Territory, he accepted in cross-examination that the Second Respondent was never directed to return the vehicle to the Northern Territory:

But at no point did you direct Jared that he must return to the truck to the Northern Territory and commence his leave from the Northern Territory?---Jared knew that from our conversations and I told him as such.

I’m not asking what Mr Dinning knew. I’m asking whether you ever directed Mr Dinning to return to the Northern Territory. When he said, “I want to take leave,” did you say, “Okay, you must return the truck to the Northern Territory”?--- No, I don’t - I allowed him to take - take the truck with him. I shouldn’t of.[43]

  1. [90]
    It was submitted by the Appellant that the evidence suggested that Mr Bloomfield was giving the Second Respondent directions from the Northern Territory. Whilst the Second Respondent may not have attended the Northern Territory, he was nevertheless getting directions verbally from there.[44]
  1. [91]
    It cannot be reasonably said that the Second Respondent was receiving directions from Mr Bloomfield. The evidence was that Mr Bloomfield operated his business from premises in Alice Springs and if he was driving his truck, he operated the business from his truck.[45] The nature of the communications between Mr Bloomfield and the Second Respondent could not be characterised as receiving instructions or directions. The communications were in the form of a general conversation, or a text message.
  1. [92]
    In evidence in chief, Mr Bloomfield describe his communication with the Second Respondent in the following terms:

Thank you. Okay. So you’ve described in your evidence the work that Mr Dinning was doing for the company which was subcontracting to these transport companies. Could you expand on that by explaining the system as it worked in terms of communicating between you and him about these jobs?---Jared and I would usually just keep in touch through phone calls and text messages quite often, as we were mates, and that’s how we sort of basically coordinated - we’d just converse, keep in touch like that. And I think the main reason why it was so important I had to get everything back to the Northern Territory and get the truck back in to the Northern Territory was because I had no system at this stage to keep track of everything. No official thing that he had to actually fill out and - fill out and sign and document for me. So I was always reliant on his - his word or his say how things were going. But we would generally just converse, and then, you know, he’d let me know how he was going.[46]

  1. [93]
    Mr Bloomfield told the Commission that as time wore on, communication with the Second Respondent broke down because the Second Respondent was in “Queensland more”:

And so did you communicate with Mr Dinning about these matters?---Yeah. So I would - Jared would let me know when - when he was due for a 24-hour break, or he would say, you know, “Look, I’ve got another two days in my logbook before I have to have a 24-hour break, you know. Should I have one now before I load or something l that?” And we would sort of both keep of track of that and I would say, you know - you know, “Have a - have a 24-hour break now before you load, or maybe load and then go here and have - have your break there and then go on like that.” But, yeah, as time wore on just - it just sort of broke down - a bit less love.

Say that again?---This - this - as time wore on, I found it became - yeah, the - the communication was not - not as good and it became more difficult to organise this because, yeah, as he’s in Queensland more I lost touch of what was happening, really, because the communication broke down.[47]

  1. [94]
    Later in cross-examination, Mr Bloomfield told the Commission:

That’s so I would be able to - he would sort of have a rough plan already, because he would sort of run my trucks as his own, in a way, under his accreditations and whatnot. And then once he and I had worked out a rough plan, I would sort of communicate with Jared and keep in touch with Jared, let him know what we sort of had going on. And then he would - yeah - he would communicate with me about, you know, if he needed a break in terms of his logbook or something like that, or if the truck needed repairs or maintenance abruptly or anything like that. [48]

  1. [95]
    Whilst the Second Respondent was working for the Appellant, the Appellant was subcontracting through trucking companies based in South Australia and it was those companies which in most instances coordinated the work.[49]
  1. [96]
    The evidence suggests that each time the Second Respondent left Queensland it was with a full load. The Second Respondent’s evidence was that most of the time the truck did not travel empty unless it was on the hut job returning to Queensland with empty trailers. However, the majority of the time “… we didn’t like to run empty because you don’t make money”.[50]
  1. [97]
    Whilst Mr Bloomfield may have preferred that the maintenance of the truck should be undertaken in the Northern Territory, that is not what occurred. It was clear from the evidence, in particular the documentary evidence that the truck was periodically and routinely maintained in Queensland.
  1. [98]
    In regard to the maintenance of the truck, the Commissioner concluded:
  1. [92]
    The documentary evidence does not support the Appellant's contention that maintenance work was only performed on the truck in Queensland in the case of emergencies. Mr Bloomfield gave evidence that he tried to have the truck serviced every 15,000 km, and when that could not be done in the NT, he arranged for it be done in Queensland. The truck was regularly serviced in Queensland as evidenced by invoices from Northside Diesel for work performed in Queensland.
  1. [99]
    In cross-examination, Mr Bloomfield was asked:

That and the following pages. Right. Now, you should have four invoices there, the first - well, chronologically, I’m not sure what order they appear in the bundle, but there should be an invoice for the 5th of August 2020, the 10th of November 2020, the 12th of January 2021 and the 22nd 30 of March 2021?---I believe they’ll all be here. Yes, but - - -

Yep. Okay. Well, would you take my word for it that those are the dates?---Yeah. No.

