For Legal Professionals – Traps on the Borders
Acting for a client who has an action for damages that may involve the law of different Australian States has an amount of inherent risk. A good appreciation of the laws of all affected jurisdictions and how they interact is absolutely necessary to ensure that you do not end up with a sub-standard result for your client.
In John Pfeiffer Pty Ltd v Rogerson  HCA 36 the High Court confirmed that in Australia the law of the place where the tort occurred was the law that governed action on that tort. Putting aside for a moment issues of just where the tort occurred or whether there is an action in contract or pursuant to Australian Consumer Laws, this usually means that the law of the place where the accident happened is the law to be applied in any action to recover damages.
Well that seems simple enough but consider the following scenario, not uncommon, where a worker employed in NSW has an accident in Victoria at a workplace controlled by a third party who may have been negligent and contributed to the accident.
The accident occurred in Victoria so the laws of that state govern, in as much as the claim rests upon the law of tort, the Plaintiff’s rights. However, the worker would usually initially seek to recover statutory benefits pursuant to workers compensation legislation. Perhaps these statutory rights in Victoria are superior to the NSW Legislation. Can a claim be made for workers compensation under the Victorian Statutory Scheme? Probably not, as Section 9AA Workers Compensation Act NSW will be enlivened if the employment is usually connected to NSW or one of the other conditions is satisfied and so there is no entitlement to make a claim under the Victorian Scheme.
Well what about an action for damages against the employer. Assuming the employer’s negligence at least partially contributed to the accident can an action be pursued against the employer under the more lucrative Victorian Law. After all the High Court has said that Victorian Law is the applicable law. Again, the answer is probably not as the effect of Section 129 MA Accident Compensation Act (Victoria) boots the action back to the substantive law of the State where the statutory workers compensation rights are paid, NSW. Part 5 of the abovementioned NSW Act will govern the right to a damages claim which means that the worker is restricted to recovery of past and future economic loss.
Well maybe not all is lost if the third party, resident in Victoria, is also liable for contributing negligently to our worker’s accident. Such an action is governed by Civil Liability legislation and in Victoria this is called the Wrongs Act. There is no reason why an action cannot be commenced but should it be commenced against the third party only or the employer and the third party. This can only be determined after an exhaustive examination of the facts and how they relate to a cause of action and how other legislation, such as Section 85 Accident Compensation Act or Section 151 Z Workers Compensation Act may apply.
This is just one small example of the issues that may arise. The circumstances may be reversed, and this raises completely different issues.
There are many more examples.
A claim for damages for an accident in PNG for a worker employed by a Victorian company can be prosecuted in an appropriate mainland Supreme Court under PNG common law which has a 3% discount rate and no thresholds for various heads of damage but the Victorian statutory workers compensation scheme does not indemnify the employer.
In Yarham (TAC of Victoria v Yarham  NSWSC 1791) Hall J declared that in a NSW motor vehicle accident involving an employee of a Victorian company the law of NSW did not apply and the substantive law was the law of Victoria.
This decision was later overturned by the NSW Court of Appeal but the decision itself indicates the complexity of the relationship of interstate laws.
Time limits for commencing an action for damages are not consistent across the states as are the preconditions for an entitlement to a damages claim.
Being resident in a border city and having been involved for many years with injury claims for clients in all mainland jurisdictions I have witnessed the formulation of the current statutory schemes and common law and have had a good deal of experience in navigating what is sometimes complicated, confusing and conflicting rights. Often the Defendants’ lawyers, accustomed to litigating in their own jurisdiction, are just as confused by these situations. Unhappily on several occasions judges have also been led into error.
If you have a situation where you may be struggling with cross border jurisdictional issues my team and I are happy to see if we can be of assistance. Whether it is just a chat to clarify an issue, formal advice or a referral we are ready to help.