The issue raised was one of choice of law. The plaintiff was a resident of Victoria and working in Perth. The plaintiff argued the law of Victoria governed the proceedings (because the WA limitation provision excluded his claim).
Supreme Court of Victoria – Ginnane J
53 In order to answer the two questions referred for determination, the Court must construe the choice of law provisions contained in the uniform legislation as enacted in Victoria and Western Australia, particularly ss 129MB(1) and 129MB(2) of the Victorian Act and ss 93AB(1) and 93AB(2) of the Western Australian Act. Whilst both parties referred the Court to extrinsic material, in particular the Explanatory Memoranda of the legislation, the first task is to determine the plain meaning of the words used in the sections. The following statements by the High Court indicate the connection for the purposes of statutory interpretation of the text of the legislation and the context and purpose of the legislation. They establish that the text must be considered in its context.
54 In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ stated:
Ordinarily, that meaning (the legal meaning) [of a statutory provision] will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
55 In CIC Insurance Ltd v Bankstown Football Club Ltd, Brennan CJ, Dawson, Toohey and Gummow JJ stated:
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
56 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), Hayne, Heydon, Crennan and Kiefel JJ stated:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
57 In Thiess v Collector of Customs, French CJ, Hayne, Kiefel, Gageler and Keane JJ stated:
Statutory construction involves attribution of meaning to statutory text. As recently reiterated:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.
Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that ‘the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation’ is in that respect a particular statutory reflection of a general systemic principle. For:
it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
58 The context of the uniform legislation was the recognition by government of the need to address problems arising from cross-border employment. The purpose of the statutory choice of law rules is to enable determination of the substantive law to govern injury claims by workers occurring in a jurisdiction other than their home jurisdiction. The legislation is intended to provide uniformity and harmony concerning choice of law rules. Giving effect to that objective is important.
59 The choice of law provisions contained in the uniform legislation determine the substantive law to be applied where a worker is entitled to compensation in respect of an injury under the statutory workers compensation scheme of a State. The legislation provides that the substantive law of the State, which includes limitation provisions, governs whether or not a claim for damages in respect of the injury can be made and, if it can be made, the determination of the claim.
60 The provisions, which have been the subject of debate in this case, s 129MB and s 93AB, specify the claims to which the choice of law divisions contained in the uniform law provisions apply. If the worker’s claim does not come within the statutory choice of law divisions, then the statutory choice of law rules in s 129MA of the Victorian Act and s 93AA of the Western Australian Act do not apply to it.
61 The first effect of the statutory choice of law divisions is to specify the applicable substantive law which governs certain claims for damages in respect of work injuries. More particularly, the divisions have that effect ‘if there is an entitlement to compensation under the statutory workers compensation scheme of a State’. The remaining subsections of s 129MB and s 93AB clarify the intended application of this principle.
62 Sections 129MB and 93AB specify the claims to which the divisions apply. Their first subsections specify claims brought against a worker’s employer. Their second subsections apply to claims brought against persons other than a worker’s employer and apply to only some such claims. It is unclear why the word ‘only’ is contained in s 129MB(1) but not in s 93AB(1). It is difficult to give it any relevant meaning. The word ‘only’ does not mean that s 129MB(1) contains the only circumstances in which the section applies, because the next subsection extends it to other claims, that is those against non-employers.
63 I accept the submission of Safe Labour Hire and GCS that the words of ss 129MB(1) and 129MB(2), and ss 93AB(1) and 93AB(2), distinguish between claims made against an employer and claims made against persons other than employers. This is apparent in s 129MB(1) which states that the Victorian Act’s choice of law division ‘applies only to a claim … brought against a worker’s employer’ where the injury was caused by the negligence or other tort of the worker’s employer or a breach of contract by the worker’s employer. Section 129MB(2) extends the application of the Victorian Act’s choice of law division to ‘a claim … brought against a person other than a worker’s employer’ where two preconditions are met: the worker’s employment is connected with Victoria and the negligence or other tort or breach of contract on which the claim is founded occurred in Victoria.