That’s - that’s right. Now, doesn’t that suggest that Northside Diesel performed work on Mr Dinning’s truck roughly every two months in that period? Doesn’t that suggest some kind of regularity or routine in maintenance performed in Queensland?---No, it simply suggests that it’s convenient at the time to use them because I’d no other choice because the HTS job stipulated that the truck should be there to load at that time, so I tried to make the most of it, and also - also Jared wanted to be in Queensland to have his time off and to spend time with his family, and so I tried to be a good employer and allow him to have some time at home at a loss to myself on the truck where I should have insisted - yeah[51]

  1. [100]
    The Second Respondent incurred his injury undertaking maintenance work on the truck. Of course, the location at which the employee was working at the time of his injury and for the period that immediately preceded it, and the terms of his contract, are relevant in determining the “employment” for the purposes of s 113 of the WCR Act.[52]
  1. [101]
    In her written judgment, the Commissioner made a clear assessment of the evidence that ultimately informed her decision. In particular, the Commissioner accepted that the Second Respondent resided in Queensland; the truck was only driven by the Second Respondent and when the truck was not being driven by the Second Respondent, even when the Second Respondent was on leave, it remained with him in Queensland; the truck was periodically and routinely maintained in Queensland; and the Second Respondent would leave Queensland with a full load but did not necessarily return with a full load. Mr Bloomfield acknowledged in his evidence that the Second Respondent was spending more time in Queensland and indeed the Second Respondent was desirous of spending more time in Queensland. Moreover, Mr Bloomfield accepted that he allowed the Second Respondent to return to Queensland with the truck even though it was not necessarily in the best interests of the business to do so. Mr Bloomfield did not necessarily give instructions or directions to the Second Respondent. The communications were in the form of a text message or a general conversation. The evidence was that these communications became more problematic over time as the Second Respondent was spending more time in Queensland.
  1. [102]
    The critical finding of the Commissioner after applying the requisite test was that the Second Respondent was usually based in Queensland for the purposes of his employment. 
  1. [103]
    It is an error of law to fail to have regard to relevant evidence that would materially affect the outcome of a decision.[53] 
  1. [104]
    The Appellant has not particularised the alleged inadequacy of reasons with any precision.  The criticisms are, with respect, factual complaints. It was the prerogative of the Commissioner to take a different approach to the evidence and how it should be assessed. The Commissioner’s reasoning is clear. She has identified the evidence she thought was important, made findings in favour of the respondents and applied the correct legal principles to the facts as found. There are not grounds upon which those findings ought to be disturbed.

Ground Five:

Contrary to the holding of the decision in Ferguson, the Commission assessed where the Second Respondent was "usually based" applying a mathematical test.

