Comcare v Drinkwater

Case [2018] FCAFC 62

FEDERAL COURT OF AUSTRALIA

Comcare v Drinkwater [2018] FCAFC 62

Appeal from: Drinkwater and Comcare (Compensation) [2017] AATA 1228
File number: NSD 1531 of 2017
Judges: KENNY, FLICK AND PERRY JJ
Date of judgment: 26 April 2018
Catchwords: WORKERS’ COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal (Tribunal) setting aside a decision to reject the employee’s claim for compensation – where employee transferred to different area of employment in accordance with mobility policy – where employee suffered from an adjustment disorder with anxiety – whether Tribunal misconstrued the phrase “in respect of the employee’s employment” in the exclusion in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2006 (Cth)  
Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27

Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; 251 FCR 448

Canute v Comcare [2006] HCA 47; 226 CLR 535

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; 199 FCR 463

Director-General of Education v Suttling (1987) 162 CLR 427 at 437-438

Drenth v Comcare [2012] FCAFC 86; 128 ALD 1

Hart v Comcare [2005] FCAFC 16; 145 FCR 29

John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; 185 FCR 566

Long v Comcare [2016] FCA 737

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468

North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569

Peters v Comcare [2013] FCA 1361

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664

Date of hearing: 8 March 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 81
Counsel for the Applicant: Mr T Howe QC with Mr P Woulfe
Solicitor for the Applicant: Lehmann Snell
Counsel for the Respondent: Mr L T Grey with Mr J P Mrsic
Solicitor for the Respondent: Carroll & O’Dea

ORDERS

NSD 1531 of 2017
BETWEEN:

COMCARE

Applicant
AND:

GLENN DRINKWATER

Respondent

JUDGES:

KENNY, FLICK AND PERRY JJ

DATE OF ORDER:

26 APRIL 2018

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The decision of the Administrative Appeals Tribunal (the AAT) made on 8 August 2017 is set aside.

3.In place of the decision of the AAT, the reviewable decision made by Comcare dated 22 March 2016 is affirmed.

4.By consent, the applicant is to pay the respondent’s costs of the appeal as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS…

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AGLC
Comcare v Drinkwater [2018] FCAFC 62
Case
[2018] FCAFC 62
Decision Date

CaseChat Overview and Summary

In the matter of Comcare v Drinkwater, the Court was presented with an appeal from a decision of the Administrative Appeals Tribunal (AAT) that had set aside a decision to reject the employee's claim for compensation. Mr Drinkwater, a Customs Officer who suffered from an adjustment disorder with anxiety, had his claim rejected by Comcare. The AAT overturned this decision, prompting the current appeal by Comcare. The central issue before the Court was the proper construction and application of the exclusion in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Specifically, the Court had to determine whether the AAT misconstrued the phrase "in respect of the employee's employment" within the exclusion clause.

The Court's reasoning focused on the statutory construction of s 5A(1), which excludes certain matters from the definition of "injury" in the SRC Act. The Court examined the legislative history, which revealed that the purpose of s 5A was to allow employers to take reasonable administrative action without undue inhibition, thereby broadening the scope of exclusions from the definition of "injury". The Court highlighted that the exclusion was intended to protect employers from claims arising from administrative actions taken in the course of an employee's employment. The Court found that the AAT's interpretation did not align with this legislative intent, leading to the conclusion that the AAT had erred in its decision.

The Court allowed the appeal, set aside the AAT's decision, and affirmed Comcare's original decision rejecting Mr Drinkwater's claim for compensation. Additionally, the Court ordered that the costs of the appeal were to be borne by the applicant, Mr Drinkwater, in accordance with the terms agreed upon or as taxed.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal (the AAT) made on 8 August 2017 is set aside.