64 I consider that there is no ambiguity in the wording used in either the Victorian or Western Australian provisions. The legislation identifies the ‘worker’s employer’ and ‘a person other than a worker’s employer’ as two separate classes. Section 129MB(1) applies to employers and employers alone. Section 129MB(2) applies to persons other than employers and only to such persons.
65 The plaintiff’s submission requires adding the word ‘only’ to the text of s 129MB(2). While words can be implied or inserted into a statute where there is a clear necessity, no necessity exists in this case. To adopt the plaintiff’s interpretation of the provisions would broaden the scope of s 129MB(1) and s 93AB(1) so that they include a class of person to whom different claim preconditions expressly apply under s 129MB(2) and s 93AB(2). Such an interpretation would remove the distinction the legislatures have drawn between an employer and a person other than an employer. I do not consider that to be permissible.
66 I do not read the Explanatory Memoranda of the Victorian Act and Western Australian Act as supporting the plaintiff’s interpretation of the choice of law rules. Rather, they suggest that the legislation is primarily directed at claims against employers.
67 I accept the plaintiff’s submission that the objective of the uniform legislation is to ensure harmony and consistency in respect of claims by cross-border employees by a national workers compensation ‘scheme’. But the text of the legislation indicates that the choice of law provisions apply only to some, and not all, workers’ claims made against non-employers. I accept that one approach available to Parliament would have been to enact legislation that had the effect that when a claim against an employer is connected to a State, then claims against non-employers are also governed by the laws of that State. That would have the benefit of enabling all claims arising from one injury to be dealt with in the same proceeding. However, I do not consider that the choice of law provisions of the Victorian and Western Australian legislation have that purpose or that effect.
68 There is no basis for concluding that s 93AB(2) and s 129MB(2) only apply when no claim is brought against the employer. The legislative scheme is primarily directed at the choice of the law that applies to claims by the worker against the employer. The statutory choice of law rules only apply to claims against other persons in the circumstances specified in s 129MB(2) and s 93AB(2).
69 The County Court’s determination made under s 80 of the Victorian Act is sufficient to establish Mr Di Paolo’s entitlement under s 129MA(1) to have his claim against his employer heard under the substantive law of Victoria. That determination of connection also satisfies one of the two s 129MB(2) choice of law preconditions relevant to Mr Di Paolo’s claim against Safe Labour Hire and GCS, who are persons other than his employer. However, it does not satisfy the second precondition. The alleged negligence or breach of contract did not occur in Victoria. Therefore, the claims against Safe Labour Hire and GCS do not fall within the scope of s 129MB(2). The Victorian statutory choice of law provisions therefore do not apply to the claims against Safe Labour Hire and GCS: s 129MA(1).
70 Nor do the Western Australian choice of law provisions apply to Mr Di Paolo’s claims against the second and third defendants. Mr Di Paolo’s claims against Safe Labour Hire and GCS satisfy one of the two s 93AB(2) choice of law preconditions, as the alleged negligence occurred in Western Australia. But the other precondition that the employment be connected with that State is not satisfied. Therefore, the claims against Safe Labour Hire and GCS do not fall within the scope of s 93AB(2) and, therefore, the Western Australian statutory choice of law provisions do not apply to those claims.
71 The Victorian and Western Australian statutory modifications to the common law choice of law rules do not govern Mr Di Paolo’s claim against the second and third defendants.
72 Accordingly, common law choice of law principles apply in relation to Mr Di Paolo’s claims against Safe Labour Hire and GCS. The substantive common law of the place of the alleged wrong, Western Australia, including the Limitation Act 2005 (WA), governs the rights of the parties in respect of those claims.
73 As stated, s 14(1) of the Limitation Act 2005 (WA) provides that an action for damages relating to a personal injury by a person cannot be commenced if three years have elapsed since the cause of action accrued.
74 I propose to answer the two questions as follows:
- Is the Plaintiff’s claim for damages in respect of injury against the Second Defendant and Third Defendant governed by the substantive law (including applicable limitation periods) of-
(a) the State of Western Australia? Answer: yes.
(b) the State of Victoria? Answer: no.
David Cormack – Brisbane Barrister & Mediator