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Di Paolo v Salta Constructions Pty Ltd & Ors [2015] VSCA 230 (4 September 2015)

Last Updated: 4 September 2015

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0019

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CHOICE OF LAW – Worker normally based in Victoria injured in Western Australia while on temporary assignment in that State – Determination made under s 91A of Accident Compensation Act 1985 that worker’s employment connected with Victoria – Proceeding commenced in Victoria by worker four years after the injury against Victorian-based employer and two Western Australian non-employers who had no connection with Victoria — Substantive law of Victoria relevantly includes six year limitation period whereas substantive law of Western Australia relevantly includes three year limitation period – Substantive law of Victoria applies to claim against employer – Whether substantive law of Victoria or that of Western Australia applies to claims against non-employers – Substantive law of Western Australia applies if common law choice of law rules applicable.

STATUTORY INTERPRETATION — Scope of modifications to common law choice of law rules effected by s 129MB of Accident Compensation Act 1985 and s 93AB of Workers’ Compensation and Injury Management Act 1981 (WA) — Fact that claim against employer is governed by the statutory modifications to common law choice of law rules does not mean that those modifications also apply to claims against non-employers — Accident Compensation Act 1985 ss 80, 91A, 91C, 129MA, 129MB, 129ME — Workers’ Compensation and Injury Management Act 1981 (WA) ss 20, 23B, 23D, 93AA, 93AB, 93AE – Application for leave to appeal granted and appeal dismissed.

STATUTORY INTERPRETATION — Principles of statutory interpretation — Primacy of the text of statute — Purposive approach — Extrinsic material — Circumstances in which court can reject an interpretation of a statutory provision which is said to create inconvenience and difficulties — Circumstances in which the word ‘and’ is capable of having a disjunctive meaning.

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OSBORN JA

KYROU JA:

Introduction and summary

1 On 11 August 2009, the applicant fell and was seriously injured on a construction site in Perth. He was then employed by the first respondent, Salta Constructions Pty Ltd (‘Salta’), a construction company based in Melbourne, and was working temporarily in Perth in the course of his employment with Salta. According to the applicant, the accident occurred when, while working on a construction site, aluminium access stairs dislodged from modular scaffolding and collapsed beneath him, causing him to fall to the ground.

2 Initially, the applicant received payments under the Workers’ Compensation and Injury Management Act 1981 (WA) (‘WA Act’) from Salta’s Western Australian workers compensation insurer. Those payments ceased and were replaced by payments under the Accident Compensation Act 1985 (‘AC Act’) from Salta’s Victorian workers compensation insurer with effect from 15 January 2010.

3 On 4 December 2009, the applicant commenced a proceeding against the Victorian WorkCover Authority (‘VWA’) in the County Court seeking a determination pursuant to s 91A of the AC Act that, at the time of the accident, his employment with Salta was connected with Victoria in accordance with s 80 of the AC Act. The County Court made that determination by consent in an order dated 16 September 2010.

4 On 7 March 2013, the VWA determined that the applicant had suffered a serious injury which entitled him to commence a proceeding for damages pursuant to s 134AB of the AC Act. The applicant commenced such a proceeding in the Trial Division of the Supreme Court on 5 August 2013. The proceeding was against Salta, the second respondent, Safe Labour Hire Pty Ltd (‘Safe Labour’), and the third respondent, GCS Rapid Access Pty Ltd (‘GCS’). In the proceeding, the applicant alleged that GCS supplied, and Safe Labour erected, the modular scaffolding and aluminium stairs at the construction site, and that his injuries were caused by the negligence of all of the respondents.

5 In the proceeding in the Trial Division, it was not in dispute that the substantive law of Victoria applied to the applicant’s claim against Salta. However, there was disagreement as to whether that law applied to his claims against Safe Labour and GCS. Those companies have their registered offices and carry on business solely in Western Australia. Moreover, the alleged torts occurred in that State.

6 In their defences, Safe Labour and GCS pleaded that the substantive law of Western Australia — which includes s 14(1) of the Limitation Act 2005 (WA) — governs the applicant’s claims against them. They pleaded that, as that section stipulates a limitation period of three years for the commencement of proceedings for personal injuries, the applicant’s claims against them were statute barred.

7 The applicant sought to strike out the parts of the defences of Safe Labour and GCS which alleged that his claims were statute barred, on the basis that the substantive law of Victoria — which stipulates a six year limitation period for actions for damages under pt IV of the AC Act[1] — applies to his claims against all of the respondents.

8 An order was made pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 that two questions be determined before the substantive trial (‘Preliminary Questions’). The Preliminary Questions, and the answers provided by the trial judge on 12 February 2015, are as follows:

1. Is the [applicant’s] claim for damages in respect of injury against [Safe Labour] and [GCS] 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.

2. If the answer to Question A[(a)] is Yes, does the substantive law of Western Australia (including applicable limitation periods) apply to the [applicant’s] claim for damages against [Safe Labour] and [GCS]:

(a) unmodified by Division 1a of Part IV of the [WA Act] such that the common law choice of law rules apply without statutory restriction to the [applicant’s] claim? Answer: yes.

(b) as modified by Division 1a such that these common law rules are restricted from applying to the [applicant’s] claim? Answer: no.^[2]

9 The effect of the above answers was that, notwithstanding that the applicant’s claim for damages against Salta was governed by the substantive law of Victoria and was not statute barred, his claims against Safe Labour and GCS were governed by the substantive law of Western Australia and were statute barred.

10 The applicant seeks leave to appeal to this Court against the above answers on the basis that the judge misconstrued the similarly–worded choice of law provisions of the AC Act and the WA Act, namely s 129MB of the AC Act and s 93AB of the WA Act.

11 For reasons that follow, the application for leave to appeal will be granted, the appeal will be treated as having been instituted and heard at once and the appeal will be dismissed.

Agreed facts and issues not in dispute

12 At trial, the parties agreed, or asked the Court to assume, the following facts:[3]

1. On 11 August 2009 the [applicant] suffered injury (the injury), including head and spinal injury, as a result of an industrial accident (the accident) that occurred on a construction site at 226 Adelaide Terrace, Perth in the State of Western Australia.
2. The [applicant] alleges that the accident occurred when a flight of aluminium access stairs dislodged from modular scaffolding and collapsed beneath the [applicant] causing him to fall to the ground below.
3. [Salta] is and was at all relevant times a corporation with its registered office in the State of Victoria. At all relevant times [Salta] operated a construction business with its head office in Port Melbourne. At the time of his injury, the [applicant] was employed by [Salta], and was acting in the course of his employment.
4. [Safe Labour] is and was at all relevant times a corporation with its registered office in the State of Western Australia. The [applicant] alleges that [Safe Labour] erected the modular scaffold and aluminium stairs at the construction site.
5. [GCS] is and was at all relevant times a corporation with its registered office in the State of Western Australia. The [applicant] alleges that [GCS] supplied the modular scaffold and aluminium stairs to the construction site.
6. The [applicant] alleges that the injury was caused by the negligence of the [respondents]. On the assumption that the [applicant’s] injury was caused by the negligence of [Safe Labour] and [GCS], it is to be assumed in the case of each of them that the place of the wrong was within the State of Western Australia.
7. Following the accident, on or about 24 August 2009, the [applicant] made a written claim for compensation against [Salta] pursuant to s 179(1)(b) of the [WA Act].
8. QBE Insurance (Australia) Ltd (QBE) was at all relevant times the insurer of [Salta] with respect to liability for claims made under the WA Act.
9. On 17 September 2009, QBE gave notice to the [applicant] under s 57A(3)(a) of the WA Act that liability was accepted for weekly payments and medical expenses in respect of the injury. Thereafter, [Salta], either itself or by its insurer QBE, commenced to pay compensation to the [applicant] pursuant to the WA Act.
10. On or about 3 December 2009 the [applicant], by his solicitors, made a written claim against [Salta] in respect of the injury pursuant to the [AC Act].
11. CGU Worker’s Compensation (Victoria) (CGU) is and was at all relevant times the authorised agent of the [VWA] and [Salta’s] claims manager with respect to claims made under the [AC] Act.
12. By a writ filed in County Court proceeding no CI-09-05826 on 4 December 2009, the [applicant] sought a determination pursuant to s 91A of the [AC] Act that at the time of the accident the [applicant’s] employment was connected with the State of Victoria in accordance with s 80 of the [AC] Act.
13. By letter dated 29 December 2009 CGU initially rejected the [applicant’s] claim for compensation. However subsequently, by letter dated 5 January 2010, CGU accepted liability under the [AC] Act in respect of the injury conditional upon the [applicant] ceasing to receive compensation under the Western Australian claim.
14. [Salta] by its insurer QBE ceased to pay compensation to or on behalf of the [applicant] under the WA Act in respect of the Western Australian claim effective from midnight on 14 January 2010, and [Salta] by its insurer CGU commenced to pay compensation to or on behalf of the [applicant] under the [AC] Act in respect of the period commencing 12.01am on 15 January 2010.
15. Upon acceptance of liability by CGU, QBE sought reimbursement of the compensation which it had paid to the [applicant] and medical and like expenses paid on his behalf. As at 19 May 2014 QBE had received $7,230.36 of $12,205.60 by way of partial recovery from CGU.
16. On 16 September 2010, the County Court, constituted by his Honour Judge Bowman, ordered in proceeding No CI-09-05826 that, ‘by consent there is a determination that the [applicant’s] employment is connected with the State of Victoria in accordance with s 80 of the [AC] Act.’
17. On or about 5 November 2012, the [applicant] served upon [Salta] an application under s 134AB(4) of the [AC] Act to commence a proceeding for the recovery of damages.
18. On or about 7 March 2013, the [applicant] was advised by the [VWA], pursuant to s 134AB(7)(a) of the [AC] Act, that he was deemed to have a serious injury, thereby entitling him to commence a proceeding for the recovery of damages.
19. By a Writ with Statement of Claim indorsed filed on 5 August 2013, the [applicant] commenced an action for damages against the employer [Salta] and non-employer [Safe Labour] and [GCS].^[4]

13 On the appeal, the following propositions were not in dispute:

(a) Neither Safe Labour nor GCS were parties to proceeding No CI-09-05826 in which Judge Bowman made a determination by consent that the applicant’s employment was connected with Victoria in accordance with s 80 of the AC Act.[5]

(b) The applicant was entitled to compensation under the statutory workers compensation scheme of Victoria for the purposes of s 129MA(1) of the AC Act.[6] Conversely, the applicant had no entitlement to compensation under the statutory workers compensation scheme of Western Australia for the purposes of s 93AA(1) of the WA Act.[7] Accordingly, the substantive law of Victoria governed the applicant’s claim for damages against Salta.

