Department for Child Protection v Morris - [2022] SASCA 131

Supreme Court of South Australia
(Court of Appeal: Civil)
DEPARTMENT FOR CHILD PROTECTION v MORRIS
[2022] SASCA 131
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
15 December 2022
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW
WORKERS' COMPENSATION - LIABILITY TO PAY COMPENSATION - LIABILITY OF EMPLOYER - STATUTORY BODY OR CORPORATION
The question of law arising on this appeal is whether a breach of the “obligation of mutuality” referred to in s 48(3)(g) of the Return to Work Act 2014 (SA) (the Act) does not apply to a worker who has a total incapacity for work by reason of a work injury.
The appellant discontinued the worker’s weekly payments after she pleaded guilty to trafficking in methylamphetamine and, in addition, after she pleaded guilty to attempting to dissuade a witness from giving evidence. After each conviction the appellant issued notices of discontinuance pursuant to s 48 of the Act.
The primary judge found that the respondent’s criminal misconduct constituted breaches of the obligation of mutuality. Both the primary judge and the Full Bench held that these breaches could not be relied upon where the worker had no work capacity at the time the notices of discontinuance were issued.
The Court held:
1.The obligation of mutuality under the Act is designed to ensure that weekly payments can be discontinued where the worker’s conduct or circumstances are “inconsistent with the necessary degree of co-operation” as between worker and employer, and where the worker’s conduct is “inconsistent with the degree of co-operation that is essential to an effective working relationship”.
2.The obligation of mutuality under section 48(3)(g) of the Act applies to a worker who has a total incapacity for work by reason of a work injury. In the circumstances, it was an error of law to find otherwise.

3. Leave to appeal is granted and the appeal is allowed.
Return to Work Act 2014 (SA) ss 48, 193; Workers Compensation Act 1971 (SA) ss 36, 43; Workers Rehabilitation and Compensation Act 1986 (SA); Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 (SA) s 11, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Asciak v Australian Glass Manufacturers Pty Limited (1964) 64 SR(NSW) 344; Attorney-General (NSW) v Melco Resorts and Entertainment Ltd (2020) 102 NSWLR 47; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321; Blyth Chemicals v Bushnell (1933) 49 CLR 66; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; Department for Child Protection v Morris [2021] SAET 146; Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417; Electric Power Transmission Pty Ltd v D’Urso (1970) 124 CLR…

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: [2022] SASCA 131
Decision Date: 15 December 2022

CaseChat Overview and Summary

The Supreme Court of South Australia granted leave to appeal and allowed an appeal concerning the application of section 48(3)(g) of the Return to Work Act 2014 (SA). The appeal was brought by the Department for Child Protection (formerly Families SA) against its former employee, the respondent, who had sustained a serious work injury in 2002 resulting in total incapacity and a significant whole person impairment. The dispute centred on whether the respondent's subsequent criminal offending, which included drug trafficking and an egregious abuse of her position as a public servant, could lead to the discontinuation of her weekly compensation payments under section 48(3)(g) of the Act.

The central legal issue before the Court was whether section 48(3)(g) of the Act, which allows for the discontinuation of weekly payments if a worker breaches the "obligation of mutuality," could apply to a worker who is totally incapacitated for work due to a work injury. The Court was required to determine if the established principles regarding the obligation of mutuality, as developed in previous workers' compensation legislation, extended to situations of total incapacity under the current Act, particularly when the worker's conduct, independent of the injury, was inconsistent with the necessary co-operation expected in an employment relationship.

The Court reasoned that the decisions below had misconstrued section 48(3)(g) by failing to recognise its applicability to a worker with total incapacity. The Court affirmed that the obligation of mutuality, as codified in the Act, is designed to ensure that weekly payments can cease where a worker's conduct is inconsistent with the required degree of co-operation between worker and employer. The Court found that the respondent's unchallenged criminal offending, which involved serious breaches of the law and an abuse of her public service position, constituted a breach of this obligation. Therefore, the Court concluded that section 48(3)(g) could indeed apply to a totally incapacitated worker in such circumstances.