  1. [105]
    The argument advanced by the Appellant to support this ground of appeal was that the Commission assessed where the Second Respondent was “usually based” in reliance of a mathematical test. The Appellant argued that this approach was contrary to the approach advanced in Ferguson.
  1. [106]
    The Appellant says that the reasons given by the Commissioner for the finding that the Second Respondent was “usually based” in Queensland was attended with errors of reasoning. The argument advanced is based upon a selective quoting or misreading of various paragraphs in the Commission’s reasons.
  1. [107]
    The Appellant makes specific reference to paragraphs [99] and [101] of the Commissioner’s judgment:
  1. [99]
    Although the nature of Mr Dinning's work took him to other States, an assessment of working days indicates that for the purposes of his employment, Mr Dinning was usually based in Queensland. I particularly note Mr Bloomfield's evidence that Stratford did not have sufficient work in the NT to justify Mr Dinning's truck being based in the NT.
  1. [101]
    I am satisfied that Mr Dinning was based in Queensland and that Mr Bloomfield considered Mr Dinning to be based in Queensland, as evidenced in the WC Report. Although Mr Dinning received his instructions from Mr Bloomfield from the NT via phone or text, he did not have to attend the NT to obtain materials, collect equipment or have his vehicle serviced or maintained. Mr Dinning attended the NT on a number of occasions, however the evidence indicates that Mr Dinning spent significantly more time in Queensland. This arrangement may have evolved in the future such that the work obtained by Stratford could have necessitated more freight transport throughout other States, however at the time of the injury this was simply not the case. Mr Dinning' employment took him to other States, but he was commonly based in Queensland for the purposes of his employment.
  1. [108]
    The Appellant seeks to rely, in isolation on paragraphs [99] and [101]. As discussed elsewhere it is a wrong approach to isolate a paragraph from the balance of the reasons of the Commissioner. Reasons for decision cannot be read in that way. To understand the Commissioner’s reasoning, it is necessary to read the decision in its totality.
  1. [109]
    Both Martin v RJ Hibbens Pty Ltd[54], and Ferguson,[55] make clear that whilst it is not “simply a mathematical exercise”, the time spent in any particular State is still relevant.
  1. [110]
    The Commissioner was alive to the appropriate test to be adopted. In her reasons for decision, she wrote:
  1. [68]
    Consideration of where the worker is ''usually based'' requires consideration of where the worker is customarily, commonly, or habitually based.
  1. [69]
    In Tamboritha Consultants Pty Ltd v Knight, the court stated that the use of the term ''usually based'' suggests it has a different meaning to the term ''usually works'' however, it also noted that they may coincide.
  1. [70]
    In Covill, Applegarth J outlined the considerations relevant to determining where a worker is 'usually based for the purposes of employment' includes the following:
  • The State in which a worker is usually based may not be the place in which the worker spends the majority of their time;
  • The State in which a worker is usually based may, but is not required to, coincide with the State in which the worker usually works;
  • It may be inappropriate to place undue weight upon the place at which the worker starts and finishes each working day; and
  • The location at which the worker routinely attends to receive directions or collect materials or equipment may be highly relevant.
  1. [71]
    In Tamboritha the court considered the types of matters contemplated by the phrase 'usually based for the purposes of that employment' to include:
  • The location the worker reports to in relation to the work, which may not be the same place in which a majority of the worker's time is spent each day;
  • The location from which the worker's wages are paid; and
  • The location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.
  1. [72]
    As noted in Ferguson, an assessment of where a worker is 'usually' based requires consideration of whether the worker is customarily, commonly or habitually based in that place.
  1. [73]
    The court considered in Tamboritha that an assessment of the percentage of time the worker spends in a particular State is not useful in the application of the test in deciding what is the State of connection.(citations omitted)
  1. [111]
    The assessment of working days was but one factor amongst a number of factors considered by the Commissioner in giving judgment. Moreover, the reasons of the Commission were both reflective and responsive to the submissions of both the Appellant and Respondents below.
  1. [112]
    No error has been disclosed.

Ground Six:

The Commission erred by failing to give genuine consideration to submissions by the Applicant that "the only alternative finding which is open is that the Second Respondent did not have a single State where he was usually based".

  1. [113]
    The Appellant advanced a submission that the only alternative finding which is open is that the Second Respondent did not have a single State where he was usually based. [56]
  1. [114]
    I do not accept the submission of the Appellant. It is clear from the reasons of the Commissioner that she took a different view of the evidence.
  1. [115]
    The Appellant complains that the Commissioner did not give a ‘genuine consideration’ of the evidence that a vast majority of the of the work following the huts job was as a subcontractor for Korunye and J & C Meaney Transport. In this regard, the Commissioner accurately and fairly set out the submissions of the Appellant. At paragraphs [59] to [61] the Commissioner identified the Appellant’s submission in the following way:
  1. [59]
    The Appellant submits that the vast majority of the work following the huts contract was as a subcontractor to Korunye and J & C Meaney Transport ['the transport companies']. Mr Bloomfield's evidence was that Korunye had depots in Alice Springs and South Australia and Meaney Transport had depots in Darwin and South Australia.
  1. [60]
    The Respondents submits that the locations of the transport companies are not relevant, and that it is only the location of the employer that may be relevant in accordance with s 113(3)(c). The Appellant however contends that the arrangement for where Mr Dinning would be located depended upon the nature of the transport jobs and where that work was located. The Appellant submits that the work performed by Mr Dinning was tied to the work the transport companies gave to the Appellant, which was to provide interstate transport across mainland Australia.  
  1. [61]
    Whilst it is only the location of the employer that is relevant to a consideration of s 113(3)(c), the location of the transport companies is not irrelevant to a consideration of where Mr Dinning usually worked. The location of these companies is a relevant consideration for the purposes of determining where he usually worked.
  1. [116]
    Again, at paragraph [74] the Commissioner wrote:
  1. [74]
    The Appellant submits that consideration must be had of the location the worker routinely attends to receive directions or collect materials or equipment in relation to work and contends in this matter these locations would include the Korunye and Meaney Transport's depots.
  1. [117]
    Whilst the Appellant submitted that “…the only alternative finding which is open is the Second Respondent did not have a single State where he was usually based”, having assessed the evidence, the Commissioner rejected that submission.
  2. [118]
    The Commissioner reached a conclusion that was open on the evidence.
  3. [119]
    No error has been demonstrated.

