Mishra v NBN
[2025] VSC 273
•20 May 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2022 00385
| ABHISHEK MISHRA | Plaintiff |
| v | |
| NBN CO LTD (ABN 86 136 533 741) | First Defendant |
| and | |
| ERNST & YOUNG (A FIRM) | Second Defendant |
---
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 |
---
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.
---
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 it had failed to pay his tax liability in Australia and India in the period April to September 2021;[9]
[9]UAB 64–5 [9A].
(e) the plaintiff’s disclosures qualified for protection under pt 9.4AAA of the Corporations Act 2001 (Cth) (‘Whistleblower protections’);[10]
(f) contrary to s 1317AC of the Whistleblower protections, the first defendant engaged or threatened to engage in conduct causing detriment to the plaintiff – in particular, in the course of the meeting on 3 September 2021, the plaintiff was told that his employment would be terminated ‘in a week’;[11] and
(g) consequently, pursuant to s 1317AE of the Whistleblower protections, the plaintiff is entitled to compensation for ‘loss, damage or injury’, including for ‘psychological harm of an adjustment disorder with significant anxiety and severe depression’.[12]
[10]UAB 69 [11C]; Corporations Act 2001 (Cth) pt 9.4AAA (‘Whistleblower protections’).
[11]UAB 69–70 [11D], [11E].
[12]UAB 68 [11(k)], 70 [11F].
In narrative form, senior counsel for the first defendant summarised the above as follows —
… Mr Mishra was having tax issues and had complained about those to his employer, NBN. He claims that they are protected disclosures under the ‘[W]histleblowing [A]ct’.
He was called to attend a meeting with NBN on 3 September [2021]. During that meeting he was told that his employment would end in a week’s time. And it’s that event that leads to the claims for psychological harm or mental illness that he then makes.[13]
[13]Transcript (‘T’) 28–9.
The plaintiff also pleads —
(a) further claims against the first defendant, based in breach of the employment contract, as well as breach of fiduciary duties alleged to be owed to the plaintiff by the first defendant; and
(b) claims against the second defendant.
The plaintiff’s claim under the Whistleblower protections is the only aspect of his claims in which compensation is sought in respect of psychological harm.[14]
[14]T30.
The plaintiff particularised that aspect as follows —
7. Compensation for mental illness: –
a) Economic Loss:
i. Based on medical reports and certificates, the Plaintiff requires extended treatment and ongoing caregiver support. Considering a pension age of 67 years, which would have allowed for an additional 23 years of work, and factoring in the last Total Future Remuneration (TFR) as of July 2022 amounting to $168,755.00 with an annual increment of 2%, the estimated loss of income amounts to $5,236,518.23 AUD.
ii. The legal proceedings, psychological impact, and resulting mental illness have significantly affected the Plaintiff’s professional reputation and capacity to work within the telecommunications industry.
iii. Healthcare costs are substantial, as the Plaintiff requires long-term treatment from psychiatrists, psychologists, and ongoing medication. Considering the average life expectancy in Australia to be 83 years, the approximate overall healthcare costs associated with mental health treatment, medications, and hospitalization are expected to reach around $438,600.00 AUD (without accounting for inflation).
b) Non-Economic Losses:
i.The Plaintiff has experienced a significant loss of vitality, emotional distress, and enduring treatment for mental illness, resulting in a reduction of life’s enjoyments.
ii.The social costs of mental illness are profound, stemming from the stigma surrounding mental health, which places considerable strain on family members, particularly those with small children. Additionally, mental illness adversely impacts an individual’s life and contributes to higher rates of self-harm.
iii.The negative effects on reputation and market goodwill are evident as the public is well aware of the issues related to NBN and EY, which have also been reported in the media.
iv.Considering the cumulative impact of these non-economic losses on the Plaintiff’s life, as well as their lifelong effects on their two small children and spouse, he is seeking a total non-economic loss compensation of $664,640.00.[15]
[15]UAB 80.
By its amended defence dated 10 August 2023, the first defendant admits some aspects of the plaintiff’s allegations, although it takes issue with many others.