(c) Safe Labour and GCS were both ‘person[s] other than a worker's employer’ for the purposes of s 129MB(2) of the AC Act and s 93AB(2) of the WA Act.[8]

(d) At common law, the governing law of the applicant’s claims against Safe Labour and GCS is the law of the place where the wrong was committed, namely, Western Australia. If this common law rule is unaffected by statute and applies to the applicant’s claims against Safe Labour and GCS, then the substantive law of Western Australia will govern those claims.

(e) If the substantive law of Western Australia governs the applicant’s claims against Safe Labour and GCS, those claims are statute barred.

Relevant legislation and extrinsic material

14 The choice of law provisions in the AC Act and the WA Act were inserted more than 10 years ago as part of an agreed scheme of uniform legislation involving all the States and the Australian Capital Territory.[9] The Acts that gave effect to the scheme in Victoria and Western Australia were the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 and the Workers’ Compensation and Rehabilitation Amendment (Cross Border) Act 2004 (WA). The purpose of the former Act included the following:

(vi) to provide that compensation is only payable under [the AC] Act in respect of employment connected with Victoria; and

(vii) to make provision as to the substantive law governing claims for damages in respect of injuries to workers;^[10]

15 Divisions 1 and 1A of pt IV of the AC Act (comprising ss 80 to 91D) contain provisions for determining whether Victoria is connected with a worker’s employment for the purposes of a claim for compensation under that Act. Section 80 relevantly provides as follows:

80. Entitlement to compensation only if employment connected with Victoria

(1) There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.

(2) The fact that a worker is outside this State when the injury happens does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.

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

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

(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

16 Section 91A(1) of the AC Act empowers a court to determine the State with which the worker's employment is connected in accordance with section 80 and requires that determination to be entered in the records of the court. Section 91C(1) of the AC Act provides that a determination made by a Victorian court or a court of a jurisdiction whose law corresponds with the relevant provisions of the AC Act ‘is to be recognised for the purposes of this Act as the State with which the worker’s employment is connected.’

17 Divisions 1 and 1a of pt III of the WA Act contain provisions that are similar to those in pt IV divs 1 and 1A of the AC Act. Sections 20, 23B and 23D of the WA Act are similar to ss 80, 91A and 91C of the AC Act.

18 The choice of law provisions of the AC Act are set out in pt IV div 6AB. This division is titled ‘Choice of law’ and comprises ss 129MA to 129MF. Sections 129MA and 129MB relevantly provide as follows:

129MA The applicable substantive law for work injury claims

(1) If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs —

(a) whether or not a claim for damages in respect of the injury can be made; and

(b) if it can be made, the determination of the claim.

...

(5) In this Division—

State includes Territory.

129MB Claims to which Division applies

(1) This Division applies only to a claim for damages or recovery of contribution brought against a worker’s employer in respect of an injury that was caused by—

(a) the negligence or other tort (including breach of statutory duty) of the worker’s employer; or

(b) a breach of contract by the worker’s employer.

(2) This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker’s employer in respect of an injury if—

(a) the worker’s employment is connected with Victoria; and

(b) the negligence or other tort or the breach of contract on which the claim is founded occurred in Victoria.

...

(4) A reference in this Division to a worker’s employer includes a reference to—

(a) a person who is vicariously liable for the acts of the employer; and

(b) a person for whose acts the employer is vicariously liable.

19 The equivalent provisions in the WA Act are ss 93AA and 93AB which are in pt IV div 1a of that Act. As those provisions are virtually identical to ss 129MA and 129MB of the AC Act,[11] we will not set them out.

20 Section 129ME of the AC Act and s 93AE of the WA Act define ‘substantive law’. The definitions in both Acts include statutory limitation periods and laws limiting the recoverability of damages but exclude ‘a law prescribing rules for choice of law’.

21 The explanatory memorandum to the Accident Compensation and Transport Accident Acts (Amendment) Bill 2003 included the following statements:

Part 3 amends the Accident Compensation Act 1985 to provide a new framework for coverage of workers operating temporarily in another jurisdiction as part of a nationally agreed approach to these issues.

...

Clause 21 inserts a new Division 6AB into Part IV of the Accident Compensation Act 1985 which specifies the applicable law which governs claims for damages in respect of work injuries. The clause inserts new sections 129MA to 129MF.

New section 129MA(1) establishes the basic principle underpinning these provisions which is that if there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State 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. The remaining subsections of that section clarify the intended application of this principle.

New section 129MB clarifies to which claims for damages and related claims for recovery of contribution the Division applies.^[12]

22 During the second reading speech in the Legislative Assembly of the Accident Compensation and Transport Accident Acts (Amendment) Bill 2003, which occurred on 16 October 2013, the Minister relevantly stated:

Consistent with the government’s longstanding agreement in principle to develop a framework for coverage of workers operating temporarily in another jurisdiction, Victoria agreed to pursue complementary legislation with New South Wales and Queensland following the Workplace Relations Ministers Council meeting in May 2002. Subsequent to this the other states and territories have also agreed to work toward the introduction of similar legislation.

To this end, the bill will implement cross-border arrangements for workers compensation to:

reduce the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction at the one time and to allow employers to readily determine in which jurisdiction to insure their workers;

ensure that workers working temporarily in another jurisdiction have access to workers compensation entitlements available in their ‘home’ jurisdiction (including whatever arrangements apply in relation to common law); and

provide certainty for workers as to their workers’ compensation entitlements.^[13]

23 The explanatory memorandum to the Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA) included the following statements:

1. INTRODUCTION

Employers are often required to obtain workers’ compensation coverage for an individual worker in more than one State or Territory, even if these workers are working only temporarily in another jurisdiction. The key objectives of the amendments to the [WA Act] introduced by this Bill are to:

(a) Eliminate the need for employers to obtain workers’ compensation coverage for a worker in more than one jurisdiction and ensure each worker is connected to one jurisdiction.

(b) Ensure workers’ working temporarily in another jurisdiction only have access to the workers’ compensation entitlements and common law provisions in their home State or Territory, or ‘State of connection’, which is the term used in the Bill.

(c) Provide greater certainty for injured workers as to the State or Territory in which to make a workers’ compensation claim and what the associated entitlements are.

(d) Allow employers to determine in which jurisdiction to insure each of their workers, before the worker commences work.

(e) Allow a court to determine the ‘State of connection’ and have that determination recognised by other courts in other jurisdictions, so only one determination is made.

2. Background

National principles were endorsed by the Heads of Workers’ Compensation Authorities (HWCA) in July 2003, which cleared the way for Western Australia and all other States and Territories to progress cross border related amendments to their legislation, to ensure national coverage of the cross border workers’ compensation principles. The nationally agreed principles are reflected in the key objectives of the amendments.

The tests for establishing the home ‘State of connection’ are set out in proposed section 20 (Compensation not payable unless worker’s employment connected with this State). If a home jurisdiction cannot be established by the first test, that is, where is the usual place of employment, the second test — where the worker is usually based — will be applied.

If applying the first two tests identifies no State or Territory, the final test, being the employer’s principal place of business in Australia, is applied. If no ‘State of connection’ can be determined for an injured worker and the worker is not entitled to compensation for the same matter, under the laws of a place outside Australia, the worker’s employment is deemed to be connected with the jurisdiction the worker is in when their injury occurred.

While the series of tests to help establish ‘State of connection’ represent the cornerstone for achieving the key objectives it is also important to ensure that:

(i) There is no fallback to any other jurisdiction (except in the circumstances outlined in (vi) below).

(ii) The determination of the ‘home’ jurisdiction will not be affected by the worker undertaking a temporary period of work for the same employer for a period up to and including six months in another State or Territory.

(iii) The benefits of the ‘home’ jurisdiction will apply to a worker temporarily working in another State or Territory for the period of work up to and including six months.

(iv) When six months has expired, the intention of the employer and the worker as to the temporary nature of the work in the other jurisdiction must be reviewed.

...

(vi) In relation to common law access:

• A claim in tort in respect of a work-related personal injury suffered by a worker is to be determined in accordance with the substantive law of the State or Territory with which the workers’ employment is connected (as determined by the tests in section 20 above) at the time of the injury.
• The relevant rules will apply to actions taken against an employer or a person for whom the employer may be vicariously liable.
• Courts will apply the substantive law of the ‘home’ jurisdiction which under the amendments is the substantive law governing—

(a) Whether or not a claim for damages in respect of the injury can be made; and

(b) If it can be made, the determination of the claim.

...

7. Section 15 is repealed. It will be replaced and extended by sections 20 and 23 to ensure compensation is only payable in relation to employment connected with Western Australia and to ensure a person is not compensated twice.

...

10. Section 20 provides greater certainty in connecting a worker with a ‘State’ and the entitlements to compensation under that State’s Act.

...

23. The nationally adopted model for choice of law requires the court in which the application is made to determine the ‘State of connection’ and courts in all jurisdictions are to recognise and support a determination made in another jurisdiction. Division 1a outlines procedures for the courts to determine the State connected with the worker’s employment. This determination is to be recognised by courts in all other jurisdictions, so further determinations cannot be applied for. A determination can be appealed and amended and recognised by the State of connection.

...

Division 1a — Choice of law

34. The model adopted by all Australian workers’ compensation jurisdictions for choice of laws to determine ‘State of connection’, requires the court in which the application is made to determine the ‘State of connection’. The model also requires courts in all jurisdictions recognise and support a determination made in another State or Territory ...
35. Two main benefits of the choice of laws model are:
    • The court in the jurisdiction in which the application is made makes the determination of whether that State or Territory was the State or Territory connected with the worker’s employment. This determination is to be recognised by other State and Territory courts and so is made only once.
    • The laws of the ‘State of connection’ will determine all questions relating to the claim, including whether or not the claimant was a worker for the purposes of that law.
36. A further aim of the choice of law model is to ensure common law damages claims and statutory compensation claims arising out of a work related injury are both able to be dealt with under the law of the same jurisdiction.
37. Section 93AA(1) stipulates that if a worker is entitled to compensation under a State or Territory statutory workers’ compensation scheme, the substantive law of the State or Territory [of connection] governs whether or not a claim for damages can be made and what the determination of the claim is. This ensures workers can only pursue common law claims in the ‘State of connection’, which provides certainty and consistency.