Ground Seven:

The Commission erred by failing to give genuine consideration to submissions made by the Applicant that the Second Respondent lived in his truck

  1. [120]
    It is submitted that the Commissioner erred by failing to grapple with or give genuine consideration to the submissions made by the Appellant as to the relevance of s 113(3)(b) of the WCR Act and the fact that the Second Respondent lived in his truck.
  1. [121]
    In this ground of appeal, the Appellant relied on the evidence of the Second Respondent’s mother, Ms Leanne Prince. Her evidence was:

Now, I want you to think back to the period between June 2020 and March 2021. Do you recall where Jared was living at that time?---Mostly he was living in his truck. His - he had a lease on a house and I think he slept there four times.

Where - - -?---Yeah. He mostly lived in his truck.

Do you recall the address of the premises Mr Dinning leased or do you recall the suburb?---It was Glass House Mountains.

Thank you?---Yeah. Sorry.

And you know - you’ve just made reference to Jared’s truck. Did you ever see his truck?---Yes. Where would you see it?---At our house or at my brother’s house.

And what was it doing there?---Mostly getting washed, getting serviced, getting repaired.

And how often would you see it - see the truck there, do you think? An estimate is fine?---Probably half a dozen times.[57]

  1. [122]
    It is not correct to categorise Mr Dinning taking rest breaks in his truck as ‘living in his truck’.
  1. [123]
    In cross-examination, Mr Dinning gave the following evidence:

Yes. Okay. And you - just in terms of Meaney’s and Korunye, those two companies which the - that Stratford was doing work for, you knew that they were based in South Australia, didn’t you?---No. I knew Calvin was based in So - Korunye, but I wasn’t sure where Meaney’s are from. I thought - - -

I - - -?--- - - - they were from Darwin.

You didn’t know. No. Okay. But you knew that working - subcontracting for those companies, as actually happened, you could work anywhere around the country?---We subcontracted for many companies, so yeah, we can work anywhere. We didn’t have a designated set run because we didn’t have any contracts outside of the hut contract which I was initially employed for.

Yes. Yes. And when you travelled overnight, you slept in the truck?---Yes, sir.

Yes. And the truck would be parked in - is it a roadside rest area?---Could be anywhere. Yep.[58]

  1. [124]
    Where the Second Respondent took a rest break or slept is not determinant of where he was usually based for the purposes of his employment. As was observed in Ferguson:
  1. [40]
    … In other cases, for example an airline pilot or a bus driver, the organisation of their employment and their own or their employer’s description of their base may permit a conclusion to be drawn that there is a State in which the worker is “usually based for the purpose of that employment”. Hanns v Greyhound Pioneer Australia Ltd is such a case in which it was common ground that the worker’s “base” was Canberra.
  1. [41]
    In such a case, the one place in which the worker is “based” for the purpose of employment may be a place at which he or she spends a fairly small percentage of a normal working day.
  1. [125]
    However, the evidence of Ms Prince did support the evidence of the Second Respondent that the truck was serviced in Queensland. Between June 2020 and March 2021, Ms Prince observed the truck at her home or her brother’s home on some six occasions “… getting washed, getting serviced, getting repaired.”[59]
  1. [126]
    This ground of appeal is misconceived. The focus of s 113 of the Act is on the relationship between the employment of the worker and the injury sustained as set out in s 32 of the WCR Act with the essential element being upon the connection that the worker's employment has with Queensland.
  1. [127]
    This ground of appeal does not disclose an error. It is again an attempt to reagitate the arguments advanced below. 

Ground Eight:

The Commission erred by relying on that part of the WC Report which relates to a conversation between Mr Bloomfield and a WorkCover employee in support of a finding that Mr Bloomfield considered the Second Respondent to be based in Queensland.

