NOAHS LTD (t/as The Lakeside Hotel) v GLOVER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 13 June 1995, 20 September 1995 [1995] NSWCA 323 WORKER INJURED OUTSIDE NSW — WHETHER ENTITLED TO COMPENSATION — sl3 OF WORKERS COMPENSATION ACT 1987 — POWER TO APPEAL: s32(1) Appeal from Compensation Court — Worker injured outside New South Wales Whether entitled to compensation — S13 of Workers Compensation Act 1987 Contract of employment made within New South Wales — Section satisfied: s13(1)(a). Appeal from interlocutory orders — Power to appeal: s32(1). ORDERS 1. Appeal dismissed with costs. 2. Proceeding returned to the Compensation Court. Mahoney JA These proceedings arise from injuries received by the respondent worker whilst driving home from work on 16 August 1982. The worker's work place at the relevant time, the Lakeside Hotel, and his place of abode were both located in the Australian Capital Territory. He brought proceedings in the Compensation Court of New South Wales claiming to be entitled to compensation under the Workers Compensation Act 1987 ("the Act"). The worker's claim was heard by his Honour Judge Egan. The employer, who is the first appellant Wore this Court, resisted the worker's claim on the grounds that not only was the worker not injured in New South Wales, he was not employed in New South Wales. Therefore, Egan J considered, as a preliminary issue, whether the worker satisfied the requirements of s13 of the Act, that is, whether the injuries suffered by the worker outside of New South Wales were compensable under the Act. His Honour held that the worker was employed in New South Wales, and that therefore his injuries were compensable under the Act: s13. The employer has appealed to this Court from this preliminary determination. The employer's right of appeal is based on s32(1) of the Compensation Court Act 1984 which states that "'a party aggrieved by an award of the [Compensation] Court may appeal to the Supreme Court". S31(1) of the same Act defines "award" as including an "interim award, order, decision, determination, ruling and direction". Both parties have agreed that the interlocutory decision of Egan J falls within this definition, and so there is a right of appeal. 1. THE FACTS: The determination of this initial dispute depends almost entirely upon the proper characterisation of the circumstances in which the worker came to be employed by the employer. Unfortunately, those circumstances are not clear. In 1981 the worker was working in London, at the Savoy Hotel, when he decided to return to Australia. At that stage he had completed four years of a five year course in hotel management. He approached the manager of the Savoy Hotel with a view to obtaining some employment in Australia. She arranged an 2 UNREPORTED JUDGMENTS interview for him with Mr Leatherbarrow, an executive with the employer. This interview took place in November 1981. Egan J noted that the worker gave two versions of the conversation which took place at this interview. In the first version, the worker recalled that Mr Leatherbarrow had said, "A position will be available to you when you advise me of what your arrival date is in Australia". In the second version, Mr Leatherbarrow had said a position might be available for the worker when he arrived in Australia. The worker intended to go to Australia for a holiday in December 1981 and so the two men agreed to meet at that time. In December 1981, while he was holidaying in Australia, the worker met Mr Leatherbarrow at the employer's Sydney office. The worker said that he had a conversation with Mr Leatherbarrow in which that gentleman said: "Mr Glover, I do not have a position for you immediately as I do not know your arrival date. I wish to hire you for this company. When you return to the UK please advise me when you will be arriving in Australia and then I will be able to send you a formal letter of offer". The worker replied: "Mr Leatherbarrow, when I return to the UK and have my final arrival dates I will write to you and advise you when I will be arriving in Australia." The worker was cross-examined as to the content of the conversation between himself and Mr Leatherbarrow. In cross-examination his account of it varied from his account in chief in some of the details. Subsequently, in February 1982, the worker wrote to Mr Leatherbarrow advising him that he would be arriving in Sydney on | May 1982. On 10 March 1992 Mr Leatherbarrow wrote a letter to the worker in the following terms: "Dear Mr Glover, Thank you for your letter dated 28 February which you had posted just prior to our telephone conversation. It has been noted that you will be arriving in Sydney on Malaysian Airlines on Saturday 1 May and accommodation has been reserved for you at Noahs Northside Gardens Hotel, 54 McLaren Street, North Sydney. After settling in over the weekend, please report to my office at 9.00 am on the Monday and it is my intention that you will spend a few days in Head Office meeting various personnel and becoming acquainted with Head Office procedures. The General Manager at the Lakeside is aware of your arrival and it will be in order for you to spend a few nights in the Lakeside whilst finding accommodation. As I informed you, there will be numerous people who will be able to advise you as to availability of accommodation once you are in Canberra. It has been noted that your goods and chattels are being shipped through to the Lakeside by Faron's Ltd and my suggestion would be for you to insure them from point to point, in other words, they may be kept in store in Canberra and once you have obtained suitable accommodation they can then be taken to your future