...

41. Section 93AB(1) explains Division 1a relates to a worker’s claim for common law damages against the employer for a disability caused by negligence or other tort of the worker’s employer, or a breach of contract by the worker’s employer.
42. Section 93AB(2) specifies Division 1a also applies to a common law claim or the recovery of contribution brought against a person other than a workers’ employer if the worker’s employment is connected with Western Australia and the negligence or other tort or the breach of contract on which the claim is based occurred in Western Australia.^[14]

Decision of the trial judge

24 As set out at [8] above, the judge decided that the applicant’s claims for damages against Safe Labour and GCS were governed by the substantive law of Western Australia and that the Western Australian choice of law rules that applied were those of the common law unmodified by pt IV div 1a of the WA Act. The judge’s reasons were as follows:

[T]he 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 [AC] 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 [AC] 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.

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.

The [applicant’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 [applicant’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.

I do not read the Explanatory Memoranda of the [AC] Act and [WA] Act as supporting the [applicant’s] interpretation of the choice of law rules. Rather, they suggest that the legislation is primarily directed at claims against employers.

I accept the [applicant’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.

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).^[15]

Proposed grounds of appeal

25 The applicant’s application for leave to appeal relies on the following proposed grounds of appeal:

1. The learned trial judge erred in his interpretation of the Statute[s] by failing to give sufficient weight to the context in which the words of s 129MA and s 129MB of the [AC Act], and s 93AB(1) and (2) of the [WA Act] appear. In particular he did not give adequate weight to:

(a) The purpose of the Statutes;

(b) The mischief which the Statutes intended to remedy;

(c) The inconvenience and difficulty in applying two quite different schemes of workers compensation (and common law damages awards) to determine the one claim for damages;

(d) The intent of enacting the legislation expressed by the Parliaments of Victoria and Western Australia in their explanatory memoranda.

2. The learned trial judge failed to give due weight to the differences in the two schemes of workers compensation (including the common law as modified by statute) of Western Australia and Victoria. Each scheme is designed to have a set of laws in which workers compensation statutory benefits and common law damages awards operate harmoniously but the Western Australian scheme is very significantly different to the Victorian scheme and the laws of each scheme are not consistent and cannot be made to operate harmoniously.

Principles of statutory interpretation

26 A review of recent High Court authorities indicates that, while the Court has on a number of occasions in the past adopted the purposive approach to statutory interpretation, it has more recently given renewed emphasis to the primacy of the text of the provision under consideration.

27 A number of decisions of the High Court have adopted a purposive approach to statutory construction which encompasses reference to extrinsic materials. For example, in CIC Insurance Ltd v Bankstown Football Club Ltd,[16] the High Court stated that, apart from any reliance on legislative provisions enshrining the purposive approach to statutory interpretation, a court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. The Court referred to the ‘modern approach to statutory interpretation’, which it stated: (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, one may discern the statute was intended to remedy.[17]

28 In Project Blue Sky Inc v Australian Broadcasting Authority,[18] the majority[19] stated that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. They stated that the meaning of a statutory provision must be determined by reference to the language of the statute viewed as a whole. Thus, according to the majority, ‘the process of construction must always begin by examining the context of the provision that is being construed’.[20]

29 The majority later stated:

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) 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.^[21]

30 The majority also adopted the reasoning of Francis Bennion in Statutory Interpretation, who relevantly stated:

[T]here needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.^[22]

31 Extrinsic materials, including explanatory memoranda and second reading speeches, have been consulted on a number of occasions as part of the exercise of statutory construction. For example, in Newcastle City Council v GIO General Ltd,[23] Toohey, Gaudron and Gummow JJ stated that, in interpreting s 40 of the Insurance Contracts Act 1984 (Cth), reference may be made to the explanatory memorandum to the Insurance Contracts Bill 1984 which was said to disclose the particular mischiefs which the relevant section was designed to remedy.[24] More recently, in Minister for Immigration and Citizenship v SZJGV,[25] French CJ and Bell J relied on the second reading speech of the Migration Legislation Amendment Bill (No 6) 2001 (Cth) and Crennan and Kiefel JJ relied on both the second reading speech of, and the explanatory memorandum to, that bill in construing a statutory provision inserted by the bill.[26]

32 It has been observed that, in a number of recent judgments, the High Court appears to have given greater primacy to the actual language used in the text than to contextual matters.[27] For example, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[28] 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.^[29]

33 In that case, the High Court considered the approach of the Northern Territory Court of Appeal to the construction of a provision of the Taxation (Administration) Act (NT). French CJ stated that the Court of Appeal had construed that statute by reference to an imputed legislative intention reflecting a revenue-maximising approach to taxing statutes which paid insufficient regard to the statute’s clear words.[30] Hayne, Heydon, Crennan and Kiefel JJ stated that fixing upon the general purpose of a particular statute carried with it the danger that the text did not receive the attention it deserved.[31]

34 In Saeed v Minister for Immigration and Citizenship,[32] the High Court considered whether a section of the Migration Act 1958 (Cth), inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), had the effect of excluding the hearing rule of natural justice with respect to the obligations of the Minister when dealing with applications by a non-citizen for a visa. Both the explanatory memorandum to the amending legislation and its second reading speech made it plain that the terms of the section were intended to overcome a previous High Court decision in which the majority held that the exclusion of the requirements of natural justice required a clear expression of intention and that no such expression was present in the Migration Act 1958 (Cth).[33]

35 French CJ, Gummow, Hayne, Crennan and Kiefel JJ stressed that, insofar as legislative ‘intention’ was to be ascertained, what was involved was an inquiry into the intention manifested by the legislation. Accordingly, they held that statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, could not overcome the need to carefully consider the words of the statute to ascertain its meaning.[34]

36 French CJ, Gummow, Hayne, Crennan and Kiefel JJ also stated that it was ‘erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction’.[35] While they accepted that resort to extrinsic materials may be warranted to ascertain the context and objective of a statutory provision, they warned that any such objective could not be equated with the statutory intention as revealed by the terms of the statute. Accordingly, the question of whether the relevant section of the Migration Act 1958 (Cth) had the effect of excluding the hearing rule of natural justice was to be answered by having regard, in the first place, to the text of that section and the provisions with which it interacted.[36]

37 Similar sentiments were expressed by the majority[37] of the High Court in Baini v The Queen,[38] who stated:

As the Court said in Fleming v The Queen, ‘[t]he fundamental point is that close attention must be paid to the language’ of the relevant provision because ‘[t]here is no substitute for giving attention to the precise terms’ in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text.^[39]

38 Similarly, in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[40] the High Court, citing Alcan, stated:

‘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. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.^[41]

39 The above statement was endorsed by the High Court in Thiess v Collector of Customs.[42]

40 Although it is clear that, in accordance with s 35 of the Interpretation of Legislation Act 1984, a court should prefer a construction of a statutory provision that would promote the purpose or object underlying that statute to one that would not promote that purpose or object, a number of authorities have warned of the risks associated with the application of this general rule of interpretation. As noted by Gleeson CJ in Carr v Western Australia:[43]

Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.^[44]

41 Gleeson CJ went on to state that, ultimately, it was the text of the statute, construed according to such principles of interpretation as provided rational assistance in the circumstances of the particular case, that was controlling.[45] Gleeson CJ’s reasons were subsequently endorsed by the High Court in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd.[46]

42 Similarly, in Masters v McCubbery,[47] Winneke P stated:

Resort to [s 35 of the Interpretation of Legislation Act 1984] has become almost common place as parties strive to find support for the proposition which they seek to make. In my view the court needs to be careful not to permit recourse to this section to undermine its primary function of seeking to ascertain the intention of the legislation from the content of the Act itself.^[48]

43 A related issue that arises is whether, in construing a statutory provision, a court is justified in reading that provision as though it contains additional words or omitted words.

44 In Taylor v Owners – Strata Plan No 11564,[49] the majority[50] of the High Court stated that the answer to this question involved a judgment of matters of degree. That judgment would be readily answered in favour of the addition or omission of words in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. However, the judgment would be answered against a construction that filled gaps disclosed in the statute or made an insertion which was ‘too big, or too much at variance with the language in fact used by the legislature’.[51] The majority adopted the reasoning of McHugh J in Newcastle, stating that ‘[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances’.[52] Finally, they observed that a purposive interpretation that required too great a departure from the statutory text may violate the separation of powers in the Constitution.[53]

45 Another related question is the extent to which a court may adopt a construction so as to avoid an absurd, unreasonable or anomalous consequence. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation,[54] Mason and Wilson JJ stated that, when a judge labels the operation of a statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he or she assigns a ground for concluding that the Parliament could not have intended a statute to operate in a particular way, and that an alternative interpretation must be preferred.[55] They also stated that a court may depart from a literal interpretation of a provision where the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.[56]

46 Similarly, in CIC, the High Court stated that inconvenience or improbability of result may assist the court in preferring an alternative construction of a statute to its literal construction where the former is reasonably open and more closely conforms with the legislative intent.[57]

47 There is also some support in the authorities for the proposition that courts will construe statutes so as to avoid unjust outcomes[58] or so as to impose less hardship on a subject[59] where such a construction is available.

48 However, especially when different views can be held about whether a particular consequence is anomalous on the one hand or acceptable or understandable on the other, the court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the Parliament.[60] Similarly, any anomaly must be a very serious one before a court will be justified in using it as a reason for rejecting what otherwise seems to be the correct construction of a statute. If courts act otherwise, they risk taking over the function of making policy choices which properly belongs to the legislature.[61] Caution should therefore be exercised before relying on anomalous results to reject what otherwise appears to be the correct construction of the statute.[62]

49 A final question of statutory interpretation that arises in this application is whether the word ‘and’ can be read disjunctively.