  1. [128]
    What is argued by the Appellant is that the Commissioner erred by relying on that part of the WC Report which related to a conversation between Mr Bloomfield and a WorkCover employee in support of a finding that Mr Bloomfield considered the Second Respondent to be based in Queensland.
  1. [129]
    There are two aspects to this ground of appeal. Both are misconceived.
  1. [130]
    First, the Appellant argues that the reliance by the Commissioner on the WC Report, in particular, the apparent acceptance of the comment of Mr Bloomfield as to where the Second Respondent was based, was somehow a denial of natural justice. The argument as to the breach of natural justice was not fully developed before this Court either in the written or oral submissions.
  1. [131]
    The reliance by the Appellant upon Stead v State Government Insurance Commission[60]is misplaced. Stead was an action for damages for personal injury. The plaintiff claimed that the accident had caused him to suffer a neurotic condition which rendered him totally incapacitated for work. A psychiatrist gave evidence that the accident and the condition were not causally connected. In the course of addressing, the plaintiff’s counsel submitted that the psychiatrist’s evidence should not be accepted on the point of whether there was a causal connection. The trial Judge responded: -

“I don’t accept [the psychiatrist] on that. You needn’t go on, as to that.”[61]

  1. [132]
    In reliance on that comment of the trial judge, Counsel did not pursue the matter further. In giving judgment, his Honour in fact accepted the psychiatrist’s evidence on the point. It was upon those issues that the case was decided. In Stead the Appellant was denied a reasonable opportunity to present his case in support of the argument that certain psychiatric evidence ought not to be accepted.[62] Stead is concerned with the application of different principles and, in any event, the facts in the instant case are distinguishable from the facts in Stead.
  1. [133]
    Secondly, the Appellant relies on a submission advanced below by the Second Respondent that the WC Report was inherently unreliable making it ‘…inadmissible as to the truth or accuracy of the conversation recorded therein”.[63]
  1. [134]
    The WC Report was tendered before the Commission by Counsel for the Appellant as a business record. As the following extract from the transcript of proceedings illustrates, the WC Report was not tendered for any limited purpose:

MR HARDING: - - - number one; number two, it’s a record disclosed by the first respondent, and on that basis it’s a document which under the Uniform Civil Procedure Rules, which apply here - is a document which can be tendered. And - but more importantly, the basis of the tender is that it’s a business record.[64]

  1. [135]
    In Robert Bax & Associates v Cavenham Pty Ltd, [65] Muir JA wrote:
  1. [43]
    It has long been accepted in Queensland that the general principle in civil cases is that inadmissible evidence adduced without objection must be given the probative value the Court considers appropriate. In Roof & Ceiling Construction Co v SA Wigan & Co Pty Ltd, Lucas J, the other members of the Court agreeing, said:
  1. It seems to me that it should now be regarded as settled that when in a civil case inadmissible though relevant evidence is tendered without objection, it may be given such probative value as the court thinks it is worth.
  1. …
  1. [45]
    In R v LRG, Callaway JA, with whose reasons the other members of the Court agreed, in considering an argument that a failure to have the complainant verify in court the content of statements made by her in a police interview constituted a miscarriage of justice, said:
  1. The position was no different, in principle, from any other case where hearsay evidence is admitted without objection at a trial. The VATE tapes, having been introduced into evidence by a police witness, were hearsay if the statutory conditions were not satisfied.
  1. Where hearsay is admitted without objection, there is rarely, if ever, a wrong decision of a question of law ‘within the meaning of the opening words of s 568(1). There is, if anything, a miscarriage of justice. It is a very exceptional case where an objection to hearsay can be taken for the first time in the Court of Appeal. That need not be because of the doctrine of waiver. It is because the reception of hearsay, to which no objection is taken, is an ordinary incident of a trial regularly conducted. Indeed, it would be difficult to conduct most trials without the reception of some technically inadmissible evidence.
  1. [46]
    In Queensland the practice has been that, where a party wishes to confine the evidentiary use which may be made of a document which is admissible for a limited purpose, counsel for that party states that there is no objection to the document being admitted for that purpose or objects to the document being admitted for any other purpose. It is possible that some laxity has arisen in recent years in relation to objections to evidence and there appears to be an increased reluctance now to take evidentiary points unless the evidence objected to is thought to have a potential bearing on the outcome of the case. However, in my view, the practice that I have identified remains. The observations of Callaway JA quoted above assist in illustrating the principle behind the practice. Plainly, a party‘s inability to know what evidence was admissible or inadmissible before the close of its case would substantially impede the efficient and due conduct of the case. To the extent that the consequences of a failure to object are determined by the operation of the doctrine of waiver, the effect of the practice in Queensland is that, generally speaking at least, a party who fails to object to inadmissible hearsay evidence contained in a document which is admissible as original evidence will have waived its right to limit the use to which the evidence may be put.
  1. [136]
    Accepting the statement of general principle as expressed by Muir JA, the WC Report was tendered by the Appellant in cross-examination. No restrictions were placed by the Appellant on the use to which the evidence could be put. The consequence was that the WC Report became evidence for all purposes.
  1. [137]
    No error has been demonstrated.

