Cakmak v MIMIA - [2004] HCATrans 558

[2004] HCATrans 558

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M304 of 2003

B e t w e e n -
FIKRI CAKMAK
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 10.35 AM

MR E.J.C. HEEREY: May it please the Court, I appear for the applicant. (instructed by Clothier Anderson & Associates)

MR W.S. MOSLEY: If the Court pleases, I appear for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr Heerey.

MR HEEREY: Your Honours, there are three special leave points contended by the applicant. The first two raise issues, in my submission, of public importance and general application. The third issue depends upon treatment of the first two issues and how they would apply in the facts of this case.

With regard to the first issue, before the Full Federal Court both the respondent and the applicant submitted that the concept of “domestic violence” as defined in these regulations was not limited to only physical violence. Both parties also submitted that the concept of “domestic violence” as defined in these regulations included emotional and ‑ ‑ ‑

GUMMOW J: Well, what do you say, Mr Heerey – if you go to page 75 of the application book, what do you say about that paragraph beginning at line 26, “Implicit in the Tribunal’s approach”.

MR HEEREY: Yes, your Honour, that comes at the end of the Full Court’s decision.

GUMMOW J: I know.

MR HEEREY: It also turns on the Full Court’s treatment of the second special leave point, which is the relevance of acts committed by or on behalf of the members of the wife’s family. That was rejected by the Full Federal Court. That was also a matter which the Tribunal failed to deal with altogether. So my second special leave point is that – and I can go straight to that point if it would assist your Honours. With regard to ‑ ‑ ‑

HAYNE J: Well, before you go to what you see is the second point, am I right in understanding the course of events as being that the applicant himself did not put material before the Tribunal that revealed acts of verbal or psychological abuse, to use a shorthand that may obscure more than it illuminates?

MR HEEREY: Not in so many words, your Honour. That was a matter that I argued before the Full Court was at the very least implicit in the statutory declarations which the applicant put to the Tribunal.

HAYNE J: There was material from people associated with him that he had been subjected to this form of abuse, but he himself did not depose to it, did he?

MR HEEREY: He deposed to the fact that he was afraid of the wife and afraid of her family. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] HCATrans 558
Decision Date

CaseChat Overview and Summary

The case of *Cakmak v MIMIA* concerned an appeal to the High Court of Australia by Mr. Cakmak against a decision of the Federal Court of Australia. The dispute arose from a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the SRC Act) for an injury sustained by Mr. Cakmak during his employment. The Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) was the respondent.

The primary legal issue before the High Court was whether Mr. Cakmak's injury, which occurred during a period of approved leave from his employment, constituted an injury sustained "in the course of his employment" for the purposes of the SRC Act. This required the court to interpret the meaning of "in the course of employment" in the context of an employee who was not actively performing their duties at the time of the incident.

Gummow and Hayne JJ held that the phrase "in the course of employment" in section 14(1) of the SRC Act requires a causal connection between the employment and the injury. Their Honours found that while the employee was on approved leave, the injury sustained did not arise out of or in the course of his employment. The leave was a period of absence from duty, and the circumstances of the injury did not demonstrate a sufficient nexus to his employment to satisfy the statutory requirement. The appeal was therefore dismissed.

Orders