50 The ordinary meaning of ‘and’ is conjunctive.[63] However, in a number of cases, ‘and’ has been read disjunctively.[64]

51 In Re Licensing Ordinance,[65] Blackburn J set out two categories of cases in which ‘and’ had been read disjunctively. The first category consisted of cases where, if ‘and’ was given its natural meaning, the result would be so extraordinary that in order to make sense of the provision, the court would be obliged to read the word ‘and’ as if it had been ‘or’.[66] The cases contained in this category have subsequently been described as those in which the court may be persuaded that the Parliament simply made a mistake and the wrong conjunction was used.[67]

52 The second category consisted of cases in which there was a list of items, the items being joined by ‘and’ but the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word ‘and’, which was used to join the items in the list, would be truly cumulative in that it linked the members of a class and its function was to indicate that the whole class was to be considered together. An example of this would be the wording of a statutory definition that provided that ‘motor vehicle includes motor cycles, tractors and trailers’. In this example, ‘and’ would have a cumulative meaning but dispersive effect would be given by the word ‘includes’.[68]

53 Where the courts have adopted a disjunctive interpretation of ‘and’, this has been governed by the context in which the word appeared.[69] One relevant contextual factor that will favour an interpretation of ‘and’ as conjunctive is if the statute employs the word ‘or’ when it desires to convey a disjunctive meaning.[70]

Parties’ submissions

54 Although Salta filed a notice of intention not to contest the application for leave to appeal, it appeared at the hearing of the application and made submissions to assist the Court.

55 GCS broadly adopted the submissions made by Safe Labour. Accordingly, with one exception, we will not make any separate reference to GCS’s submissions.

56 The parties’ submissions covered s 129MB of the AC Act as well as s 93AB of the WA Act. As the sections are very similar and the submissions overlapped, we will focus on the submissions relating to the Victorian legislation.

Submissions on the language of s 129MB of the AC Act

57 The applicant submitted that, on its proper construction, s 129MB(1) of the AC Act applied to all parties to a common law proceeding provided that one of the parties was an employer against whom a claim was made which satisfied the requirements of that section. Accordingly, in the present case, where the applicant had brought a claim for damages against both his employer (Salta) and two non-employers (Safe Labour and GCS), s 129MB(1) of the AC Act was satisfied in respect of his claim against Salta and thus pt IV div 6AB of the AC Act was said to apply to his claims against Salta, Safe Labour and GCS. This was said to mean that, pursuant to s 129MA(1) of the AC Act, the substantive law of Victoria governed the determination of the applicant’s claims against all three entities.

58 During oral argument, the Bench observed that Salta had made claims for contribution against Safe Labour and GCS and enquired as to whether, and if so, how, Salta said that s 129MB was engaged by those claims. Salta submitted that its contribution claims engaged s 129MB(2) because the word ‘and’, which separated s 129MB(2)(a) from s 129MB(2)(b), was intended to be read disjunctively. On Salta’s reading, s 129MB(2)(a) and (b) constituted a catalogue of two circumstances which independently engaged s 129MB(2). In support of this proposition, Salta drew the Court’s attention to s 129MB(4), in which the word ‘and’ operated disjunctively in respect of s 129MB(4)(a) and s 129MB(4)(b).

59 In the alternative, Salta submitted that, under common law choice of law principles relating to restitution, which were articulated in Sweedman v Transport Accident Commission,[71] Victoria was the place of the closest connection to Salta’s claim for restitution against Safe Labour and GCS. Salta conceded that this argument was not made in the proceeding below.

60 The applicant did not agree with Salta’s submission that the word ‘and’ in s 129MB(2) should be read disjunctively.

61 Safe Labour submitted that, properly construed, s 129MB(2), as opposed to s 129MB(1), governed a worker’s common law claim for damages against a non-employer irrespective of whether the proceeding in which the worker made that claim was confined to that claim or also included a claim against an employer. According to Safe Labour, s 129MB(2) imposed two cumulative preconditions that a worker would need to meet to enliven pt IV div 6AB of the AC Act for a claim against a non-employer: first, a worker’s employment must be connected with Victoria (s 129MB(2)(a)); and, secondly, the tort or breach of contract upon which the worker’s claim was based would also have to have occurred in Victoria (s 129MB(2)(b)). In the present case, as the alleged negligence upon which the applicant’s claims against Safe Labour and GCS were founded occurred in Western Australia, the applicant was unable to satisfy the second precondition and, consequently, those claims were not governed by pt IV div 6AB of the AC Act.

62 Safe Labour further observed that, if the purpose of the amending legislation giving effect to the uniform cross-border scheme (‘cross border legislation’) was to enable the legislation of a particular State to apply to all common law claims brought against an employer and non-employers, it would have been easy to have framed the cross-border legislation in those terms. Instead, according to Safe Labour, the cross-border legislation adopted words with the opposite meaning and effect.

63 Safe Labour contended that the applicant’s construction of s 129MB would impermissibly require the text of that provision to be read as though it contained two modifications.

64 First, Safe Labour submitted that s 129MB(1) would need to be read as if it contained the additional words ‘whether or not the claim is also brought against a person other than the employer’ after the first reference to 'employer'. According to Safe Labour, this construction was impermissible because it required an insertion that was ‘too big, or too much at variance with the language in fact used by the legislature’.[72]

65 Secondly, Safe Labour contended that s 129MB(2) would need to be read as if it contained the additional word ‘only’ after the word ‘brought’. According to Safe Labour, this in turn would render the word ‘also’ in the expression ‘[t]his Division also applies’ in s 129MB(2) redundant. According to Safe Labour, the use of the word ‘also’ was entirely consistent with the meaning that, if a worker’s claim against an employer ‘also’ included a non-employer, pt IV div 6AB would apply subject to the two requirements in s 129MB(2)(a) and (b) of the AC Act.

66 According to Safe Labour, the above modifications exceeded the proper bounds of statutory construction having regard to the plain words of the provision and the clear distinction made by the legislature between ‘employer’ (as referred to in s 129MB(1)) and ‘a person other than a worker's employer’ (as referred to in s 129MB(2)). Safe Labour noted that, in contrast to s 129MB, s 129MA contained the wide expression ‘a claim for damages in respect of the injury’ but did not specify whether the person against whom the claim was made must be an employer or a non-employer defendant. This was said to demonstrate that the identity and characterisation of the ‘class of person’ to whom s 129MB(2) applied was critical to the application of that provision.

67 Safe Labour argued that the applicant’s construction of s 129MB(2) of the AC Act confined the operation of that provision to the rare case in which a worker chose to sue only a negligent non-employer tortfeasor and not his or her employer, despite the employer having a non-delegable duty to provide the worker with a safe system of work. According to Safe Labour, it was not possible to discern any intention of the legislature to insert s 129MB(2) for this limited purpose.

68 Safe Labour contended that Salta’s construction of s 129MB(2) was erroneous for two reasons. First, it contended that, if the legislature had intended the word ‘and’ in s 129MB(2)(a) to have a disjunctive effect, it would have used the word ‘or’ instead. Secondly, it contended that Salta’s construction would enable a worker to bring claims against a non-employer in different States, which in turn would render the uniform cross-border scheme impractical and undermine its objective of providing for uniformity in respect of such claims.

69 During oral argument, the applicant made the following submissions in response to the submissions of Safe Labour:

(a) The applicant observed that, by s 129MB(1), pt IV div 6AB would apply to a ‘claim for ... recovery of contribution’. According to the applicant, this demonstrated that s 129MB(1) addressed situations where more than one party was sued. On this basis, the applicant contended that, insofar as Safe Labour submitted that s 129MB(1) should be construed as applying to claims solely against an employer, that submission should be rejected.

(b) In response to Safe Labour’s submission at [67] above, the applicant contended that it would not be unusual for a worker to sue only a non-employer in certain circumstances, particularly where the employer did not have a substantial degree of control over the worker’s working conditions.

Submissions on purpose of cross-border legislation and mischief being remedied

70 The applicant submitted that the judge took an overly narrow and literal approach to the wording of s 129MB(1) and (2) of the AC Act and that he failed to give due weight to:

(a) the context in which the section appears in the AC Act;

(b) the purpose of pt IV div 6AB of the AC Act;

(c) the mischief which pt IV div 6AB of the AC Act was intended to remedy; and

(d) the unlikelihood that the Parliaments of the States would wish to create a system whereby two or more different and irreconcilable sets of laws would be used to assess damages in one case.

71 He contended that the fundamental purposes of the cross-border legislation were:

(a) to create a set of laws which would enable each State court to consider and apply the same criteria in order to make a determination as to the State with which the worker's employment was connected;

(b) to provide that the court’s determination would be recognised in all of the States;

(c) to provide that a worker would become entitled to statutory benefits under the legislation of the State that was determined to be connected with the worker’s employment and the worker would have no entitlement to statutory benefits in any other State; and

(d) to provide that any common law claim made by a worker in addition to statutory benefits would be governed by the substantive laws of the State so determined.

72 According to the applicant, this process provided certainty and consistency throughout Australia in respect of claims for statutory benefits and common law damages. He submitted that it must also be the purpose of the cross-border legislation that the legislation of a particular State would apply to all common law claims brought against an employer and others so that the laws which governed the worker's right to statutory benefits also governed the worker's rights at common law. It was said that it would be contrary to the language of the cross-border legislation and their explanatory memoranda if the model which was intended to apply uniformly resulted in an outcome whereby common law proceedings against the employer, and in the same proceeding against non-employers, must be determined by two different sets of laws.

73 The applicant contended that, on Safe Labour’s construction of s 129MB, his claims for damages against Safe Labour and GCS would not be governed by either the AC Act or the WA Act and therefore ‘[fell] between two stools’. This was because, on Safe Labour’s construction, the provisions which governed the applicant’s claims against it and GCS were s 129MB(2) of the AC Act and s 93AB(2) of the WA Act. In the present case, the applicant would be unable to satisfy the requirements of s 129MB(2) of the AC Act because, although his employment was connected with Victoria, the alleged negligence upon which his claims against Safe Labour and GCS were founded did not occur in Victoria. Conversely, the applicant’s claims against Safe Labour and GCS would not satisfy the requirements of s 93AB(2) of the WA Act because, although the alleged negligence upon which his claims were founded occurred in Western Australia, his employment was not connected with that State. The applicant contended that, having regard to the history and purpose of the cross-border legislation, it could not be the case that the Victorian Parliament and its counterparts intended for this consequence.