Ground Nine:

The Commission erred by relying on that part of the WC Report because even if (which is disputed) it recorded Mr Bloomfield's subjective belief that belief was not a relevant consideration for the purposes of s 113(3)(b) of the WCR Act.

  1. [138]
    The Appellant submits that the Commissioner erred by relying on the subjective belief of Mr Bloomfield as recorded in the WC Report.
  1. [139]
    In referring to the WC Report, the Commissioner said as follows:
  1. [89]
    I also note the WC Report records a conversation between Mr Bloomfield and WorkCover, outlined as follows:
  1. Brad confirmed
  1. Full time Qld based employee
  1. …
  1. This was my first time employing someone in Qld
  1. Only took out a policy recently as I’m NT base
  1. [90]
    The WC Report indicates that Mr Dinning was of the view that his work was based out of the NT, which is an accurate reflection of where Stratford was based, but it did not indicate that Mr Dinning was of the view that he was based out of the NT.  It also indicates that Mr Bloomfield considered Mr Dinning to be a fulltime employee based in Queensland.  This is not consistent with a view that Mr Dinning was based in the NT or in any other State for the purposes of his employment.
  1. [91]
    The WC Report was also consistent with Mr Dinning's oral evidence that he undertook maintenance on the truck in Queensland.  Whilst it may have been the original intention of Mr Bloomfield that he undertake maintenance and servicing of the truck in the NT, it appears that the majority of this work was undertaken by Mr Dinning or mechanics in Queensland.(citations omitted)
  1. [140]
    It was submitted by the Appellant that the Commission was required to consider and make its determination of ‘usually based for the purposes of that employment’ as contained in s 113(3)(b) of the Act on the basis of objective facts not subjective beliefs.
  1. [141]
    Before the Commission, the onus was on the Appellant to prove, on the balance of probabilities, that the Second Respondent's employment, at the time of his injury, was not connected with Queensland within the meaning of s 113 of the Act.
  1. [142]
    In Lehrmann v Network Ten Pty Limited [66], Lee J wrote:

… the “balance of probabilities”, is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue:

  1. [143]
    What is involved in the notion of satisfaction on the balance of probabilities was spelt out by Dixon J in Briginshaw v Briginshaw[67]:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty …

  1. [144]
    The Hon Justice Gageler writing extra-curially said that “… what Dixon J was saying in Briginshaw was that satisfaction on the balance of probabilities involves the formation under conditions of acknowledged uncertainty of a subjective belief. The requisite belief is an “actual persuasion” that the fact in issue actually exists — that a past event the occurrence of which is uncertain and is disputed did indeed occur.”[68]
  1. [145]
    The Commissioner concluded on the balance of probabilities that the Second Respondent was usually based in Queensland on the basis that he was customarily, commonly or habitually based in that State for the purposes of his employment. In forming that view, the Commissioner undertook an assessment of all the evidence before her. The determination in this case is a factual one of where a worker was usually based for the purposes of his or her employment. A note recording that Mr Bloomfield as a Director of the Appellant regarded the Appellant as being a “Full time Qld based employee” was of obvious relevance. However, a careful reading of the Commissioner’s decision demonstrates, that the WC Report was but one part of the evidence relied upon by the Commissioner to form her conclusion.
  1. [146]
    In this case, the Appellant has not demonstrated any error in the approach taken by the Commissioner. The Commissioner engaged in a logical examination of the evidence and considered carefully the matters which were raised before her both in evidence and in submissions. Her findings were consistent with the bulk of the accepted evidence and were not inconsistent with other findings that she had made.
  1. Conclusion
  1. [147]
    The Appellant has mobilised a series of repetitive and, in some cases, irrelevant objections. An appeal is not an opportunity for an Appellant to re-argue the case below. For the reasons expressed above, the appeal ought to be dismissed.
  1. Order
  1. [148]
    It is ordered:
  1. 1.
    The appeal is dismissed.

Footnotes

[1] Stratford North Pty td v Workers' Compensation Regulator & Ors [2023] QIRC 359.

[2] Ferguson v WorkCover Queensland [2013] QSC 78.