In particular, the first defendant pleads as follows —
24.Further or alternatively, in the premises of the allegations in paragraphs 4 to 11F (if those allegations are established, which are denied):
(a)Mishra has suffered an injury, that is a physical or mental injury arising out of, or in the course of, his employment;
(b)the injury was not suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the plaintiff’s employment,
within the meaning of section 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
25.Further, Mishra did not make an election in writing to institute a proceeding against NBN within the meaning of section 45 of the SRC Act.
26.Accordingly, if Mishra suffered loss and damage in respect of an injury as alleged in paragraph 7 of the Particulars of Loss and Damage dated 2 August 2023 … (which is denied), then in the premises of the allegations in paragraphs 4 to 11F, an action for damages does not lie against NBN by section 44 of the SRC Act.[16]
[16]UAB 89.
In substance, the first defendant contends that s 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) bars the plaintiff’s claim under the Whistleblower protections.
By summons dated 18 September 2023, the first defendant sought summary judgment in relation to ‘the claims for damages in respect of any injuries suffered by the [p]laintiff as alleged’.[17]
[17]UAB 56.
The summons raises no issue concerning the second defendant; consequently, the second defendant did not participate in the argument below, or in argument on the present appeal.
The first defendant’s summons was supported by a solicitor’s affidavit that exhibited a significant number of documents.[18]
[18]UAB 91–272.
In response, the solicitor for the plaintiff affirmed an affidavit which also exhibited a significant collection of documents.[19]
[19]UAB 273–540.
Both parties filed and served written submissions.[20]
[20]UAB 541–58.
The summons was heard by an Associate Justice on 1 December 2023. Her Honour heard extensive oral argument and reserved her decision.[21]
[21]UAB 559–649.
On 6 February 2024, the plaintiff’s solicitor emailed the Court a copy of the then recent decision of the Full Court of the Federal Court in Comcare v Friend (‘Friend’).[22] It is unnecessary to refer further to the emails exchanged.[23] It is regrettable that no substantive submissions came to be made to her Honour in respect of Friend, or in respect of the various other authorities referred to, and relied upon, by the plaintiff and first defendant in argument on the appeal.
[22][2024] FCAFC 4; since reported: (2024) 301 FCR 617 (‘Friend’).
[23]UAB 672–73.
Her Honour delivered reasons for judgment on 27 March 2024,[24] and subsequently made an order in the following terms —
Summary judgment be awarded in favour of the first defendant pursuant to s 62 of the Civil Procedure Act 2010 (Vic) in respect of the claim for damages in respect of any injuries suffered by the plaintiff as alleged in paragraphs 11 and 11F of the further amended statement of claim dated 28 September 2022 and particularised in paragraph 7 of the particulars of loss and damage dated 2 August 2023.[25]
[24]UAB 8–55; Mishra v NBN Co Ltd [2024] VSC 146.
[25]UAB 6.
The effect of the order was to grant summary judgment, in favour of the first defendant, on the plaintiff’s claim under the Whistleblower protections and by which he had sought an order for damages in respect of injury.
The plaintiff appealed.[26] It is not in dispute that the plaintiff must demonstrate error.[27]
[26]UAB 3–5.
[27]Cf Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06.
B. The decision below
Her Honour’s reasons are 45 pages in length. The length of those reasons seems, at least partly, to be explained by the extensive affidavit material relied upon by the parties at the hearing,[28] as well as the significant number of issues and authorities referred to in argument.[29]
[28]UAB 10 [3]–[4].
[29]By contrast, in argument on the appeal, it did not appear to be in dispute that there was ‘a huge swathe of the material in the application book [that] is no longer relevant’ and that there is ‘not much in [the] application book that Your Honour needs to be troubled by’: T24.
At the outset, her Honour’s reasons identify the questions for determination, including whether the plaintiff’s ‘damages claim’ (as defined) is extinguished by s 44 of the SRC Act.[30]
[30]UAB 10 [2(a)].
Her Honour turned to that question, in part, after a lengthy section entitled ‘Background’ in which her Honour drew upon the affidavit material to which I have referred, and then summarised the plaintiff’s pleaded claims, as well as the first defendant’s application.[31]
[31]UAB 10–24 [6]–[55].