74 The applicant submitted that the explanatory memoranda to the Accident Compensation and Transport Accident Acts (Amendment) Bill 2003[73] and the Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA)[74] clearly stated that their provisions would form a uniform approach throughout the States. He contended that a uniform approach would require uniform law to apply to all tortfeasors, that is, both employers and non-employers.

75 The applicant observed that the legislation in each of the States regulating statutory benefits and common law rights for workplace injuries differed in significant ways. He contended that it was therefore unsurprising that the cross-border legislation had the effect that the same scheme which governed the worker's rights to statutory benefits would also govern the worker's rights to common law damages.

76 Similarly, the applicant observed that s 129MB(1) and (2) of the AC Act had different fields of operation. Sub-section (1), which the applicant contended related to claims for damages against at least an employer, contained no jurisdictional limitation relating to the place where the tort or breach of contract and the resultant injury occurred. On the other hand, sub-s (2), which the applicant contended governed claims made against a non-employer but not against an employer, required that a worker’s employment be connected with Victoria and that the tort or breach of contract have occurred within Victoria. The applicant further noted that, while the legislation of each State uniformly contained the equivalent of s 129MA and s 129MB(1), the legislation of New South Wales (the Workers Compensation Act 1987 (NSW) (‘NSW Act’)), Queensland (the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘Qld Act’)) and the Australian Capital Territory (the Workers Compensation Act 1951 (ACT) (‘ACT Act’)) did not contain the equivalent of s 129MB(2). The applicant submitted that the absence of sub-s (2) strengthened the argument that ss 129MB(1) and (2) had different fields of operation and should not be interpreted as demonstrating that the cross-border legislation was intended to have different substantive laws apply to an employer on the one hand and to a non-employer on the other.

77 Salta contended that Victoria was the only State or Territory in which the relevant legislation sought to place substantial restrictions on a worker’s common law rights against non-employers. Salta contrasted the legislative position of Victoria with those of other States and Territories as follows:

(a) In Victoria, s 134AB of the AC Act applied to an injury arising out of or in the course of, or due to the nature of employment. The section therefore applied to both employers and non-employers.[75]

(b) In Western Australia, pt IV div 2 of the WA Act, which was titled ‘Constraints on awards of common law damages’, only applied to damages against a worker’s employer (by the operation of s 93B).[76]

(c) In New South Wales, pt 5 div 3 of the NSW Act, which was titled ‘Modified common law damages’, only applied with respect to injuries caused by the negligence or other tort of the worker’s employer (by the operation of s 151E).

(d) In Queensland, ch 5 of the Qld Act only applied with respect to ‘damages’ for an injury sustained by a worker. Section 10 of that Act defined ‘damages’ as meaning ‘damages for injury sustained by a worker in circumstances creating, independently of [the Qld] Act, a legal liability in the worker’s employer to pay damages’.[77]

(e) In South Australia, the Return to Work Act 2014 (SA) (‘SA Act’), by operation of s 71, applied with respect to injuries caused by the negligence or other tort of the worker’s employer and arising from employment.

(f) In Tasmania, the Workers Rehabilitation and Compensation Act 1988 (Tas) (‘Tas Act’), by operation of s 138AA, applied with respect to damages against an employer.

(g) In the Australian Capital Territory, the ACT Act placed no limits on recovery of damages.

(h) In the Northern Territory, s 52 of the Workers Rehabilitation and Compensation Act (NT) specified that no action for damages would lie against the employer of the worker.

78 In the light of the above, Salta contended that it was not necessarily anomalous, at least in the States and Territories other than Victoria , to have different laws governing the assessment of damages in respect of employers and non-employers. As an example of this, Salta drew the Court’s attention to Corbett v Toll Stevedoring Pty Ltd[78] in which a worker succeeded in a claim for damages against both his employer and a non-employer and Studdert J consequently made separate assessments of damages under the NSW Act and the Civil Liability Act 2002 (NSW).

79 Safe Labour submitted that the language and intended effect of the cross-border legislation was to provide for a national framework in which:

(a) the State to which the worker's employment was ‘connected’ would govern the substantive law of a claim for damages against:

(i) an employer regardless of the State where the injury occurred; and

(ii) a non-employer if the State in which the alleged tort or breach of contract occurred was the same State with which the employment was connected;

(b) the State in which the alleged tort or breach of contract occurred would govern the substantive law of a claim for damages against a non-employer where such negligence or other wrong occurred outside the State with which the worker's employment was connected.

80 Safe Labour observed that there was nothing in the explanatory memoranda to the cross-border legislation to the effect that the purpose of the reforms was to ensure that the substantive law of a particular State would apply in respect of claims against all defendants joined to a proceeding in which an employer was sued. To the contrary, Safe Labour drew attention to the explanatory memorandum to the Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA), which it argued made clear that, so far as a non-employer was concerned, there was a need for both the worker's employment to be connected with Western Australia and the negligence or other tort on which the claim was based to have occurred in Western Australia.[79]

81 Safe Labour contended that the explanatory memoranda to the cross-border legislation did not identify the fact that a worker might recover compensation and common law damages under different schemes as a mischief that it was intended to remedy. To the contrary, Safe Labour noted that s 85(6) of the AC Act recognised the right of the VWA to recover from a worker any damages recovered outside Victoria.

82 Safe Labour cited the explanatory memorandum to the Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA) in support of the proposition that the purpose of the cross-border legislation was to fix one scheme with the responsibility for payment of statutory benefits so as to avoid the need for an employer to obtain multiple workers compensation insurance policies throughout Australia where a worker may be exposed to the risk of injury. As further support for this proposition, Safe Labour drew attention to the second reading speech of the Accident Compensation and Transport Accident Acts (Amendment) Bill 2003, in which the Minister stated that ‘the bill will implement cross-border arrangements for workers compensation to: reduce the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction’.

83 Safe Labour submitted that the cross-border legislation specifically preserved different limitation periods applicable under the substantive law of the States for non-employer defendants. Safe Labour submitted that this was significant given the importance of limitation periods to the proper administration of justice and the welfare of society.[80]

84 In response to the applicant’s submissions summarised at [76] above, Safe Labour observed that the relevant sections of[81]he NSW Act81[82]nd Qld Act82 limited the application of their ‘choice of law’ divisions to ‘a claim for damages against a worker's employer’ in respect of or in relation to ‘an injury that was caused by ... the [worker’s] employer’. Similarly, the ACT Act limited the application of its ‘choice of law’ division to a ‘claim for damages in relation to a work-related injury to a worker caused ... by ... the empl[83]er’.83 According to Safe Labour, the consequence of this was that, whilst those Acts used different language to that in the AC Act, the WA Act,[84]he Tas Act84 and[85]he SA Act,85 they produced the same effect. That was said to be because, in the absence of a provision similar to s 129MB(2) of the AC Act, the provisions in those jurisdictions which were equivalent to s 129MB(1) confined the statutory choice of law rules to claims against employers.

85 GCS submitted that the mischief sought to be addressed by the cross-border legislation was limited to common law claims between workers and employers. GCS contended that any differences between the cross-border legislation of the States merely emphasised that, in Victoria and Western Australia, the legislature saw fit to differentiate clearly the position of employers and non-employers.

Submissions on inconvenience and difficulty arising from construction of s 129MB

86 The applicant submitted that the judge did not give due weight to the inconvenience and difficulty in applying two different schemes of statutory benefits and common law claims to determine the one claim for damages. He observed that, while the common law principles relating to negligence were the same in each jurisdiction, the assessment of damages would be different in each State. Similarly, he observed that the quantification of the contribution claims made by Salta, Safe Labour and GCS against each other would be governed by a different regime to that under which the applicant’s claim against Salta would be assessed. According to the applicant, this was an unreasonable consequence of the judge’s interpretation of s 129MB which, consistently with the authorities set out at [45] to [48] above, this Court should seek to avoid.

87 In reliance on the principles set out at [48] above, Safe Labour contended that the applicant had failed to demonstrate that the inconvenience and difficulty upon which he relied were sufficiently serious or anomalous to justify displacing the literal construction of the AC Act.

88 According to Safe Labour, the mere fact that there would be differences in the quantification of damages under Victorian or Western Australian law did not provide a basis for discarding the plain words of s 129MB. Safe Labour cited Spotless Services Australia Ltd v Herbath[86] as an example of a case in which features of a statutory compensation scheme applied to the employer defendant but not to the non-employer defendant where all the parties were in the same State.

89 Safe Labour submitted that the applicant’s construction of s 129MB(2) of the AC Act would lead to forum shopping and would enable the following anomalous results:

(a) a worker would be able to claim damages against the employer and non-employer where the case brought against the employer was manifestly weak and bound to fail so as to attract a more favourable limitation period applicable to the claim against the non-employer; and

(b) a worker, as the applicant did in this case, would be able to choose the most favourable limitation period available without giving notice to a non-employer defendant. According to Safe Labour, if it had been a party to proceeding No CI-09-05826, in which Judge Bowman made an order by consent that the applicant’s employment was connected with Victoria, it would have been able to adduce evidence in support of the proposition that, in fact, the applicant’s employment was connected with Western Australia.

90 According to Safe Labour, the applicant’s construction would result in the imposition upon Safe Labour, a Western Australian non-employer tortfeasor, of a Victorian compensation scheme which had been accessed by forum shopping. Safe Labour contended that it was entitled to conduct its affairs on the assumption that it was bound by the law of Western Australia, including that State’s limitation periods, and not by the law of some other State.

91 Safe Labour also observed that, if the applicant’s construction of s 129MB were adopted, this would lead to the ‘odd’ consequence that, in an action under the common law brought in Victoria against a foreign non-employer, a worker could rely on the non-employer’s breach of the regulations of another jurisdiction for the purposes of establishing the non-employer’s negligence but that breach would not give rise to an independent cause of action for breach of statutory duty. As an example of the difficulties associated with the interrelationship of the torts of negligence and breach of statutory duty, Safe Labour cited Veljanovska v Verduci.[87]

92 In response to Safe Labour’s submission at [89] above, the applicant observed that s 80 of the AC Act and its interstate equivalents provided a uniform set of criteria which the courts in all the relevant jurisdictions were obliged to apply so as to determine with which State a worker’s employment was connected. As a consequence of these provisions, it would not matter where a proceeding was initiated for the purposes of determining which State’s substantive law would apply to those proceedings.