[3] Application to appeal filed 14 January 2024, Schedule A, [1]-[9].

[4] Appellant's submissions in reply filed on 15 April 2024, [2].

[5] Turay v Workers' Compensation Regulator [2023] ICQ 013, [78].

[6] Workers Compensation Regulator v Glass (2020) 4 QR 693 at [13]-[15].

[7] Turay v Workers Compensation Regulator [2023] ICQ 13 at [80]; and see generally Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281.

[8] TR 1-3, L15-TR 1-4, L4; Second Respondent submissions filed 18 March 2024, [11]-[12].

[9] TR 1-2, LL46-47.

[10] TR 1-5, LL25-41.

[11] [2007] ICQ 10

[12] [2003] QCA 172

[13] Covill v WorkCover Queensland [2022] QSC 171 at [7].

[14] (210) ACTLR 34; [2010] ACTCA 21 at 37 [10].

[15] [2013] QSC 78

[16] Ferguson v WorkCover Queensland [2013] QSC 78.

[17] [2008] WADC 78.

[18] Ibid at [81].

[19] [2010] NSWWCCPD 83

[20] Ibid at [60]

[21] [2006] ACTSC 5

[22] [2010] ACTCA 21; 5 ACTLR 34

[23] Ibid at [32]

[24] ibid

[25] Applicant's Submissions filed 7 June 2023, para 6(c) and 39.

[26] [2014] ICQ 031.

[27][2011] ICQ 27.

[28] Mater Misericordiae Health Service Brisbane Ltd v Q-Comp (2005) QGIG 144 at 145.

[29] [2023] ICQ 13

[30] [2012] ICQ 23

[31] 55 IPR 354 at 355-356

[32] ICQ 030

[33] [1986] HCA 33; 162 CLR 1; 60 ALJR 470; 65 ALR 656

[34] Ibid at [9].

[35] [2012] QCA 177

[36] Appellants submissions filed 16 February 2024, [18].

[37] [2006] ACTSC 5

[38] Appellants submissions filed 16 February 2025, [21]

[39] Appellants submissions filed 16 February 2025, [22]

[40] TR 1-31, LL.40-41 (09.05.2023).

[41] TR 1-28, LL 11-16 (09.05.2023).

[42] TR 1-12, LL. 17-23 (09.05.2023).

[43] TR 1-29, LL 26-34 (09.05.2023).

[44] TR 1-15, LL 23-28 (09.05.2023).

[45] TR 1-17, LL.46-49 (09.05.2023).

[46] TR 1-14, LL.29-41 (09.05.2023).

[47] TR 1-17, LL 12-24 (09.05.2023).

[48] TR 1-14, LL 49 - TR 1-15, LL.1-7 (09.05.2023).

[49] TR 1-11, LI.41-44 , TR 1-12, LL.9-10 (09.05.2023).

[50] TR 1-38, LL 24-25 (09.05.2023).

[51] TR 1-26, LL.27-44 (09.05.2023).

[52] Covill v WorkCover Queensland [2022] QSC 171, [58].

[53] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.

[54] [2010] NSW CC CPD 83

[55] [2010] NSWWCCPD 83

[56] Appellants submissions filed 16 February 2024, [30].

[57] TR 1-62, LL 16-36

[58] TR 1-56, LL 1-18 (09.05.2023).

[59] TR 1-62, LL 32-33 (09.05.2023).

[60] (1986) 161 CLR 141 at 145-6

[61] Stead v State Government Insurance Commission (1986) 161 CLR 141at [6]

[62] Ibid [7]

[63] Second Respondents submissions filed 26 June 2023,  para 35(c)

[64] TR 1-52, LL 23-26 (09.05.2023).

[65] [2012] QCA 177 [2013] 1 Qd R 476

[66] (Trial Judgment) [2024] FCA 369 at [98]

[67] 60 CLR 336 at 361–3.

[68] "Evidence and truth" (2017) 13 (3) The Judicial Review 249.