place of abode giving you adequate cover on insurance until they are opened at your new home. My main suggestion for this is if you ship them to he Lakeside and only insure them to there, you will certainly not be unpacking, and you could have problems should there be any claims as the shippers will undoubtedly state that all breakages occurred between the Lakeside and your home. During our last conversation in Sydney, you will recall I informed you I would wish you to spend a few weeks in the Lakeside Reception and Front Office and after a period of time I would promote you to Front Office Manager. Since our URJ NOAHS LTD (t/as The Lakeside Hotel) v GLOVER (Mahoney JA) 3 last conversation, however, the Front Office Manager has subsequently resigned, thus the reason for my phone call to you. The General Manager and I have therefore agreed that we will not appoint anyone during the month of April and that in principle you will be officially appointed in the capacity as Reception and Front Office Manager as of | May. Under these circumstances, which are somewhat unusual, as I always wish members of staff coming from overseas to have a few weeks settling in period prior to taking on full responsibility, your remuneration will be paid in that capacity. Your salary, paid monthly, which is reviewed every six months, ie on 1 January and 1 July, will be: Gross $15,500 per annum Car Allowance $550 " " Entertainment Allowance $500 " " I should explain that the car and entertainment allowances are purely an addition to your salary and are non-taxable. As stated above, salaries are reviewed bi-annually, but in this instance you will not receive a review until 1 January 1983. We also have to advise that additional loading on holiday pay, which is quite common in this country, is not paid to the Noahs Ltd managerial staff. The usual emoluments befitting a Front Office Manager will be accorded to you, four weeks annual leave, meals whilst on duty and after a qualifying period of a few months you will be invited to join the Noahs Ltd Superannuation Scheme, which I will explain to you after your arrival. Dress requirements are black stripes and short black jacket during the day and dinner jacket in the evening, which is quite normal. From the point of view of day to day duties, these will be explained to you and discussed at greater length with the General Manager, Mr Speldewinde. Hoping you have a safe journey and looking forward to seeing you on the 3rd May." There appears to have been no further communication between the parties. The worker presented himself for work in Sydney on 3 May 1982. The office of Mr Leatherbarrow from which the letter of 19 March 1982 was written was in Sydney. When he arrived in Sydney, the worker worked in the business conducted by the employer in Sydney. He worked in the business of the employer in Christchurch, New Zealand, for a short time and then took up a position at the business conducted by the employer at the Lakeside Hotel in Canberra. It was while he was based at the Lakeside Hotel that the worker was injured. The circumstances of the injury are not relevant in this appeal. It was primarily for the trial judge to determine what had been said between the worker and Mr Leatherbarrow during the conversation in Sydney in December 1981. His Honour said: "In December 1981 the applicant came to Australia and spoke to Mr Letherborough (sic) at the respondent's Sydney office. At that point of time, it would appear that Mr Letherborough said no immediate situation was available because he did not know the applicant's arrival date, and that he wished the applicant to advise the date and he would send a formal letter of offer." Having regard to the letter of 10 March 1982, his Honour concluded that the letter did not constitute "an offer of employment but was rather a statement of the arrangement which had already been concluded as to the applicant's 4 UNREPORTED JUDGMENTS employment. The only matter up to that stage which had been left in abeyance was the position regarding his arrival date". His Honour concluded: "... that the probabilities are that all matters were concluded in December 1981, except the precise date of commencement. The fact that the precise date of commencement was still uncertain does not, in my view, take one to the situation that the parties had not reached an agreement." His Honour considered, as an alternative, the possibility that the letter of 10 March 1982 constituted merely an offer by the employer to the worker. He concluded that if that were the true purport of it, a contract had been concluded either because previously the worker had notified his date of arrival to Mr Leatherbarrow by a telephone call addressed to him in Sydney or, as I understand his Honour's judgment, his arrival in Sydney on 3 May 1982 constituted an acceptance of that offer. 