Meeson v Placer Pacific Management Ltd and Placer (PNG) Exploration Pty Ltd and WorkCover Authority of NSW [2002] NSWCC 47

Reported Decision : (2002) 24 NSWCCR 297

Compensation Court of New South Wales

CITATION : Meeson v Placer Pacific Management Ltd and Placer (PNG) Exploration Pty Ltd and WorkCover Authority of NSW [2002] NSWCC 47 Wendy Meeson v Placer Pacific Management Ltd PARTIES : and Placer (PNG) Exploration Pty Ltd and WorkCover Authority of New South Wales MATTER NUMBER(S) : 1786 of 1999 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24/09/01, 25/09/01, 27/09/01, 28/09/01, 02/10/01 DATE OF JUDGMENT: 11/15/2002

FOR APPLICANT: Mr M Joseph SC with Mr M L Snell instructed by Carroll & O'Dea appeared for the worker. FOR RESPONDENT: LEGAL REPRESENTATIVES: Mr S Rares SC with Mr P L Perry instructed by Vardanega Roberts appeared for the first respondent. No appearance by or on behalf of the second respondent. Mr G Beauchamp instructed by William Clinton appeared for the third respondent.

JUDGMENT: 1. This matter arises out of the tragic death of Mr Phillip Fred Plibersek ("the worker") who was stabbed to death in accommodation provided to him in Port Moresby in the early hours of Saturday 4 October 1997. His widow, Ms Wendy Meeson ("the applicant"), was also stabbed during the same attack. She claims the lump sum death benefit pursuant to s 25(1)(a) of the Workers Compensation Act 1987 ("the Act"). That sum is $235,350. Issues 2. The issues raised are these: 1. At the time of his death was the worker employed: (a) by the first respondent, or (b) by the second respondent, or (c) by both? 2. If the worker was employed by the second respondent, had his services been "temporarily lent or let or hire" by the first respondent, so the provisions of Schedule 1, cl 1 become applicable? At the time of the worker's death Schedule 1, cl 1 was part of the Act. It is now the same provision in the Workplace Injury Management and Workers Compensation Act 1998. 3. If the applicant be otherwise entitled to an award against the first respondent, has the applicant waived such right? The first respondent relies on the doctrine of election. 4. If the worker was employed by the second respondent, when and where was the contract of service made? The applicant relies on s 13 of the Act. Relevant to this issue is an issue as to what exactly comprised the contract between the worker and the second respondent. 5. Was the second respondent uninsured for its liability under the Act, so that an award can be made against the third respondent? 6. Did the deceased's death arise: (a) out of his employment; or (b) in the course of his employment; or (c) both out of and in the course of his employment. 7. If only 6(a) be established, was the worker's employment "a substantial contributing factor" to his death? If either 6(b) or 6(c) be established, then, in accordance with the decision of the Court of Appeal in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740, 20 NSWCCR 70 a substantial contributing factor is ipso facto established. Learned Counsel for the first respondent submitted that Mercer was incorrectly decided and I understood learned Counsel for the first respondent to have adopted that submission. 8. If an award be made against the first respondent, Mr Rares SC and Mr Perry have conceded total dependency, but if an award is to be made against the second or third respondent, quantum is in issue as the second respondent did not appear and Mr Beauchamp did not concede total dependency. 3. The second respondent pleaded a defence that the applicant has recovered workers compensation benefits pursuant to the laws of a foreign country and was prevented from claiming workers compensation by operation of s 13(2) but that defence was not ultimately pressed by Mr Rares SC and Mr Perry. The respondents 4. Placer Dome Inc is a publicly listed company, incorporated in Canada. It is the parent of a very large number of subsidiary companies incorporated under the laws of a large number of jurisdictions across the world. A chart of the "Placer Dome Group" as at 30 June 2000 is exhibit 136. I shall refer to Placer Dome Inc and its subsidiaries as "Placer". Placer appears to carry out mining operations in many countries. The evidence establishes that the structure of Placer at the time of the worker's death was somewhat different to that shown in exhibit 136. 5. At relevant times, the principal subsidiary in our region of the world was Placer Pacific Ltd which was a publicly listed company in Australia. Placer Dome Inc held about 75 per cent of the shares of Placer Pacific Ltd. In 1987, Placer Dome Inc was buying out the minority shareholding under a scheme referred to as "privatization". For this purpose, a Stock Purchase Plan available to staff was suspended in April 1997. The first respondent, Placer Pacific Management Ltd ("PPML") was a subsidiary of Placer Pacific Ltd. Mr Lynton Colin Viant, formerly "General Manager, Human Resources" said that PPML was the company within the (Australian) group that had the administration functions for all the various group companies. Mr Christopher David Trainor, formerly "Secretary and General Counsel for the Placer Group of Companies in Australia" said this of PPML's role: [PPML] was the service vehicle that Placer used as a group across the board for Placer just to rationalise the work that Human Resources did, the pay mistress did et cetera, it was really the service vehicle of the total [Australian] group. The idea being of course that [PPML] did everything for all the Group companies which avoided each group company having its own pay mistress, having its own HR Department and then [PPML] would do all the administrative functions and then they would back charge to the companies within the group. 6. It is to be noted that at relevant times the Placer companies in Papua New Guinea were part of the Australian group and PPML performed administrative, personnel and payroll functions for the PNG companies. 7. The principal Placer company in PNG was Placer Niugini Ltd which was wholly owned by Placer Pacific Limited. Placer Niugini Ltd had a number of wholly owned subsidiaries, one of which was the second respondent, Placer (PNG) Exploration Ltd ("PPNGX"). PPNGX was purely an exploration or prospecting company. It did not generate income. Its purpose was, clearly, to identify mineral deposits suitable for mining. It can be seen, therefore, that PPML performed administrative, personnel and payroll functions for PPNGX.