Close

Editorial Notes

  • Published Case Name:

    Stratford North Pty Ltd v Workers' Compensation Regulator & Ors

  • Shortened Case Name:

    Stratford North Pty Ltd v Workers' Compensation Regulator

  • MNC:

    [2025] ICQ 4

  • Court:

    ICQ

  • Judge(s):

    O'Connor VP

  • Date:

    21 Mar 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16
1 citation
Jump To
Cite 1 - [2019] ICQ 16
Abbott v Blackwood [2014] ICQ 31
2 citations
Jump To
Cite 1 - [2014] ICQ 31
Cite 2 - [2014] ICQ 31
Avon Products Pty Ltd v Falls [2010] ACTCA 21
3 citations
Jump To
Cite 1 - [2010] ACTCA 21
Cite 2 - [2010] ACTCA 21
Cite 3 - [2010] ACTCA 21
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cameron v Q-COMP [2011] ICQ 27
2 citations
Jump To
Cite 1 - [2011] ICQ 27
Cite 2 - [2011] ICQ 27
Chapman v State of Queensland [2003] QCA 172
2 citations
Jump To
Cite 1 - [2003] QCA 172
Cite 2 - [2003] QCA 172
Coulton v Holcombe [1986] HCA 33
2 citations
Jump To
Cite 1 - [1986] HCA 33
Cite 2 - [1986] HCA 33
Covill v WorkCover Queensland(2022) 11 QR 404; [2022] QSC 171
3 citations
Jump To
Cite 1 - [2022] QSC 171
Cite 2 - [2022] QSC 171
Cite 3 - [2022] QSC 171
Davidson v Blackwood [2014] ICQ 8
1 citation
Jump To
Cite 1 - [2014] ICQ 8
Davis v Blackwood [2014] ICQ 9
1 citation
Jump To
Cite 1 - [2014] ICQ 9
Ferguson v WorkCover Queensland [2013] QSC 78
4 citations
Jump To
Cite 1 - [2013] QSC 78
Cite 2 - [2013] QSC 78
Cite 3 - [2013] QSC 78
Cite 4 - [2013] QSC 78
Foundadjis v Bailey [2007] ICQ 10
3 citations
Jump To
Cite 1 - [2007] ICQ 10
Cite 2 - [2007] ICQ 10
Cite 3 - [2007] ICQ 10
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5
3 citations
Jump To
Cite 1 - [2006] ACTSC 5
Cite 2 - [2006] ACTSC 5
Cite 3 - [2006] ACTSC 5
Irving v Blackwood [2014] ICQ 30
1 citation
Jump To
Cite 1 - [2014] ICQ 30
Jones v Dunkel (1959) 101 CLR 298
1 citation
Jump To
Cite 1 - (1959) 101 CLR 298
Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83
3 citations
Jump To
Cite 1 - [2010] NSWWCCPD 83
Cite 2 - [2010] NSWWCCPD 83
Cite 3 - [2010] NSWWCCPD 83
Mater Misericordiae Health Service Brisbane Ltd v Q-Comp (2005) QGIG 144
2 citations
Jump To
Cite 1 - (2005) QGIG 144
Cite 2 - (2005) QGIG 144
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
3 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Cite 3 - (1986) 162 CLR 24
Robert Bax & Associates v Cavenham Pty Ltd[2013] 1 Qd R 476; [2012] QCA 177
4 citations
Jump To
Cite 1 - [2012] QCA 177
Cite 2 - [2012] QCA 177
Cite 3 - [2012] QCA 177
Cite 4 - [2013] 1 Qd R 476
Stead v State Government Insurance Commission (1986) 161 CLR 141
3 citations
Jump To
Cite 1 - (1986) 161 CLR 141
Cite 2 - (1986) 161 CLR 141
Cite 3 - (1986) 161 CLR 141
Stratford North Pty Ltd v Workers' Compensation Regulator [2023] QIRC 359
2 citations
Jump To
Cite 1 - [2023] QIRC 359
Cite 2 - [2023] QIRC 359
Sydneywide Distributors Pty Ltd & Anor v Red Bull Australia Pty Ltd & Anor (2002) 55 IPR 354
1 citation
Jump To
Cite 1 - (2002) 55 IPR 354
Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78
2 citations
Jump To
Cite 1 - [2008] WADC 78
Cite 2 - [2008] WADC 78
Turay v Workers' Compensation Regulator [2023] ICQ 13
4 citations
Jump To
Cite 1 - [2023] ICQ 13
Cite 2 - [2023] ICQ 13
Cite 3 - [2023] ICQ 13
Cite 4 - [2023] ICQ 13
Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281
2 citations
Jump To
Cite 1 - (1976) 2 NSWLR 281
Cite 2 - (1976) 2 NSWLR 281
Wallis v Q-COMP [2012] ICQ 23
2 citations
Jump To
Cite 1 - [2012] ICQ 23
Cite 2 - [2012] ICQ 23
Workers' Compensation Regulator v Glass(2020) 4 QR 693; [2020] QCA 133
2 citations
Jump To
Cite 1 - (2020) 4 QR 693
Cite 2 - (2020) 4 QR 693

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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