Comcare v Friend

Case [2024] FCAFC 4

FEDERAL COURT OF AUSTRALIA

Comcare v Friend [2024] FCAFC 4

Appeal from: Friend v Comcare [2021] FCA 837
File number(s): NSD 849 of 2021
Judgment of: RANGIAH, WHEELAHAN AND GOODMAN JJ
Date of judgment: 1 February 2024
Catchwords:

ADMINISTRATIVE LAW — appeal – jurisdiction – where the proceeding below was commenced by originating application for judicial review of two purported decisions under s 48 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) – where the primary judge set aside both purported decisions – where the parties agreed that the purported decisions were affected by apprehended bias – whether there remained any justiciable matter before the Court on the appeal – liability to repay compensation under s 48 of the SRC Act does not depend on the making of any decision – if engaged, s 48(3) gives rise to a liability which may be enforced by a common law action in debt – there remained a justiciable controversy before the Court, being whether the primary judge’s declaration was in error.

WORKERS’ COMPENSATION — statutory interpretation – appeal – where the respondent was an employee of the Australian Federal Police (AFP) until her employment was terminated on the ground of invalidity – where the respondent lodged a claim for compensation with the appellant pursuant to the SRC Act – where the appellant accepted the respondent’s claim and provided compensation to the respondent including weekly payments – where the respondent lodged a complaint with the Australian Human Rights Commission alleging discrimination – where the respondent entered into a deed of release under which the AFP agreed to make a lump sum payment of $1,250,000 to the respondent in settlement of the complaint – where the appellant sought to recover from the respondent a sum representing the value of the compensation paid under the SRC Act to the respondent – where the appellant argued that the primary judge had erred in declaring that no part of the lump sum payment constituted damages or a recovery of damages within the meaning of s 48 of the SRC Act – where the appellant argued that the definition of “damages” in s 4(1) of the SRC Act supported a construction of s 48(1)(a) as encompassing damages extending to compensation under s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) – where the appellant submitted that the primary judge’s construction of s 48 undermined its purpose of preventing double recovery – where the appellant submitted that the deed of release contemplated that the lump sum payment would have an effect on the respondent’s statutory entitlements – the SRC Act establishes a comprehensive scheme for no-fault compensation – the parties accepted that the decision in Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; 231 FCR 403 established that a complaint to the AHRC is not “an action or other proceeding for damages” within the scope of s 44 of the SRC Act – coherence requires that…

Continue reading Comcare v Friend

Sign in free to access the full text

Details
AGLC
Comcare v Friend [2024] FCAFC 4
Case
[2024] FCAFC 4
Decision Date

CaseChat Overview and Summary

In Comcare v Friend, the court considered an appeal regarding the liability to repay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) after a settlement was reached through a deed of release with the Australian Human Rights Commission (AHRC). The central legal issues involved determining whether the compensation paid to the respondent constituted "damages" under s 48 of the SRC Act, which could lead to a requirement to repay the compensation to Comcare. The court had to decide if the statutory compensation scheme was engaged by the settlement payment and whether any overpayment could be rectified without dissecting the settlement amount.

The court held that the SRC Act provides a comprehensive scheme for no-fault compensation, and the parties agreed that a complaint to the AHRC does not constitute an action or proceeding for damages under s 44 of the SRC Act. The court reasoned that the statutory compensation scheme should not be undermined by potentially chilling the process of bringing complaints to the AHRC. The court concluded that the settlement payment was properly characterised as being in settlement of the AHRC complaint and not a common law claim for damages. Therefore, no part of the payment was attributable to damages for an injury within the scope of the SRC Act, and Comcare had not shown that any damages were recovered by the respondent in respect of an injury that would engage s 48(1). The appeal was dismissed with costs.

