JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2025
DATE OF JUDGMENT:	20 May 2025
CASE MAY BE CITED AS:	Mishra v NBN
MEDIUM NEUTRAL CITATION:	[2025] VSC 273

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APPEALS – Appeal from order granting summary judgment in respect of part of a claim – Appeal by way of rehearing – Whether error shown – Plaintiff and first defendant each rely upon argument and authorities not relied on in argument below – Claimed protected disclosure under ‘Whistleblower protections’ – Analysis of relevant statutory provisions and authorities – Claim in respect of ‘detrimental conduct’ – Nature of claim – Terms and nature of statutory bar to actions or other proceeding for damages in respect of injury sustained in the course of employment – Claim not barred – Safety Rehabilitation and Compensation Act 1988 (Cth), pt IV – Corporations Act 2001 (Cth), pt 9.4AAA – Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Attorney-General (Vic) v Andrews (2007) 230 CLR 369; Waters v Commonwealth (2013) 274 FLR 338; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403; Comcare v Friend (2024) 301 FCR 617 considered and discussed – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	JG Levine	Matrix Legal
For the First Defendant	PG Liondas KC with JT Waller	Webb Henderson
For the Second Defendant	No appearance

HIS HONOUR:

A. Introduction

On 28 September 2022, the plaintiff filed and served a further amended statement of claim[1] by which, among other things, he alleges that —
[1]Updated Application Book (‘UAB’) 58–78.

(a) on about 24 August 2016, the plaintiff and first defendant entered into an employment agreement pursuant to which the plaintiff was employed as a ‘Copper Activation Manager’ based in Melbourne;[2]
[2]UAB 58–9 [4]–[5].

(b) on about 8 November 2016, the agreement was varied, and the plaintiff thereafter undertook a long term assignment based in Mumbai, India;[3]
[3]UAB 61 [6], [7(b)].

(c) in that connection, the first defendant would —

(i) be responsible for the payment of actual tax liabilities incurred, and withhold hypothetical tax from the plaintiff’s salary each month;[4]
[4]UAB 61 [7(c)].

(ii) remit the actual liabilities incurred in Australia and India;[5]
[5]UAB 61 [7(d)].

(iii) perform a tax equalisation reconciliation each year;[6]
[6]UAB 61 [7(e)].

(iv) provide taxation advice and assistance with respect to the preparation of the plaintiff’s tax returns in Australia and India;[7] and
[7]UAB 62 [7(p)].

(v) do all acts and things needed to enable its employees in India to pay their tax liabilities in India;[8]
[8]UAB 63 [7(s)].

(d) in the course of a meeting on 3 September 2021, in particular, the plaintiff disclosed to the first defendant’s officers and senior managers that…

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 Mishra v NBN

Details

AGLC: Mishra v NBN [2025] VSC 273
Case: [2025] VSC 273
Decision Date: 20 May 2025

CaseChat Overview and Summary

In the matter of Mishra v NBN, the Full Court of the Federal Court of Australia heard an appeal against a decision granting summary judgment in part of a claim. The plaintiff, Mishra, had alleged that the defendant, NBN, had engaged in detrimental conduct in contravention of whistleblower protections. The primary judge had ruled in favour of the defendant on certain claims, leading to the present appeal by way of rehearing.

The primary legal issue before the court was whether the lower court had erred in granting summary judgment in favour of the defendant on Mishra's claims. The appeal raised questions about the interpretation of the statutory provisions related to whistleblower protections and the nature of the claim for detrimental conduct. The plaintiff argued that the lower court had misapplied the law in dismissing parts of the claim. The defendant, on the other hand, contended that the statutory bar to actions for damages in respect of injury sustained in the course of employment precluded the plaintiff's claim.

The court examined the statutory framework provided by the Safety Rehabilitation and Compensation Act 1988 and the Corporations Act 2001, focusing on the provisions concerning whistleblower protections and the statutory bar to actions for damages. The court considered relevant authorities such as Farah Constructions Pty Ltd v Say-Dee Pty Ltd, Attorney-General (Vic) v Andrews, Waters v Commonwealth, Romero v Farstad Shipping (Indian Pacific) Pty Ltd, and Comcare v Friend. After careful analysis, the court found that the lower court had erred in its interpretation of the statutory bar and the nature of the claim for detrimental conduct. The court concluded that the plaintiff's claim was not barred by the statutory provisions and allowed the appeal.

The court ordered that the appeal be allowed and the decision of the primary judge be set aside. The matter was remitted to the trial judge for further consideration in light of the court's findings.

Orders