93 During oral argument, the applicant and Salta addressed Safe Labour’s argument at [91] above. According to the applicant, pt IV div 6AB of the AC Act did not deal with liability or negligence but instead with whether a claim could be made. In support of this proposition, the applicant drew the Court’s attention to the definition of ‘substantive law’ in s 129ME of the AC Act, which he submitted did not extend to claims for breach of statutory duty. Accordingly, so it was said, the fact that a claim was governed by pt IV div 6AB of the AC Act would not preclude a worker from relying, as against a non-employer, on an independent cause of action for breach of statutory duty based on a breach of an interstate statute. According to Salta, this Court should give little weight to the prospect that, on the applicant’s construction of s 129MB, a worker would be unable to rely, in Victorian proceedings, on a non-employer’s breach of the regulations of a foreign jurisdiction as a basis for an independent cause of action for breach of statutory duty. This was because, by virtue of s 129MB(1), this was already the case in respect of a claim against an employer.

Decision

94 Consistent with the principles set out at [27] to [42] above, we will commence our analysis of s 129MB of the AC Act by focusing on its language. As the language of s 93AB of the WA Act is virtually identical, our analysis is equally applicable to that section.

The language of s 129MB of the AC Act

95 Section 129MB is headed ‘Claims to which Division applies’. The heading[88] and the structure of the section indicate that its provisions set out conditions that must be met in order for the choice of law provisions of pt IV div 6AB to apply. They also indicate that if those conditions are not met, any modification that the division makes to the common law choice of law rules would not apply.

96 Section 129MB(1) provides that pt IV div 6AB applies ‘only’ to a claim for damages or a contribution claim brought against a worker’s employer where the injury was caused by a tort or a breach of contract committed by the employer. The following observations can readily be made about the language of sub-s (1):

(a) the three references to ‘worker’s employer’ mean that sub-s (1) applies to the worker’s employer and no other entity;

(b) the word ‘or’ is used in its ordinary disjunctive sense, which means that

sub-s (1) applies where the injury was caused either by the employer’s tort or the employer’s breach of contract; and

(c) if the injury that is the subject of the claim for damages or for contribution was not caused either by a tort or by a breach of contract by the worker’s employer, then sub-s (1) does not engage the choice of law provisions in pt IV div 6AB in respect of that claim.

97 Considered in isolation, the wording of s 129MB(1) provides no support for the applicant’s contention that, provided that a worker makes a claim against his or her employer that falls within that section, then any claims against non-employers in the same proceeding also fall within that section. The section addresses only the position of the worker’s employer. In the absence of s 129MB(2), claims against a non-employer would be governed entirely by the common law choice of law rules.

98 Of course, s 129MB(1) cannot be considered in isolation. When it is considered in conjunction with s 129MB(2), it becomes even clearer that s 129MB(1) has no bearing on the position of non-employers, as their position is governed by s 129MB(2).

99 Section 129MB(2) extends the application of the choice of law provisions of pt IV div 6AB beyond what is set out in s 129MB(1). This is made clear by the opening words ‘This Division also applies’. These words, in combination with the word ‘if’, indicate that sub-s (2) extends the application of the choice of law provisions ‘to a claim for damages or recovery of contribution brought against a person other than a worker’s employer’ where the conditions that follow the word ‘if’ are satisfied. Those conditions are that the worker’s employment is connected with Victoria and that the tort or breach of contract on which the claim is founded occurred in Victoria. If either of those conditions is not satisfied then the choice of law provisions of pt IV div 6AB do not apply to the claim for damages or contribution brought against a non-employer. In that event, the common law choice of law rules continue to apply to such a claim.

100 We reject Salta’s submission that the word ‘and’ that separates paras (a) and (b) of sub-s (2) is intended to be read disjunctively. There is nothing in the context of the section that would displace the ordinary meaning of the word as conjunctive. On the contrary, the words ‘This Division also applies ... if ... (a) ... and (b) ...’ indicate that both (a) and (b) must be satisfied. This interpretation is supported by the use of the disjunctive ‘or’ in s 129MB(1).[89] Section 129MB(2) is to be contrasted with s 129MB(4) where the word ‘and’ is used disjunctively. This is because the two items to which that provision applies are preceded by the word ‘includes’ which makes clear that those items constitute a list which is to be read distributively.

101 The wording and structure of s 129MB support the judge’s conclusion that sub-ss (1) and (2) deal with different classes of defendant in a mutually exclusive manner. Sub-section (1) deals with claims against a worker’s employer either by the worker or by another party seeking contribution. The sub-section applies to such claims irrespective of whether they are made in a proceeding in which the employer alone is the defendant or there is also a claim against a non-employer. Sub-section (2) deals with claims against persons other than a worker’s employer either by the worker or by another party (such as the employer) seeking contribution. The sub-section applies to such claims irrespective of whether they are made in a proceeding in which the non-employer alone is the defendant or there is also a claim against the employer.

102 The conditions that must be met for each of the sub-sections to apply are different. In the case of a claim by a worker against a person other than the employer or a contribution claim against such a person, the choice of law provisions in pt IV div 6AB will not apply unless the worker’s employment is connected with Victoria and the tort or breach of contract on which the claim is founded occurred in Victoria. In the case of a claim against an employer, those provisions will not apply unless the injury to the worker was caused by a tort or breach of contract committed by the employer.

103 There is no support either in the language or structure of s 129MB for the applicant’s contention that s 129MB(2) is confined to proceedings where the worker’s employer is not a party and the only claims that are made are against a non-employer. Section 129MB(1) governs claims against a worker’s employer irrespective of whether there are other parties to the proceeding and s 129MB(2) governs claims against non-employers irrespective of whether the employer is also a party to the proceeding. We should say that if, contrary to our analysis, the wording of s 129MB(2) confined the section to proceedings where the worker’s employer is not a party, the fact that such proceedings are not common would not have warranted the section being construed more widely.

104 We agree with Safe Labour’s submission that the adoption of the applicant’s preferred interpretation of s 129MB would impermissibly require the court to insert in that section words which the Parliament did not include. In particular, the applicant’s preferred interpretation would effectively require the following amendments to the section:

(a) the insertion in s 129MB(1) of the words ‘and, where such a claim is brought, also to a claim against a person other than the worker’s employer’ after the first reference to ‘employer’; and

(b) the insertion in s 129MB(2) of the word ‘only’ after the word ‘brought’.

105 Our analysis was not assisted by Safe Labour’s submission that adoption of the applicant’s preferred interpretation would encourage forum shopping. This submission ignores the fact that, before the substantive law of a jurisdiction can apply to a claim by a worker, the worker must obtain a judicial determination in accordance with s 80 of the AC Act or its equivalent that the claim has a connection with that jurisdiction. While such a determination may be made by way of a consent order, the relevant court must be satisfied that such an order is appropriate before making it.

106 It also follows from the above discussion that, if the analysis is confined to the wording and structure of s 129MB, the choice of law provisions in pt IV div 6AB can only apply to a claim for damages by a worker against a non-employer if the requirements of both paras (a) and (b) of s 129MB(2) are satisfied. The result of such a confined analysis in the present case would be that those choice of law provisions do not apply to the applicant’s claim against Safe Labour and GCS because, although his employment with Salta is connected with Victoria, the tort upon which the claim against them is founded did not occur in Victoria.

107 It also follows from the above discussion that we reject the applicant’s oral submission that the text of s 129MB supports his interpretation that sub-s (1) applies to his claims against Safe Labour and GCS by virtue of the fact that his employment with Salta has a connection with Victoria and his claim against Salta falls within that subsection, and is thus governed by the substantive law of Victoria. In our opinion, no part of the language of the section supports the applicant’s interpretation. Moreover, there is no ambiguity in the language which would provide an arguable foundation for that interpretation.

108 Unsurprisingly, the applicant relied extensively on matters extending beyond the language of s 129MB to support his preferred interpretation. We now turn to those matters.

109 We will first deal with the purpose of the amendments to the AC Act which inserted the choice of law provisions.

Legislative purpose and mischief being remedied

110 In our opinion, it cannot be discerned from the language of the AC Act that the purpose of the amendments to that Act which inserted the choice of law provisions was to ensure that once a determination was made that a worker’s employment had a connection with Victoria, all claims by the worker against all defendants would be governed by Victorian law. The mischief that was sought to be remedied by overriding the common law choice of law rules focused on obviating the need for a worker to navigate different substantive laws in respect of claims against an employer where the worker’s employment had a connection with Victoria. The modification of the common law choice of law rules in respect of claims against a non-employer were more confined.

111 Division 6AB of pt IV of the AC Act simply does not contain an overarching statement that, once a determination is made that a worker’s employment has a connection with Victoria, all claims by the worker against all defendants would be governed by Victorian law. Rather, the division carefully delineates the circumstances in which Victorian law governs a claim against an employer and the circumstances in which that law governs a claim against a non-employer. Accordingly, adopting the ordinary meaning of the provisions of pt IV div 6AB has the effect of giving effect to the purpose of the statute as reflected in those provisions.

112 An overarching statement of the type set out at [111] above is also absent from the extrinsic materials upon which the applicant relied, including the explanatory memoranda and second reading speeches relating to the Accident Compensation and Transport Accident Acts (Amendment) Bill 2003 and the Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA). The main focus of those materials was claims against employers. We agree with Safe Labour’s submission that they simply do not say that one of the purposes of the reforms was to ensure that the substantive law of a particular State would apply in respect of claims against all defendants joined to a proceeding in which the employer was sued.

113 In any event, even if the extrinsic materials disclosed a legislative purpose as broad as the applicant contended, that purpose would be incapable of providing a useful foundation upon which to base the interpretation of particular provisions of pt IV div 6AB. This is because those provisions do not purport to reflect such a broad purpose but rather set out specific criteria that govern when the division applies. If the criteria are not satisfied then the statutory modifications to the common law choice of law rules do not apply, leaving those rules to govern the position. The common law rules cannot be modified by a broad, free-standing legislative purpose which has no basis in the language adopted by Parliament.