2. THE PRINCIPLES TO BE APPLIED: Where an injury occurred outside of New South Wales, an applicant under the Act must satisfy the requirements of s13 in order to be entitled to compensation. Relevantly, that section provides: "13 (1) If: (a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker; and (b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act, the injury is an injury to which this Act applies, and compensation is payable accordingly....." There is no doubt that the words "there employs a worker" refer to the place where the worker is engaged, and not to the place where the work is performed: see Helmers v Coppins (1961) 106 CLR 156 at 164; Frank R Wolstenholme Pty Ltd v Davis (Court of Appeal, 28 July 1995, unreported at 3, per Kirby ACJ). The section was recently considered by this Court in Starr v Douglas (1994) 35 NSWLR 133. In the present case, the employer had "a place of employment in New South Wales". It had the office in Sydney to which I have referred and the business in which the worker worked on his arrival in Sydney. Accordingly, to satisfy s13(1)(a) it is necessary that the worker establish that the employer "there employs a worker'. Reference was made in argument to observations made by members of the court in Starr v Douglas. Reference was there made to the requirements of the section in a case in which the worker claims that the employer "is for the time being present in New South Wales". It was submitted that the court decided in such a case it was necessary that when the employment contract be made, the worker also be present in New South Wales. In the present case, as I have said, the employer had a place of employment in New South Wales and (in so far as it may be relevant) the contract of employment was made at or in relation to that place of employment. In my opinion it is not necessary that, when the contract of employment is made, the worker himself be at that place of employment or in New South Wales. It is sufficient if the employer "there" enters into the contract of employment. 3. THE CONTRACT OF EMPLOYMENT: In my opinion the terms of s13(1)(a) were satisfied. The parties did not, by the terms of their dealings, specify the point at which a legally binding contract of employment was made between them. That is to be implied from what they said URJ NOAHS LTD (t/as The Lakeside Hotel) v GLOVER (Clarke JA) 5 and did. My inclination is to find that the contract was made during the conversation between the worker and Mr Leatherbarrow in Sydney in December 1981. I infer from the letter of 10 March 1982 that at that conversation a number of the matters relevant to the terms of the employment were discussed. I am conscious that the worker's account of the conversation contains terms which may suggest that the definitive contract was yet to be made: thus, "I wish to hire you for this company" and "... I will be able to send you a formal letter of offer'. But it was, I think, then envisaged that the worker would leave London and come to Sydney and the terms of the letter of 10 March 1982 indicate some of the personal arrangements which it was necessary for him to make to do this. It seems unlikely that the worker would have done what was required if a contract of employment had not been made but was merely to be offered to him if Mr Leatherbarrow, on his arrival, thought fit. The use of terms such as "offer" has significance. These terms, if used by a lawyer or one conscious of legal implications, would provide strong evidence that a firm contract was not then in contemplation. But it was not suggested that either party to this contract used them with that significance. Iam conscious also that, in December 1981, it had not been decided where the worker was to work and it may be that some of the matters referred to in the letter of 10 March 1982 had not been agreed between them. However, in my opinion it is not necessary to the formation of a binding contract of employment that the parties then agree upon the place where the duties of contract are to be performed or the detail of them. A contract of employment such as the present envisages, I think, that the employer will have the right, within implied limits, to nominate the place where the duties are to be performed and some of the matters referred to in that letter. If this be not a correct view of the contractual position between the parties, I am of the opinion that the contract was made when the worker presented himself for employment at the Sydney office of the employer on 3 May 1982. By that time at least the terms on which the employer was prepared to engage the worker were as clear as they were to be. The worker, by presenting himself for employment, accepted what had been proposed to him, in the conversation of December 1981 and the letter of 10 March 1982. There are other alternative conclusions. It is not necessary to pursue them. I am satisfied that the worker was employed in Sydney at the employer's place of employment. For these reasons the appeal should be dismissed with costs. The proceeding should be returned to the Compensation Court to be dealt with in accordance with law. Clarke JA The argument in this case in which the respondent relied on s13 of the Workers Compensation Act 1987 was essentially factual. The appellant contended that the engagement of the respondent was effected in England. As an alternative it submitted that the contract of employment was concluded by the respondent posting a letter of acceptance in London on February 1982. The trial judge concluded that the engagement was effected in discussions between the parties in Sydney in December 1981. I do not think that Egan CCJ was in error in reaching that conclusion. Indeed I am of opinion that on the probabilities that is the much preferred view. In these circumstances it is unnecessary to discuss the construction of s13 or the recent decision in Starr v Douglas (1994) 35 NSWLR 133. However, because the point was raised I should indicate that as at present advised I adhere to the 6 UNREPORTED JUDGMENTS views I expressed at 138. Any different and less restrictive interpretations could lead to such anomalous results that they should be rejected. I agree with the orders proposed by Mahoney JA. Meagher JA I agree with Mahoney JA. 1. Appeal dismissed with costs. 2. Proceeding returned to the Compensation Court. 10 COUNSEL: Appellant: JD HISLOP QC AND MG CUMMINGS Respondent: P WEBB QC AND TM ROWLES 15 SOLICITORS: Appellant: LANE AND LANE Respondent: CARTERS253545