Comcare v Banerji - [2019] HCATrans 50

[2019] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C12 of 2018

B e t w e e n -
COMCARE
Appellant
and
MICHAELA BANERJI
Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 20 MARCH 2019, AT 10.03 AM

MS B.J. TRONSON: May it please the Court, I appear for the appellant. (instructed by Australian Government Solicitor)

MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MS C.G. WINNETT and MR C.J. TRAN, for the respondent. (instructed by Lander & Co)

MR S.P. DONAGHUE, QC, Solicitor–General of the Commonwealth of Australia: If the Court pleases, I appear with MR C.L. LENEHAN and MS J.D. WATSON, for the Commonwealth Attorney‑General, intervening. (instructed by the Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor–General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS F.I. GORDON, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor’s Office (NSW))

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MS L. GAVRANICH, for the Attorney‑General of South Australia, intervening. (instructed by Crown Solicitor’s Office (SA))

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, with MR N.T.L. JOHN I appear on behalf of the Attorney‑General for Western Australia, intervening. (instructed by Solicitor‑General’s Chambers)

KIEFEL CJ: The Court will receive the submissions of the Commonwealth and the respondent in relation to the notice of contention and hear further argument on whether arguments should be allowed in accordance with the notice of contention.

MR MERKEL: If the Court pleases. The argument in the notice of contention is set out, we would say accurately, in paragraph 3 of our proposed written submissions. Sorry, there is one matter I omitted to mention before I start, your Honours. In the respondent’s book of further materials in respect of this issue, a deed was inadvertently included in the material at pages 79 to 86. With the consent of Comcare and the respondent, could we ask that that be removed and not regarded as part of the material?

KIEFEL CJ: Is it confidential material?

MR MERKEL: Yes, it is, your Honour.

KIEFEL CJ: Yes, very well.

MR MERKEL: Thank you, your Honours. At paragraph 3 of our supplementary submission we have set out two main points of the argument that was put on the notice of contention. The first is that section 13(11) of the Act could not apply to the respondent in respect of her conduct because it should be interpreted consistently with the principle of legality and the need to avoid incompatibility with the implied freedom of political communication so…

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.

Continue reading Comcare v Banerji

Details

AGLC: Comcare v Banerji [2019] HCATrans 50
Case: [2019] HCATrans 50
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Comcare v Banerji*, a dispute concerning the interpretation of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the SRC Act) and the extent of an employer's liability for an employee's injury. The case involved an employee who suffered a psychological injury, which the employer, Comcare, argued was not compensable under the SRC Act.

The central legal issue before the High Court was whether the employee's psychological injury, which arose from a workplace dispute and the employer's management of that dispute, constituted an "injury" for the purposes of the SRC Act. Specifically, the Court had to determine if the injury was caused by the employee's "employment" or by "the reasonable administrative action taken in a reasonable manner by the employer in connection with the employee's employment."

The High Court, in a majority decision, held that the employee's psychological injury was compensable. The Court reasoned that the employer's actions, while administrative, were not taken in a reasonable manner. The SRC Act distinguishes between injuries caused by employment and those caused by reasonable administrative action. In this instance, the Court found that the employer's conduct in managing the workplace dispute was unreasonable, thereby falling outside the exclusion for reasonable administrative action and bringing the injury within the scope of compensable employment-related injuries. The appeal was dismissed.

Orders