3. In place of the decision of the AAT, the reviewable decision made by Comcare dated 22 March 2016 is affirmed.

4. By consent, the applicant is to pay the respondent’s costs of the appeal as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The questions of law that arise on the appeal concern the construction and application of the exclusion contained in the definition of “injury” in s 5A of the SRC Act. Whether or not there is an “injury” as defined in s 5A is a threshold issue for the application of the SRC Act: see Canute v Comcare [2006] HCA 47; 226 CLR 535 at [8].BACKGROUND The background facts are set out in the Tribunal’s reasons for decision: see [2017] AATA 1228 at [8]-[29]. Some are set out below. Mr Drinkwater was for many years employed as a Customs Officer, Level 1, performing duties (including in shifts) in the Client Services Work Area located inside the International Terminal at Sydney Airport. His employment was at all times subject to the Public Service Act 1999 (Cth) (PS Act), and he was an “APS employee” for the purposes of the PS Act. Section 25 of the PSAct provided that “[a]n Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed”. At the time he commenced his employment as a Customs Officer, Mr Drinkwater was informed that there was a “regular mobility process” pursuant to which employees would be moved around various areas of the relevant Department (the mobility policy). The power to do so lay in s 25 of the PS Act: see [4] above. As it happened, the mobility policy was not implemented for some years and did not affect him until 2013. In mid-2013, following allegations of corruption (not involving Mr Drinkwater), the Department reinstated the mobility policy. Under the policy, particular staff members were selected for consideration for reassignment of duties. The mobility policy was set out in a document in evidence before the Tribunal. In order to understand the parties’ competing arguments, it is necessary to refer briefly to the terms of that document. By way of introduction, the policy document stated:Mobility is Agency driven with business delivery the primary objective of mobility. Customs and Border Protection does however recognise the importance of working collaboratively with employees, and as such, will take an employee’s personal circumstances and preferences into consideration when making mobility decisions. The mobility policy in terms obliged the Department to discuss with the employee a proposed decision to move him or her. The policy also obliged the Department to take account of an employee’s personal circumstances and preferences in making any mobility decision. This was made clear in numerous parts of the policy document, including at pp 3-4, where it was said:Though mobility initiated by the Agency will be undertaken in consultation with an employee, an employee can be moved without their consent under section 25 – Assignment of Duties of the Public Service Act 1999. The identification of the requirement to move will occur in consultation with an employee ... as appropriate depending on business requirements and/or an employee’s individual circumstances … Whilst every effort will be made to accommodate an employee’s preferences and personal circumstances, there is no guarantee that employees will be selected to move or that an employee will be moved to their nominated preference/s.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

At the hearing, senior counsel for Mr Drinkwater submitted that “benefit” in the phrase “failure … to retain a benefit” in s 5A(2)(f) meant some kind of action that can be awarded or removed by administrative action taken in respect of an individual employee’s employment independent of promotion, reclassification or transfer. Some examples were, so he said, “a discrete monetary allowance for some kind of travel, food or clothing, the availability of flexible working hours, the use of a personal vehicle, a corporate credit card, a mobile phone account, an office as opposed to an open plan workstation”. Senior counsel submitted that s 5A(2)(f) was not therefore engaged in this case.CONSIDERATION As we have said, this appeal turns on the proper construction and application of the exclusion in s 5A(1) of the SRC Act. It may be accepted that the task of statutory construction begins and ends with considering the text of the provision to be construed; and that the search for textual meaning may involve a consideration of the purpose and context of the provision: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22]-[23]; North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11]; Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [10]; and, most recently, Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; 251 FCR 448 at [25]-[26]. The disagreement in this case primarily concerned the words “suffered as a result of ... administrative action ... in respect of the employee's employment” in the exclusion in s 5A(1). As noted earlier, this form of exclusionary provision was introduced by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2006 (Cth): see [21] above. Before then, the equivalent exclusion was expressed in different terms, although the substantive definition of “injury” (then in s 4 of the SRC Act) was the same. The legislative history, including the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) (Explanatory Memorandum), was considered in detail by the Full Court in CBA v Reeve at [6]-[9] (Gray J) and [70]-[74] (Rares and Tracey JJ). There is little to be gained from repeating their Honours’ accounts. It is clear enough that the legislative history is important for two reasons. First, the legislative history elucidates the purpose of s 5A. After examining the legislative history, Rares and Tracey JJ said, in CBA v Reeve at [73], that:[T]he purpose of s 5A was to broaden the exclusion of matters from the previous definition of “injury” so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee’s employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1).This indicates that the illustration given in argument by senior counsel for Mr Drinkwater may not withstand analysis: see [41] above.