114 The construction of s 129MB which we have adopted on the basis of the language of that section gives effect to the purpose of the amendments to the extent that that language permits. Where a determination is made that a worker’s employment has a connection with Victoria, the worker can claim statutory benefits from the employer under the AC Act. The worker can also claim common law damages from the employer under the AC Act if the injury was caused by the negligence or breach of contract of the employer, even though the injury occurred outside Victoria. In such cases, the fact that an injury to a Victorian worker occurred outside Victoria does not mean that the substantive law of a State other than Victoria would apply. Accordingly, as between the worker and the employer, the construction that we have adopted is compatible with the purpose of the amendments.

115 In the context of claims by a worker against a non-employer, or contribution claims between employers and other parties potentially liable to the worker, the question arises whether the construction we have adopted is inconsistent with the purpose of the amendments. In our opinion, that question should be answered in the negative for the reasons that follow.

116 The different approaches that the legislation adopts in relation to claims against employers compared to claims against non-employers is neither irrational nor absurd. Where a worker’s employment has a connection with Victoria, there are good reasons why Victorian law should apply to a claim by a worker against that employer even though the injury occurred outside Victoria.

117 Where, however, a claim is sought to be made against a non-employer whose business operations and products have no connection with Victoria in respect of an injury arising from a breach of contract or tort founded in the non-employer’s jurisdiction, it makes sense that any modifications to the common law choice of law rules be more limited. This is because the non-employer, who may have taken all reasonable steps to comply with the law of his or her own jurisdiction, would have a reasonable expectation that his or her legal liability for events occurring in that jurisdiction would be governed by the laws of that jurisdiction rather than those of a jurisdiction to which his or her business operations and products have no connection. Balancing the legitimate interests of the foreign non-employer against the interests of the Victorian worker involves making policy choices. The policy choices that the Victorian Parliament made are reflected in the language of s 129MB and this Court must give effect to that language.

118 As part of his submissions about the purpose of the amendments to the AC Act, the applicant relied on the fact that the amendments were part of a uniform legislative scheme to deal with cross-border claims. The applicant contended that the construction adopted by the judge fails to give effect to the uniformity sought to be achieved by that scheme.

119 We reject the applicant’s contentions. They are based on general notions of uniformity rather than the actual language adopted by the relevant jurisdictions. An analysis of the amendments made by the Australian jurisdictions pursuant to the proposed uniform legislative scheme demonstrates that:

(a) New South Wales, Queensland and the Australian Capital Territory adopted a provision that is equivalent to s 129MB(1) of the AC Act but did not adopt a provision that is equivalent to s 129MB(2).

(b) Victoria is the only State in which the workers compensation legislation places restrictions on common law claims against non-employers.

120 In the light of these differences in the laws of various jurisdictions, it is impossible to identify any express provision in the laws of the uniform legislative scheme with which the judge’s construction of s 129MB of the AC Act is inconsistent. The observations of Gleeson CJ in Carr,[90] which are set out at [40] above, are particularly pertinent in this context.

121 We reject the applicant’s contention that the construction of s 129MB that the judge adopted is contrary to the purpose of the uniform cross-border scheme because that scheme did not intend that a claim against a non-employer could ‘fall between two stools’ in that none of the statutory choice of law provisions of any jurisdiction apply to them. This contention is based on the misapprehension that the scheme intended to comprehensively displace the common law choice of law rules. As we have already explained, those rules are modified only to the extent that the language of the statutory provisions permit. Where the statutory provisions do not apply, the common law rules continue to apply.

122 In this context, it is noteworthy that the uniform legislative scheme does not impose any uniform limitation period but preserves the operation of the existing limitation periods as part of the substantive law of each jurisdiction.[91] We agree with Safe Labour that commercial organisations are entitled to assume that the exposure of their businesses to legal liability is ordinarily governed by the law of the jurisdiction in which they conduct their business. The cost and uncertainty of making such an organisation potentially subject to claims within a limitation period of a jurisdiction with which its business operations and products have no connection is a matter that the legislatures may well have balanced against any detriment to a worker arising from the non-application of the limitation period of the jurisdiction with which his or her employment has a connection.

Inconvenience arising from literal interpretation of s 129MB

123 We now turn to the applicant’s submissions about the inconvenience that results from the judge’s construction of s 129MB. The effect of that interpretation in particular cases where claims are made against an employer and a non-employer in the same proceeding is that different and incompatible laws will apply to each claim. That would certainly be the position in the present case if the applicant’s claims against Safe Labour and GCS were not statute barred. There are two reasons for this. First, the provisions of the AC Act dealing with available heads of damage and caps on recoverable amounts differ from those in the WA Act. Secondly, a claim for contribution by Salta against Safe Labour and GCS would be determined by the common law choice of law rules whereas a claim for contribution by those companies against Salta would be determined by s 129MB(1) of the AC Act.

124 We accept that it may appear anomalous that contribution claims between the same entities may not all be governed by the substantive law of a single jurisdiction. We also accept that the judge’s construction of s 129MB will, in particular cases, result in inconvenience and difficult issues relating to quantum of damages. There may also be difficult issues relating to liability where occupational health and safety (‘OH&S’) and other laws in different jurisdictions impose varying statutory duties. For example, in the present case, if the applicant’s preferred construction of s 129MB were accepted and the substantive law of Victoria applied, breaches of Western Australian OH&S laws which are specific to working conditions in that State may not have been capable of founding a claim for breach of statutory duty, even though such breaches may have remained relevant to a claim in negligence.

125 The principles summarised at [45] to [46] above indicate that, where alternative interpretations of a statutory provision are available, the court may adopt an interpretation that avoids absurd or inconvenient results. However, the court cannot reject the plain and rational meaning of a statutory provision and in effect redraft it in order to avoid particular inconvenience and difficulties, especially where the redrafted version would cause its own inconvenience and difficulties.

126 In the present case, there is nothing absurd about our preferred interpretation of s 129MB. In the absence of that section, the common law choice of law rules would apply to claims against employers and non-employers. Those rules can lead to inconvenience and difficulties but they may also offer advantages in particular cases. The Victorian Parliament has opted to modify those rules to the extent set out in the section in order to ameliorate some but not all of the inconvenience and difficulties arising from them. Once the limits of those modifications are ascertained from the language used, claims that are not covered by the modifications continue to be governed by the common law rules and to be subject to any remaining inconvenience and difficulties.

127 In particular cases, the common law rules may cause inconvenience to a worker making a claim with a cross-border element, while in other cases they may cause inconvenience to the person against whom the claim is made. There is no warrant for extending the reach of the statutory modifications beyond the limit that their language permits in order to ameliorate the position of one of the parties to a potential claim with a cross-border element. As discussed at [117] above, while the applicant’s preferred interpretation of s 129MB would reduce inconvenience to him, it would cause inconvenience to Safe Labour and GCS.

128 Where a court is faced with a situation where one set of statutory provisions governs a claim against an employer and another set governs a claim against a non-employer in the same proceeding, the court will be required to do the best it can in determining the outcome in the particular case. This is part of the ordinary work of the courts.[92] The difficulties are not insurmountable and are certainly not sufficient to justify a construction of the AC Act which its language does not permit, especially where such a construction would create its own difficulties. Further, provisions such as ss 84B and 85 of the AC Act seek to prevent a worker from recovering more than once for the same loss.

Conclusion

129 For the above reasons, we would grant the application for leave to appeal, treat the appeal as having been instituted and heard at once and dismiss the appeal.

GARDE AJA:

130 I have had the benefit of reading, in draft, the reasons of Osborn and Kyrou JJA. I agree with the orders their Honours propose and their reasons. In my view, there is an additional reason which strengthens the conclusion that the construction of s 129MB of the AC Act accepted by the Court is the correct one.

131 The important rule of interpretation known as the ‘principle of legality’ is supported by a long line of authority both in the High Court[93] and in Victoria.[94] It requires a Court, when faced with a choice, to favour the construction which will ‘avoid or minimise [the] encroachment upon rights and freedoms at common law’.[95]

132 While this expression of the principle of legality refers to ‘rights and freedoms’, the principle itself is not so confined. Potter v Minahan, the wellspring of this authority, spoke not only of ‘rights’, but also ‘fundamental principles’ and ‘the general system of law’.[96] In Saeed v Minister for Immigration and Citizenship[97], the High Court described its operation as follows:

The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness derives from the principle of legality, which ... ‘governs the relations between Parliament, the executive and the courts’.^[98]

133 Nor should the principle of legality be seen as limited only to aspects of the common law that are judged ‘fundamental’. In Momcilovic v The Queen,[99] French CJ considered this point, stating:

The range of rights and freedoms covered by the principle has frequently been qualified by the adjective ‘fundamental’. There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power.^[100]

134 A broad statement of the principle, with which I have previously and still agree, was adopted by Maxwell P in Shaw v Gadens Lawyers.[101] There his Honour stated that a ‘foundational’ rule of interpretation was that ‘Parliament is not to be taken to have altered the common law unless its intention to do so is made unambiguously clear by the statutory language used’.[102]

135 To interpret s 129MB in the manner contended for by the applicant would be a substantial departure from the common law principles of choice of law. Safe Labour and GCS would be denied their ordinary entitlement to have the proceeding determined in accordance with the laws of Western Australia and to rely upon the statutes and laws enacted by the Parliament of that State. The language of the section does not manifest an irresistibly clear intention to deprive them of these entitlements, and this is another reason why the appeal must be dismissed.

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^[1] Prior to 5 November 2002, by s 5(1)(a) of the Limitation of Actions Act 1958, the limitation period for an action in tort was six years. The Limitation of Actions (Amendment) Act 2002 introduced a three year limitation period for actions for damages in respect of personal injuries, which is now contained in s 5(1AA). However, pursuant to a saving provision in s 40, the version of the Limitation of Actions Act 1958 as in force immediately before the commencement of the Limitation of Actions (Amendment) Act 2002 continues to apply to actions for damages to which pt IV of the AC Act applies.

^[2] Di Paolo v Salta Constructions Pty Ltd [2015] VSC 31, [74] (‘Reasons’).

^[3] The statements of agreed facts that were prepared by the applicant and Safe Labour varied in some respects. The trial judge adopted the statement prepared by the applicant. Paragraph 6 contains assumptions rather than agreed facts. See Reasons [10] n 2.

^[4] Reasons [10] (citations omitted).

^[5] See [12(16)] above.

^[6] Section 129MA(1) of the AC Act is set out at [18] below.

^[7] As stated at [19] below, s 93AA of the WA Act is virtually identical to s 129MA of the AC Act.

