Waters v Rerj Pty Ltd[2022] QDC 255

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant commenced employment as a truck driver with Shackell Transport Pty Ltd (“Shackell Transport”) on 8 April 2019.  The terms of employment are contained in a letter of employment signed by the applicant on 1 May 2019.
2. [2]
   The applicant resided at Elanora on the Gold Coast, Queensland.
3. [3]
   Shackell Transport’s depot was at 1010 Pottsville Road, Pottsville, New South Wales.
4. [4]
   The applicant would drive his own vehicle from Elanora to the depot at Pottsville, a distance of approximately 42 kilometres.  The applicant collected the truck he was to drive and then commenced deliveries in accordance with a schedule sent by the allocators of work at Shackell Transport.  After completing his deliveries, the applicant returned the truck to the depot.
5. [5]
   The applicant asserts that on 31 May 2019 he suffered an injury to his neck while he was in the process of collecting a load of steel coils from a warehouse at Larapinta in Queensland.
6. [6]
   The applicant was unable to continue his role with Shackell Transport due to ongoing pain and restrictions, and resigned his position on 1 July 2019.
7. [7]
   An application for workers’ compensation was lodged with Insurance and Care NSW (“iCare”) which resulted in weekly benefits being paid for about one month.  Subsequently, the applicant received a letter from iCare advising that his claim was declined on the basis that his employment was not connected with New South Wales.
8. [8]
   An application for workers’ compensation was lodged with WorkCover Queensland which resulted in the payment of statutory benefits from about 21 October 2019 to 1 April 2020.  On 9 December 2020 the applicant lodged a notice of claim for damages pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”).  On 24 February 2022 WorkCover, through their solicitors, advised the applicant’s solicitors that liability was denied on the basis that the applicant’s employment was not connected with the State of Queensland as required by s 113 WCRA.
9. [9]
   On 20 May 2022, the applicant filed a claim for damages against Rerj Pty Ltd (“Rerj”) for personal injuries arising from the incident on 31 May 2019.^[1]
10. [10]
    By originating application filed 30 September 2022 the applicant seeks declarations that his employment for the purposes of his application for compensation and any claim for common law damages was, in accordance with s 113 WCRA, connected with the State of Queensland and/or a declaration that s 10(2)(b) WCRA does not apply to his claim for damages.
11. [11]
    The originating application filed on 30 September 2022 named Shackell Transport as the first respondent.  The ASIC records state that on 30 November 2021 Shackell Transport resolved to change its name to Rerj.
12. [12]
    After hearing further submissions on 11 November 2022, an order was made substituting Rerj for Shackell Transport.  Rerj has notice of the application although it has not been formally served.^[2] 

The applicable legislation

13. [13]
    Section 113 WCRA is part of a scheme throughout the Commonwealth which provides for the determination of territorial nexus.  Compensation under the WCRA is only payable in relation to employment that is connected with Queensland: s 113(1).  The fact that a worker is outside Queensland when the injury is sustained does not prevent compensation being payable under the WCRA in relation to employment that is connected with Queensland: s 113(2).
14. [14]
    Section 113(3) provides:

“113 Employment must be connected with State

…

3. (3)
   A worker’s employment is connected with—

1. (a)
   the State in which the worker usually works in that employment; or

2. (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

3. (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.”

15. [15]
    Section 113(6) states:

“(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.”

16. [16]
    There are identical provisions in New South Wales.^[3]

The issues

17. [17]
    The issues for determination are whether the applicant usually worked in Queensland,^[4] or if no State or no one State is identified whether he was usually based in Queensland.^[5]  The parties agreed that Shackell Transport’s principal place of business was in New South Wales so the applicant did not rely on s 113(3)(c) WCRA.

18. [18]
    The tests in s 113(3) have been described as “cascading provisions”,^[6] or “a sequential or cascading series of steps or tests for determining whether a worker’s employment is connected with the State or Territory under consideration.”^[7]  As explained by the Court of Appeal of the Australian Territory in Avon Products Pty Ltd v Falls;^[8]

“[10] The tests are not, however, applied together.  Rather, if the first test provides an 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.”