Accordingly, the Court granted leave to appeal and allowed the appeal. The matter was remitted to the Tribunal for determination according to law, with the parties to be heard as to any further orders.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, these decisions adopted an erroneous reading of s 48(3)(g) because that provision does apply to a worker who has a total incapacity for work by reason of a work injury. Accordingly, permission to appeal should be granted and the appeal allowed.Factual background Before this Court there was no issue about the facts. These were largely the subject of an agreed statement of facts. The respondent had worked for Families SA, now the Department for Education and Child Development, in its Child Protection Unit. During 2002 she was seriously assaulted by a disgruntled parent over an issue concerning the removal of a child. The respondent sustained multiple physical injuries as well as a post-traumatic stress disorder and, in June 2003, she was assessed as having a 64% whole person impairment. Pursuant to s 43 of the repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the 1986 Act), the respondent received a lump sum payment of $318,990 for non-economic loss. The respondent was rendered unable to work and received weekly payments of compensation by way of income maintenance. On 1 July 2015, the respondent’s right to compensation was, pursuant to cl 34 of Schedule 9 of the Act, transitioned from the 1986 Act to the Act. Pursuant to ss 21 and 44 of the Act, the respondent was designated a “seriously injured” worker and had a potential entitlement to continue to receive weekly payments until her normal retirement age. The primary judge referred to the sentencing judge’s sentencing remarks and found that the respondent had been under telephone surveillance by police for around nine days during which she was detected to be dealing in methylamphetamine involving a number of “small street deals”. The respondent was apprehended by police when driving a car in the early hours of the morning. A search revealed that she was in possession of five plastic bags, each containing around 0.5g of methylamphetamine with a purity of 79 per cent. The primary judge found that this offending constituted a breach of the obligation of mutuality:[3]Persons involved with the sale of drugs by necessity mix with others involved in the drug trade. After all, they have to source their drugs from somewhere. Sometimes those suppliers [will] be connected to organised crime. People involved in selling illicit drugs, like methamphetamine, plainly not only have no regard for the law, they have no regard for the health and safety of those to whom they sell drugs. The potential for such a person to be compromised in the performance of their duties as a public servant is self-evident.[3] Morris v Department for Child Protection [2020] SAET 92, [43] (Gilchrist DPJ). The primary judge described the further offending as “even more egregious”, involving an abuse of the respondent’s position as a public servant “in a most appalling way”:[4]… Again I take the following from the sentencing judge’s sentencing remarks: Ms Morris’s partner had allegedly committed aggravated robbery by entering into a couple’s home unit, threatening them with a knife while one of them was holding an infant, and stealing a laptop and mobile phone. The robbery charge was listed for a declarations hearing in the Magistrates Court on 16 January 2018. A few days before this, Ms Morris attended at the victims’ home unit. Obviously armed with inside information [from] the Department that the victims and their child had a relationship with the Department, she presented herself to the victims in a composed manner, dressed and armed in such a way as to convince them that she was a Government official who had the authority of a Child Services Agency.[4] Morris v Department for Child Protection [2020] SAET 92, [45] (Gilchrist DPJ).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In circumstances where there remain unchallenged findings that the respondent’s criminal offending breached the obligation of mutuality, and on the second occasion egregiously so, the Tribunal and Full Bench should have found that s 48(3)(g) can apply to a worker who is totally incapacitated for work. Conclusion Whilst the authorities show that the obligation of mutuality developed in the context of deeming provisions which were concerned with whether partial incapacity should be treated as total incapacity, the 1995 amendments to the 1986 Act, and s 48(3)(g) of the Act, show that it now operates differently. This provision is one aspect of a scheme which is designed to ensure that weekly payments can be discontinued where the worker’s conduct or circumstances are “inconsistent with the necessary degree of co-operation” as between worker and employer,[108] and where the worker’s conduct “independent of any injury” is “inconsistent with the degree of co-operation that is essential to an effective working relationship”.[109] Depending on the facts and circumstances of the particular case, those conclusions may be appropriate where the worker is totally incapacitated by a work injury and discontinuance is sought under s 48(3)(g).[108] RJ Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665, 669-670.[109] Kelvinator v Jezior (1988) 49 SASR 592, 597-598. Accordingly, leave to appeal should be granted and the appeal allowed. The parties should be heard as to any other orders which should be made, including an order that the matter should be remitted to the Tribunal for determination according to law. DOYLE JA: Under s 48(2)(f) of the Return to Work Act 2014 (SA) (the Act), weekly payments being made to a worker who has suffered a work injury may be discontinued if the worker breaches “the obligation of mutuality”. The circumstances in which a worker breaches this obligation are described in s 48(3) of the Act. Under s 48(3)(g), those circumstances include where the worker does anything else, not otherwise covered by that subsection, that is “recognised as a breach of the obligation of mutuality”. The issue on appeal is whether weekly payments being made to a worker who is totally incapacitated for work by reason of a work injury may be discontinued under s 48(3)(g) by reason of circumstances which would be recognised as a breach of the obligation of mutuality. The facts and circumstances giving rise to this appeal have been summarised in the reasons of Livesey P and Bleby J. Their Honours have also set out the relevant legislative provisions and history, and have traced the line of decisions addressing the obligation of mutuality as recognised in the case law addressing earlier iterations of the workers compensation legislation in this State. I agree with their Honours’ reasons, and their conclusion that leave to appeal should be granted and the appeal allowed. I wish merely to add some brief observations of my own by way of emphasis.

Ratio Decidendi

Legal Principle Established

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