In that regard, her Honour initially addressed what seems to have been presented as a sub-issue, namely whether the plaintiff ‘has an injury arising out of, or in the course of his employment’.[32]
[32]UAB 25 [61].
After a review of certain authorities, as well as the manner in which the respective arguments were put, her Honour concluded as follows —
Mr Mishra’s alleged injury arises out of, or in the course of his employment. Indeed, more narrowly, the circumstances show the injury is in the course of employment. There is a temporal connection between the injury and the employment. The injury arose in the course of work duties, namely attending a meeting with his employer’s representatives during his employment and regarding his employment. On Mr Mishra’s pleadings, he suffered detriment at the 3 September 2021 meeting because of disclosures he had made during his employment regarding tax matters: see paragraphs 11D and 11E of the FASOC. The tax matters related to his own pay. Contrary to what Mr Mishra now says, on his own pleadings, the pleaded disclosures do not relate to the termination of his employment. Rather, the disclosures relate to NBN’s failure to pay his tax liabilities during his employment: see paragraphs 9A and 11C of the FASOC. Mr Mishra’s alleged injury arises directly from the alleged acts of his employer during employment. I should add that, as already outlined, Mr Mishra’s employment was not terminated at the time of the alleged threats by NBN in September 2021, but well over a year later, in November 2022.[33]
[33]UAB 33 [80] (emphasis added).
Immediately prior to stating that conclusion, her Honour referred to, and accepted, the apparent submission of the first defendant that its summary judgment application was ‘made on the basis that the facts as alleged by the plaintiff will be accepted at trial’.[34]
[34]UAB 33 [78].
Consequently, in argument on the appeal, senior counsel for the first defendant sought to maintain that the above conclusion did not ‘draw in’ any factual findings beyond those alleged in the further amended statement of claim.[35]
[35]T27–8. Equally, it might be said, counsel for the plaintiff had earlier sought to maintain that her Honour’s determinations had been ‘all about the pleaded case’: T3–4, 20.
To say the very least, however, her Honour’s earlier and extensive recitation of the background, together with the mixed references above to the ‘circumstances’ and the ‘pleadings’, supports an apprehension that the question did not come ultimately to be decided only on the pleadings.
In particular, if the extensive affidavit material, to which I have earlier referred, became wholly, or almost wholly, irrelevant – as seemed to be sought to be suggested in argument on the appeal – that should have been made very clear to her Honour. At the very least, if some, or all, of the material remained relevant, that should have been made clear, and it should have been made clear that none of it could be, or was, relied upon in respect of the question of whether the plaintiff ‘has an injury arising out of, or in the course of his employment’.
While that seems to have been in contemplation below, the ultimate form of her Honour’s reasons leads me to doubt that it was done with sufficient clarity.
In any event, the manner in which both parties seem ultimately to have conducted the argument below ran a significant risk of leading her Honour into error by inviting the making of factual findings on a necessarily incomplete foundation. Whether, in fact, that occurred, is ultimately unnecessary to finally determine.
The next portion of her Honour’s reasons concerns several issues, including the respective positions adopted by Comcare and the plaintiff in litigation in the Administrative Appeals Tribunal concerning the plaintiff’s claim for statutory benefits (which had been rejected). Again, a significant part of that reasoning seems to be founded in the affidavit material.[36]
[36]UAB 34–8 [81]–[93].
In any event, her Honour ultimately came to frame the presently significant and central issue, as follows —
… I am satisfied… [that] if Mr Mishra’s factual case is proven: he has sustained an injury in the course of his employment, and it is an injury that falls within the definition of s 5A [of the SRC Act] and accordingly an injury that the Commonwealth would otherwise be liable for [in] damages. Therefore, Mr Mishra’s damages claim falls within s 44(1) [of the SRC Act].[37]
[37]UAB 38 [94] (emphasis in original).
