Victoria Supreme Court allows 'fly-in, fly-out' worker's injury case to proceed

The worker sustained serious injuries while working at a gold mine in Papua New Guinea

Victoria Supreme Court allows 'fly-in, fly-out' worker's injury case to proceed

The Supreme Court of Victoria has ruled that it is not a "clearly inappropriate forum" for a damages claim brought by a Victorian worker injured in Papua New Guinea (PNG).

The case concerns a fly-in, fly-out (FIFO) worker who sustained serious injuries while working at a PNG gold mine and later sought compensation in Victoria.

The plaintiff, who was employed by Simberi Gold Company Ltd., filed a claim against Simberi and its parent company, St. Barbara Limited. He suffered a significant leg and ankle injury in August 2018 after falling from a pylon while investigating an electrical malfunction at the Simberi Gold Mine. Following multiple surgeries in Australia, the worker returned to work in March 2019 but was later informed that his contract would not be renewed.

After his injury, the plaintiff made a WorkCover claim in Victoria, which was rejected on the basis that he was not covered under the state’s workers’ compensation laws. Gallagher Bassett, the claims administrator, determined that the plaintiff was employed by Simberi in PNG, and therefore his claim fell outside Victoria’s jurisdiction. The plaintiff subsequently initiated legal proceedings in Victoria, while also filing a claim in the National Court of PNG as a precautionary measure in case his Australian case was stayed.

The defendants sought to have the Victorian proceedings dismissed or stayed, arguing that PNG was the appropriate forum since the accident occurred there, the plaintiff's employment contract was governed by PNG law, and the company's workers' compensation insurance applied only to claims made in PNG. They also contended that the case should be stayed as an abuse of process due to parallel proceedings in Victoria’s County Court regarding the same injury.

The Supreme Court rejected these arguments, concluding that Victoria was not an inappropriate forum. The court noted several factors linking the case to Victoria, including the plaintiff's residence, his medical treatment and rehabilitation in Victoria, and St. Barbara’s role as the parent company. The court found that St. Barbara exercised some level of management and control over Simberi’s operations, raising questions about its potential liability.

The defendants also argued that proceeding in Victoria would be prejudicial due to insurance limitations, stating that their PNG insurance policy covered claims only if they were brought in PNG. The court acknowledged that this could result in the defendants losing approximately $1.9 million in insurance coverage. However, it found that this did not make Victoria an inappropriate forum, particularly given the plaintiff’s juridical advantage in being able to litigate in his home jurisdiction.

Additionally, the court determined that the Victorian and PNG legal systems were equipped to handle the case, noting that PNG law was not so complex as to prevent its application in Victoria. The court also considered that PNG’s procedural rules, including limited discovery and the lack of compulsory attendance requirements for foreign witnesses, could disadvantage the plaintiff if the case were heard there.

Regarding the argument that the Victorian case was an abuse of process due to the pending County Court proceeding, the court found no basis to dismiss or stay the Supreme Court case. The County Court case, which relates to a workers’ compensation claim, was maintained as a protective measure in case the plaintiff was required to obtain statutory leave to proceed with his common law claim. The Supreme Court ruled that the two cases could be managed concurrently without causing injustice or inefficiency.

Ultimately, the court dismissed the defendants’ applications, allowing the plaintiff’s case to proceed in Victoria.