19. [19]
    The applicant submits that although he made some deliveries in New South Wales, he usually worked in Queensland.  Alternatively, he submits that he was usually based in Queensland for the purposes of his employment.
20. [20]
    WorkCover submits that the application of s 113 WCRA and s 9AA Workers Compensation Act 1987 (NSW) means that the applicant’s employment was connected with New South Wales rather than Queensland.  Accordingly, WorkCover submits that by virtue of s 10(2)(b) WCRA the applicant has no entitlement to common law damages in Queensland and it is not liable to indemnify for any claim arising out of his notice of claim.
21. [21]
    In Ferguson v WorkCover Queensland^[9] Applegarth J explained that:

“[20] The expression ‘usually works’ appearing in s 113(3)(a) of the Queensland Act and s 9AA(3)(a) of the NSW Act are contained in provisions which are intended to determine whether a worker’s employment is connected to a State.  They appear in provisions that are intended to enable the appropriate State jurisdiction to be ascertained for workers’ compensation purposes.  These provisions were intended to ‘eliminate the need for employers to obtain workers’ compensation coverage for a worker in more than one jurisdiction’.  Section 9AA of the NSW Act was intended to provide ‘certainty for workers about their workers’ compensation entitlements and ensure that each worker is connected to one jurisdiction or another.  The expression ‘usually works’ appears in provisions which create progressive tests or a ‘cascading test’ for determining whether the worker’s employment is connected with a State.”

22. [22]
    Having regard to the statutory context of s 113(3)(a) WCRA, a worker could usually work in more than one State.  The issue is not determined by simply calculating where the worker spent the majority of their time at work.^[10]
23. [23]
    In Ferguson v WorkCover Queensland^[11] Applegarth J analysed the relevant authorities and concluded:

“[32] The authorities which I have discussed apply the ordinary meaning of ‘usually’ in its statutory context and conclude that the expression ‘usually works’ means the place where the worker habitually or customarily works, or works in a regular manner.  The determination of the State in which the worker ‘usually works’ in that employment is not determined by deciding the State in which the worker spends the majority of his or her work time.  The time spent in any particular State is still relevant. It is possible that a worker usually works in more than one State.  The subsection does not involve a mathematical test.  There is no fixed percentage of time spent working, above which a worker is taken to usually work in a State.  It is possible to imagine clear cases in which the worker’s presence in a State is fortuitous, fleeting, uncommon or sufficiently unusual that one can easily conclude that the worker does not usually work in the relevant employment in that State.  Other cases may be more finely balanced.”

24. [24]
    The work history with the employer, and the intention of the worker and employer must be considered in deciding whether a worker usually works in a State.^[12]  In referring to this provision in Covill v WorkCover Queensland^[13] Applegarth J said:

“[33] The singular word ‘intention’ suggests a mutual or shared intention held by both the worker and employer, rather than a subjective intention held by one or the other.  Any mutual intention is a matter to which regard must be had.”

25. [25]
    The issue of where a worker is “usually based” requires “… consideration of whether the worker is customarily, commonly or habitually based in that place.”^[14]  The place where the worker attends to receive instructions or obtain equipment may be highly relevant.^[15]  On the other hand, the place where the worker starts and finishes each day may not be decisive.^[16]

The facts

26. [26]
    The applicant relied on his affidavits and he was called for cross-examination.^[17]
27. [27]
    WorkCover relied on the affidavits of their solicitor and Mark Anthony Cotelli, who was the business development manager at Shackell Transport at the relevant time.  Mr Cotelli was called for cross-examination.
28. [28]
    The essential facts are not really in issue.
29. [29]
    The applicant moved from Sydney to Elanora on the Gold Coast with his family in September 2018.  He had over 30 years experience driving various types of prime movers.  Shortly after moving to Queensland, the applicant commenced employment as a truck driver with a company based at Currumbin.  This employment involved a great deal of long-distance driving which meant that he was away from his family for several days at a time.
30. [30]
    The applicant made an enquiry about employment with Shackell Transport and spoke to Mr Cotelli.  He was advised that Shackell Transport had interstate and “top end” driving work.  The applicant understood “top end” driving work as involving Queensland based work.  The applicant was attracted to the position because it enabled him to be home with his family at the end of each workday.
31. [31]
    The applicant said that he understood his position to be a “top end” driver, making deliveries consisting predominantly of stone slabs in the Brisbane area. 
32. [32]
    The applicant commenced employment on 8 April 2019.  His employment was permanent.  The position was described as “local truck driver”.  The letter of employment stated that the applicant was required to perform his duties at 1010 Pottsville Road, Pottsville, New South Wales, or elsewhere as reasonably directed by the employer.^[18]
33. [33]
    The applicant reviewed his “Employee Weekly Work Diary” for the period 8 April 2019 to 12 June 2019.^[19]  Based on the Work Diary and his own recollection, the applicant provided a detailed chronology of his work history.^[20]  By way of illustration, the applicant said that on Monday 8 April 2019 he collected a semi-trailer from the depot and drove to a destination at Yatala in Queensland where he delivered stone slabs.  From there he drove to a second destination at Pinkenba in Queensland where he delivered stone slabs.  He then returned to the depot.  The applicant said that he worked for 10 hours and travelled 186 kilometres.  He estimated that he spent about one hour of the workday in New South Wales and the remaining nine hours in Queensland.^[21]  Another illustration is that on 10 April 2019 the applicant spent his entire workday in New South Wales delivering sugar to Harwood and Lismore.^[22]  Another example of a workday is that on 23 April 2019 the applicant collected a semi-trailer from the depot and travelled to a destination in Coopers Plains where he delivered stone slabs.  He estimated that he spent about one hour of the workday in New South Wales and the remaining 6.5 hours in Queensland.^[23]
34. [34]
    Over a three-day period from 8 May 2019 to 10 May 2019 the applicant travelled to Sydney and Melbourne.^[24]  The applicant says that this interstate trip was a “one-off trip”.  He had requested an interstate trip because the pay was significantly higher.^[25]
35. [35]
    The applicant summarised the position in relation to his work in Queensland and New South Wales as follows:

“74. In the period between 8 April 2019 and 12 June 2019, I worked approximately 31 days working in Queensland.  I spent approximately 310 hours travelling approximately 10,742 kilometres in Queensland.  I have made this estimate on the basis of my records related to the driving I did over that period.

75. In the period between 8 April 2019 and 12 June 2019, I worked approximately 8 days in New South Wales.  I spent approximately 102 hours travelling approximately 3,845 kilometres in New South Wales.  I have made this estimate on the basis of my records related to the driving I did over that period.”^[26]

36. [36]
    Mr Cotelli described “top end” work as referring to freight between Sydney and Brisbane that transits through the depot at Pottsville.^[27]  He says that the applicant would not have been told that he would be a “top end” driver or that his work would ordinarily involve transporting freight to various locations in south-east Queensland, because this is not the basis on which drivers are employed.^[28]
37. [37]
    Mr Cotelli said that during the applicant’s period of employment there was a Queensland public holiday for Labor Day on 6 May 2019 and that the applicant was not paid for a public holiday.  There was a New South Wales public holiday for the Queen’s Birthday on 10 June 2019 where the applicant was paid for a public holiday.^[29]
38. [38]
    Mr Cotelli explained the process that drivers were required to follow.^[30]

The submissions for the parties

39. [39]
    Mr Green who appeared for the applicant submitted that the applicant’s employment was connected with Queensland because he usually worked in Queensland.  He based his submission on: (a) the understanding of the worker in the context of his role; (b) the typical pattern of his work which required that he habitually undertake deliveries in Queensland; (c) the locations where he made deliveries or collected freight were in Queensland; and (d) that he was required to abide by Queensland regulatory provisions and undertook his leave in accordance with those provisions.^[31]
40. [40]
    Mr Green emphasised a change in the pattern of the applicant’s driving to predominantly Queensland-based work as supporting the contention that he usually worked in Queensland.  It was accepted that the applicant undertook some deliveries in New South Wales, but that did not displace the position that he usually worked or was usually based in Queensland.  Mr Green submitted that any deliveries outside Queensland were “fleeting or ephemeral”.^[32]
41. [41]
    Mr Harding, who appeared for WorkCover, submitted that a worker can usually work in more than one State.  He submitted that the applicant’s employment with Shackell Transport was relatively brief and although he spent more time driving in Queensland, in addition to undertaking a three-day interstate trip to Sydney and Melbourne, the applicant spent eight days driving solely in New South Wales and three days driving in both New South Wales and Queensland.  In addition, the applicant commenced and concluded each working day at the depot at Pottsville in New South Wales.  It was submitted that there was no mutually shared intention that the applicant would only work in Queensland.  His work history with Shackell Transport was that he performed his work duties in Queensland and New South Wales.^[33]
42. [42]
    Mr Harding submitted that the applicant worked in New South Wales and Queensland.  If that was accepted, it was submitted that the applicant’s usual base was at the depot at Pottsville, which is where he turned up for work each morning, picked up his truck, and returned to at the end of each workday.^[34]