The court's decision emphasised the importance of interpreting the statutory compensation scheme in a manner that maintains its integrity and coherence. By holding that the settlement payment did not constitute damages under the SRC Act, the court ensured that the respondent would not be subject to double recovery. The court also acknowledged the potential chilling effect on the bringing of complaints to the AHRC if such complaints were considered as actions or proceedings for damages under the SRC Act. The outcome of the case reinforces the distinction between statutory compensation and common law damages in the context of workplace discrimination claims.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

3. Either party may seek a variation of the order in paragraph 2 by filing and serving by 4.00 pm on 8 February 2024 a written submission of no more than three pages, 1.5 spacing, 12 point font, in which event the other party may by 4.00 pm on 15 February 2024 file and serve a responding written submission of no more than three pages, 1.5 spacing, 12 point font.

4. Subject to further order, any application for variation of the order for costs will be determined on the papers.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to the primary judge’s treatment of McLaurin, Allsop, and Weissova, in my view no question of dissection arises in this case, because the proper characterisation of the payment under the deed of release was in settlement of the AHRC complaint relating to unlawful discrimination and sexual harassment alone, and not in settlement of any common law claim in respect of a compensable injury. Therefore, my conclusion is that for the purposes of s 48 of the SRC Act no part of the payment to the respondent was attributable to damages in respect of an injury with which Part IV of the Act is concerned. This amounts to much the same conclusion as that reached by the primary judge at J [114]-[115], with the result that Comcare has not shown that any damages were recovered by the respondent in respect of an injury such as would engage s 48(1).Conclusions The appeal should be dismissed with costs. The parties should be given an opportunity to seek any variation of the usual order for costs, in which case the Court should determine that application on the papers. I have also had the considerable benefit of reading the reasons of Wheelahan J in draft. I agree with those reasons and with the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

It was further submitted on behalf of the respondent that the primary judge was correct in applying the decisions of the High Court in McLaurin and Allsop, which concerned taxation legislation, and was correct in holding that the payment made under the deed of release could not be dissected.Consideration The following issues arise –(1)does the Court have jurisdiction in this matter to determine whether s 48 of the SRC Act is engaged;(2)is s 48 of the SRC Act limited in its application to claims for damages of the type that are abrogated by s 44;(3)if not, does the payment to the respondent under the terms of the deed of release engage s 48(1)(a); and(4)in considering the above issue, do questions of dissection attracting the principles in McLaurin and Allsop arise? I will consider the issues in turn.(1) Does the Court have jurisdiction in relation to the matter? The proceeding below was commenced by originating application for judicial review. Amongst other relief, the respondent to this appeal sought orders for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) setting aside what were alleged to be two purported decisions of Comcare. The first was the decision of Comcare dated 16 February 2021 requiring the respondent to repay the statutory compensation pursuant to s 48(3) of the SRC Act. The second was the decision of Comcare under s 48(4) to cease payments of statutory compensation to the respondent from 14 January 2021. The respondent also sought a declaration that the payment in settlement of the AHRC complaint was not damages for the purposes of s 48 of the SRC Act. Comcare filed a cross-claim seeking a corresponding declaration that, subject to the operation of s 48(7) of the SRC Act, the payment to the respondent was damages for the purposes of s 48. By orders made 28 May 2021, the primary judge set aside both purported decisions of Comcare, noting the agreement of the parties that if, after the final hearing, it was ordered that the matter be remitted to Comcare to be determined in accordance with law, it should be determined by a decision-maker, other than the original decision-maker who made the s 48(3) decision and the s 48(4) decision, without considering the contents of the position paper produced by the respondent to this appeal for the purpose of a conciliation in the Australian Human Rights Commission: J [48]. On the hearing of the appeal, counsel informed the Court that it was accepted that the decisions of Comcare were affected by apprehended bias. A question arose during the course of the hearing of the appeal whether, having regard to the primary judge’s orders of 28 May 2021, there remained any justiciable matter before the Court: see, AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 411 ALR 615. The parties provided supplementary written submissions to the Court on this question. Both parties submitted that there was a matter before the Court that was justiciable.