^[8] Section 129MB of the AC Act is set out at [18] below. As stated at [19] below, s 93AB of the WA Act is virtually identical to s 129MB of the AC Act.

^[9] Unless otherwise indicated, any generic references in this judgment to ‘State’ or ‘States’ include the Australian Capital Territory.

^[10] Accident Compensation and Transport Accident Acts (Amendment) Act 2003 s 1(a).

^[11] The only differences are: first, unlike s 129MB(1), s 93AB(1) does not contain the word ‘only’; secondly, s 129MB(2) refers to ‘Victoria’ whereas s 93AB(2) refers to ‘this State’. The equivalent of s 129MA(5) is contained in s 5 of the WA Act (definition of ‘State’).

^[12] Explanatory Memorandum, Accident Compensation and Transport Accident Acts (Amendment) Bill 2003 (Vic) 1, 9.

^[13] Victoria, Parliamentary Debates, Legislative Assembly, 16 October 2003, 1158 (Rob Hulls, Attorney-General).

^[14] Explanatory Memorandum, Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA) 1–4, 6–9.

^[15] Reasons [63]–[68] (citations omitted).

^[16] (1997) 187 CLR 384 (‘CIC’).

^[17] CIC (1997) 187 CLR 384, 408.

^[18] [1998] HCA 28; (1998) 194 CLR 355 (‘Project Blue Sky’).

^[19] McHugh, Gummow, Kirby and Hayne JJ.

^[20] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 381 [69].

^[21] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 384 [78] (citations omitted).

^[22] Francis Bennion, Statutory Interpretation (Butterworths, 3^rd ed, 1997) 343–4 (citations omitted), quoted in Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 384 [78].

^[23] [1997] HCA 53; (1997) 191 CLR 85 (‘Newcastle’).

^[24] Newcastle [1997] HCA 53; (1997) 191 CLR 85, 99. McHugh J also referred to the explanatory memorandum to the Insurance Contracts Bill 1984 in interpreting s 40 of the Insurance Contracts Act 1984 (Cth) (at 112–3).

^[25] [2009] HCA 40; (2009) 238 CLR 642 (‘SZJGV’).

^[26] SZJGV [2009] HCA 40; (2009) 238 CLR 642, 651 [9], 663 [44]–[45].

^[27] SM v The Queen [2013] VSCA 342, [49].

^[28]  [2009] HCA 41 ; (2009) 239 CLR 27 (‘Alcan’).

^[29] Alcan  [2009] HCA 41 ; (2009) 239 CLR 27, 46–7 [47] (citations omitted). This statement was endorsed by this Court in Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [99].

^[30] Alcan  [2009] HCA 41 ; (2009) 239 CLR 27, 32 [5].

^[31] Alcan  [2009] HCA 41 ; (2009) 239 CLR 27, 47 [51].

^[32] [2010] HCA 23; (2010) 241 CLR 252 (‘Saeed’).

^[33] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 85 [95], 94 [128], 113 [181], cited in Saeed [2010] HCA 23; (2010) 241 CLR 252, 263–4 [25].

^[34] Saeed [2010] HCA 23; (2010) 241 CLR 252, 264–5 [31].

^[35] Saeed [2010] HCA 23; (2010) 241 CLR 252, 265 [33].

^[36] Saeed [2010] HCA 23; (2010) 241 CLR 252, 265 [34].

^[37] French CJ, Hayne, Crennan, Kiefel and Bell JJ.

^[38] [2012] HCA 59; (2012) 246 CLR 469 (‘Baini’).

^[39] Baini [2012] HCA 59; (2012) 246 CLR 469, 476 [14] (citations omitted).

^[40] [2012] HCA 55; (2012) 250 CLR 503 (‘Consolidated Media’).

^[41] Consolidated Media [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (citations omitted).

^[42] [2014] HCA 12; (2014) 250 CLR 664, 671 [22].

^[43] [2007] HCA 47; (2007) 232 CLR 138 (‘Carr’).

^[44] Carr [2007] HCA 47; (2007) 232 CLR 138, 143 [5].

^[45] Carr [2007] HCA 47; (2007) 232 CLR 138, 143 [6].

^[46] [2013] HCA 36; (2013) 248 CLR 619, 632–3 [40].

^[47] [1995] VICSC 209; [1996] 1 VR 635 (‘Masters’).

^[48] Masters [1995] VICSC 209; [1996] 1 VR 635, 646.

^[49] [2014] HCA 9; (2014) 306 ALR 547 (‘Taylor’).

^[50] French CJ, Crennan and Bell JJ.

^[51] Taylor [2014] HCA 9; (2014) 306 ALR 547, 557 [38] (citations omitted).

^[52] Taylor [2014] HCA 9; (2014) 306 ALR 547, 558 [39], quoting Newcastle [1997] HCA 53; (1997) 191 CLR 85, 113.

^[53] Taylor [2014] HCA 9; (2014) 306 ALR 547, 558 [40].

^[54] [1981] HCA 26; (1981) 147 CLR 297 (‘Cooper’).

^[55] Cooper [1981] HCA 26; (1981) 147 CLR 297, 321.

^[56] Cooper [1981] HCA 26; (1981) 147 CLR 297, 321.

^[57] CIC (1997) 187 CLR 384, 408.

^[58] Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336, 350.

^[59] Federal Commissioner of Taxation v ANZ Banking Group Ltd [1979] HCA 67; (1977) 143 CLR 499, 509 (Stephen J). The decision of Stephen J was overturned by Gibbs ACJ, Mason, Jacobs and Murphy JJ on different grounds. It was cited with approval by this Court in WBM v Chief Commissioner of Police [2012] VSCA 159; (2012) 230 A Crim R 322, 333 [41] (‘WBM’).

^[60] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1998] FCA 1655; (1998) 83 FCR 511, 519. The decision of the Full Court of the Federal Court of Australia was overturned by the High Court on different grounds. See Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49.

^[61] Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122, 131 [36], quoted in Turner v George Weston Foods Ltd [2007] NSWCA 67, [59].

^[62] WBM [2012] VSCA 159; (2012) 230 A Crim R 322, 333 [41].

^[63] Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260, 263 [13] (‘Brown’).

^[64] See, eg, Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; (2004) 181 FLR 454, 466–7 [54], 474–5 [98]–[99], 478 [115] (‘Peat’). See also Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294; (2008) 160 LGERA 439, 452–3 [44] (‘Able’) and cases there cited.

^[65] (1968) 13 FLR 143 (‘Licensing’).

^[66] Licensing (1968) 13 FLR 143, 146–7.

^[67] Peat [2004] WASCA 122; (2004) 181 FLR 454, 461 [25].

^[68] Licensing (1968) 13 FLR 143, 147.

^[69] Able [2008] VSC 294; (2008) 160 LGERA 439, 453 [44].

^[70] Brown [2003] HCA 54; (2003) 201 ALR 260, 263 [15].

^[71] [2006] HCA 8; (2006) 226 CLR 362.

^[72] Taylor [2014] HCA 9; (2014) 306 ALR 547, 557 [38]. See [44] above.

^[73] See [21] above.

^[74] See [23] above.

^[75] In support of this proposition, Salta cited Martin v Bailey (2009) 26 VR 270, 280 [42].

^[76] In support of this proposition, Salta cited Klein v Minister for Education [2007] HCA 2; (2007) 232 ALR 306.

^[77] Salta submitted that this point was reinforced in Pukerola v Berkeley Challenge Pty Ltd [2005] QCA 49; [2005] 2 Qd R 46, 50–1 [20].

^[78] [2007] NSWSC 656 (‘Corbett’).

^[79] Explanatory Memorandum, Workers’ Compensation and Rehabilitation Amendment (Cross Border) Bill 2004 (WA) 9 [42].

^[80] In support of this proposition, Safe Labour relied on Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 552–3.

^[81] NSW Act s 150B(1).

^[82] Qld Act s 321(1).

^[83] ACT Act s 182C(1).

^[84] See Tas Act s 138AF.

^[85] See SA Act s 88.

^[86] (2009) 26 VR 373 (‘Spotless’).

^[87] [2014] VSCA 15.

^[88] Section 36(2A)(d) of the Interpretation of Legislation Act 1984 provides that, where an Act was passed prior to 1 January 2001, a heading to a section that is inserted after that time forms part of the Act and can thus be taken into account in interpreting the section.

^[89] See [53] above.

^[90] [2007] HCA 47; (2007) 232 CLR 138, 143 [5].

^[91] See the definition of ‘substantive law’ in s 129ME of the AC Act and s 93AE of the WA Act.

^[92] Examples of cases where the courts have had to grapple with different compensation schemes applying to different parties in the same proceeding include Spotless (2009) 26 VR 373; Corbett [2007] NSWSC 656.

^[93] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 304 (O’Connor J) (‘Potter’); Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309, 329 [21] (Gleeson CJ); Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, 526 [5] (French CJ) (‘Hogan’); Momcilovic v The Queen (2011) 245 CLR 1, 46 [42]-[43] (French CJ) (‘Momcilovic’).

^[94] Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 401 [154] (‘Nigro’); Shaw v Gadens Lawyers [2014] VSCA 74, [57] (Maxwell P, Tate JA and Garde AJA agreeing) (‘Shaw’); Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197, [333]-[334] (Tate JA);

^[95] Nigro (2013) 41 VR 359, 401 [154]. See also Momcilovic (2011) 245 CLR 1, 46 [43]; Tajjour v New South Wales [2014] HCA 35; (2014) 88 ALJR 860, 873 [28] (French CJ, dissenting); Hogan [2011] HCA 4; (2011) 243 CLR 506, 526 [5] (French CJ); South Australia v Totani [2010] HCA 39; (2010) 271 ALR 662, 672 [31] (French CJ).

^[96] Potter [1908] HCA 63; (1908) 7 CLR 277, 304 (O’Connor J).

^[97] [2010] HCA 23; (2010) 241 CLR 252 (‘Saeed’).

^[98] Saeed [2010] HCA 23; (2010) 241 CLR 252, 259 [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (citations omitted).

^[99] (2011) 245 CLR 1.

^[100] Momcilovic (2011) 245 CLR 1, 46 [43] (French CJ) (citations omitted).

^[101] [2014] VSCA 74.

^[102] Shaw [2014] VSCA 74, [57].