Consideration

43. [43]
    The applicant was required by the contract of employment to perform his duties at Pottsville, New South Wales, or elsewhere as reasonably directed by Shackell Transport. 
44. [44]
    The determination of where a worker usually works is not ascertained by a mathematical calculation of where the worker spent most of their time.^[35]
45. [45]
    I do not accept that the applicant’s deliveries in New South Wales were “fleeting or ephemeral”.^[36]  Apart from the fact that the applicant started and finished each working day at the Pottsville depot, the occasions when he spent the entire day in New South Wales involved travelling significant distances.
46. [46]
    On 9 April 2019 the applicant collected a tanker from the depot at Pottsville and drove to a destination at Harwood where he delivered sugar.  He then drove to Lismore where he also delivered sugar and then drove back to the depot at Pottsville.  The applicant worked for six hours and travelled 240 kilometres in total.  The entire six-hour period was spent working in New South Wales.^[37]
47. [47]
    On 10 April 2019 the applicant made similar deliveries of sugar to Harwood and Lismore.  On this occasion he completed the trip twice; working for 12.5 hours and travelling 460 kilometres in total.  The entire working day was spent in New South Wales.^[38]
48. [48]
    On 12 April 2019 the applicant again travelled to Harwood and Lismore in New South Wales, completing the trip twice.  He worked for 12 hours and travelled 460 kilometres.  Once again, the entire working day was spent in New South Wales.^[39]
49. [49]
    On 16 April 2019 the applicant collected a tanker from the depot at Pottsville and travelled to Harwood delivering sugar and then to Lismore where he also delivered sugar.  That trip was completed twice.  The applicant worked for 12 hours travelling 460 kilometres in total.  The entire working day was spent in New South Wales.^[40]
50. [50]
    On 24 April 2019 the applicant made similar trips to Harwood and Lismore, completing the trips twice.  He worked for 13 hours and travelled 460 kilometres in total.^[41]  On 30 April 2019 the applicant made similar trips; working for a total period of 12.5 hours and travelling 460 kilometres.^[42]  On 30 April 2019 the applicant made similar trips to Harwood and Lismore completing the trips twice and travelling 460 kilometres in total.  He worked for 12.5 hours, and the entire working day was spent in New South Wales.^[43]
51. [51]
    On 30 May 2019 the applicant collected a tanker from the depot at Pottsville and once again travelled to Harwood and Lismore making deliveries of sugar.  He completed the trip twice; working for 15 hours and traveling 460 kilometres in total.  The entire working day was spent in New South Wales.^[44]
52. [52]
    The applicant’s interstate trip to Sydney and Melbourne from 8 May 2019 to 10 May 2019 involved the delivery of molasses to Sydney and the collection of chemicals from a site in Melbourne.  The applicant drove approximately 2695 kilometres on that trip.^[45]
53. [53]
    On days when the applicant’s deliveries were in Queensland, he generally estimated that he spent one hour of the working day in New South Wales and the balance in Queensland.  For example, on 2 May 2019 the applicant collected a semitrailer from the depot at Pottsville and travelled to Molendinar where he delivered stone slabs. He then travelled to Ormeau where he also delivered stone slabs. He then drove to Woolloongabba where he delivered tiles, and then returned to the depot.  The applicant worked 11 hours and travelled 477 kilometres in total.  He estimated that he spent one hour of the working day in New South Wales and the remaining 10 hours in Queensland.^[46]
54. [54]
    The present case has similar features to the facts in Ferguson v WorkCover Queensland^[47] where the applicant was employed as a delivery driver.  The truck he drove was based at his employer’s warehouse at Tweed Heads, just over the New South Wales border.  The applicant’s duties included making deliveries to Beenleigh in the north, Jimboomba, Beaudesert and Springfield Lakes in the west, and Casino and Lismore in the south.  In the period of six months before his injury, the applicant estimated that 70 or 80 percent of his deliveries were in Queensland.  The applicant attended the Tweed Heads warehouse each day for the purpose of planning his deliveries and loading the truck.  The fact that the applicant spent more time making deliveries in Queensland than in New South Wales did not mean that he did not usually work in New South Wales.  Applegarth J held that the applicant usually worked in Queensland and also usually worked in New South Wales.  Having decided that there was no one State where the applicant usually worked, his Honour next considered the State where he was usually based and concluded that the Tweed Heads warehouse was the centre out of which the applicant operated.  The fact that the applicant spent a larger part of his day driving on Queensland roads did not alter the position that he was usually based in New South Wales.
55. [55]
    In the present case, the applicant commenced each working day at Pottsville where he collected the truck he was to drive.  He returned to Pottsville at the end of each working day.  The terms of the applicant’s employment stated that he was to perform his duties at Pottsville, or elsewhere as reasonably directed by Shackell Transport.  The applicant made deliveries in New South Wales.  The applicant’s work in New South Wales was customary, common and frequent.  It was certainly not unusual for the applicant to work in New South Wales because that is where he started and finished each working day.
56. [56]
    In view of the applicant’s brief period of employment with Shackell Transport from 8 April 2019 to 1 July 2019 it is difficult to attach any significance to any change in his driving patterns to predominantly Queensland-based trips.  The applicant’s last three days driving for Shackell Transport were on 10, 11 and 12 June 2019.  On 10 June 2019, the applicant delivered stone slabs to Yatala and Brendale in Queensland.  He spent most of his workday in Queensland.^[48]  On 11 June 2019 the applicant collected a semitrailer from the depot at Pottsville and then drove to Kyogle, New South Wales where he collected a load of timber.  He delivered the timber to the port of Brisbane in Queensland and then returned to the depot at Pottsville.  The applicant worked for 10 hours and travelled 460 kilometres.  He estimated that he spent five hours of his workday in New South Wales and the remaining five hours in Queensland.^[49]  On 12 June 2019 the applicant collected the semitrailer from the depot and drove to Murwillumbah in New South Wales, where he delivered large concrete pots. He then travelled to Rocklea in Queensland, where he delivered stone slabs.  He then travelled to Yatala in Queensland, where he delivered stone slabs before returning to the depot.  The applicant worked for 7.5 hours and travelled 285 kilometres.  He estimated that he spent 1.5 hours of his workday in New South Wales and the remaining 6.5 hours in Queensland.^[50]
57. [57]
    The applicant’s reliance on his obligation to abide by Queensland regulatory provisions seems to have been based entirely on the fact that he was required to comply with Queensland traffic regulations while driving on Queensland roads.  However, the applicant would have been required to comply with New South Wales road rules when driving in that State.  This factor has no bearing on whether the applicant usually worked in Queensland.
58. [58]
    Mr Green also submitted that the applicant “understood his leave in accordance with (Queensland) provisions.”^[51]  This point was not developed in Mr Green’s oral submissions and no reference was made to the applicant’s terms of employment which stated that his leave was in accordance with the MA000038 award and the National Employment Standards.^[52]  In any event, during the applicant’s period of employment there was a New South Wales public holiday for the Queen’s Birthday on 10 June 2019, for which he was paid for a public holiday.^[53]
59. [59]
    The applicant’s work history with Shackell Transport and their mutual intention, support the conclusion that the applicant usually worked in Queensland and usually worked in New South Wales.^[54]
60. [60]
    Because there was no one State where the applicant usually worked it is necessary to consider where he was “usually based”.^[55]
61. [61]
    Mr Green submitted that the applicant was usually based in Queensland for the purposes of his employment with Shackell Transport based on the considerations already referred to, and the fact that he received text messages for the next days deliveries when he was at home at Elanora in Queensland.  However, the applicant said in his affidavit:

“24. Typically, I received the text message from Mark Cotelli in the late afternoon or early evening.  I was often driving home from work or already at home at this time when the text came through.”^[56]

62. [62]
    The applicant’s evidence does not establish that he was always at home in Queensland when he received instructions about the following days deliveries.
63. [63]
    In my conclusion, the place where the applicant turned up for work each day at Pottsville was his usual base.  That is where he collected the truck he was to drive and where he returned after each workday. 

Conclusion and orders

64. [64]
    The applicant sought a declaration that his employment for the purposes of his application for compensation and any claim for common law damages was, in accordance with s 113 WCRA, connected with the State of Queensland.  I have concluded that the applicant usually worked in Queensland and in New South Wales.  Because no one State was the State where he usually worked in his employment with Shackell Transport, it is necessary to decide where he was usually based.  In my conclusion, the applicant was usually based in New South Wales for the purposes of his employment with Shackell Transport.
65. [65]
    Therefore, the applicant has no entitlement to common law damages in Queensland and WorkCover is not obliged to indemnify for any liability arising out of his notice of claim for damages.
66. [66]
    Accordingly, the originating application must be dismissed. 
67. [67]
    Both counsel indicated that they wished to consider whether costs could be ordered in view of s 318C WCRA, which precludes an order for costs for an interlocutory application unless the court is satisfied that the application is based on unreasonable delay.  If necessary, I will hear the parties on the issue of costs.