From that point, her Honour considered aspects of the relevant legislative structure, as well as the plaintiff’s pleaded claims and relevant submissions. As to the latter, her Honour stated —
The question of whether s 44 of the SRC Act extinguishes a claim for damages under the Whistleblower protections is novel. Neither party could identify any authorities directly on point.[38]
[38]UAB 43 [105].
Her Honour thereafter considered aspects of legislative and other history together with authorities directed to the question of whether the Whistleblower protections and s 44 of the SRC Act might be said to be in conflict.[39] In the course of that analysis, her Honour stated, particularly, that —
[39]UAB 43–50 [106]–[124].
(a) the Whistleblower protections and s 44 of the SRC Act are not in conflict;[40]
[40]UAB 45 [112].
(b) section 44 of the SRC Act operates to extinguish ‘certain actions for damages under the Whistleblower protections that fall within s 44 [of the SRC Act]’;[41]
[41]UAB 46 [114].
(c) ‘neither the SRC Act nor the Corporations Act protect the Whistleblower protections from the operation of s 44 of the SRC Act’;[42]
[42]UAB 46 [115].
(d) in contrast with s 24 of the Public Interest Disclosure Act 2013 (Cth) (‘PID Act’), the Whistleblower protections do not include a provision shielding their operation from ‘other Commonwealth legislation’;[43]
(e) accordingly, the Whistleblower protections ‘remain exposed to a “legislative side wind”’ (particularly, s 44 of the SRC Act);[44] and
(f) as the Whistleblower protections were drafted with the provisions of the PID Act ‘in mind’, Parliament must have intended that s 44 of the SRC Act should operate in conjunction with the relevant part of the Whistleblower protections.[45]
[43]UAB 46–7 [116]–[117].
[44]UAB 47 [117].
[45]Ibid.
Ultimately, her Honour concluded that —
As matters currently stand, Mr Mishra’s claim for damages under the Whistleblower protections has no real prospect of success. It is extinguished by s 44 of the SRC. I reject his submission that it does not fall within s 44 as it is not a claim for damages but a claim for compensation. On his own pleadings, he claims for loss and damage. As outlined above, s 1317AE permits damages to be awarded. For the reasons I have discussed above, Mr Mishra’s claim falls squarely within s 44 of the SRC. He can only pursue the claim if he makes an election under s 45 of the SRC. As discussed above, he is not currently eligible to make that election as he has not established a permanent impairment.[46]
[46]UAB 50 [125]. See also UAB 54 [137].
As I have generally indicated, it is regrettable that her Honour was not given the benefit of submissions in respect of practically all of the authorities relied upon by the parties in the appeal. Indeed, her Honour seems to have been told that there were no authorities directly on point.
C. The appeal
The plaintiff’s further amended notice of appeal relevantly states the following grounds of appeal —
1.The learned Primary Judge erred in construing the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in holding that conduct that occurred in a meeting between an employer and an employee in relation to their contractual relationship arose out of or in the course of employment and that there was no reasonable prospect of success in a court finding to the contrary.
2.The learned Primary Judge erred in construing the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in holding that conduct that occurred in a meeting between an employer and an employee in relation to their contractual relationship arose out of or in the course of employment and that a full examination of the relevant facts was not warranted such that the employee’s case could be summarily dismissed.
...
4.The learned Primary Judge erred in failing to properly construe the text of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to hold that the words a claim for damages in s 44 therein encompassed a statutory claim made under the Whistleblower protections of the Corporations Act 2001 (C’lth) and that there was no reasonable prospect of success in a court finding to the contrary.
5.The learned Primary Judge erred in holding that the harmonious construction of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the Whistleblower protections of the Corporations Act 2001 (C’lth) required the extinguishment of the Plaintiff’s claim under the Whistleblower protections of the Corporations Act 2001 (C’lth) and that there was no reasonable prospect of success in a court finding to the contrary.
6.The learned Primary Judge erred in holding that the Safety, Rehabilitation and Compensation Act 1988 (Cth) fully extinguished the Plaintiff’s claim under the Whistleblower protections of the Corporations Act 2001 (C’lth) and that there was no reasonable prospect of success in a court finding to the contrary.
7.The learned Primary Judge should have followed the decision in Comcare v Friend [2024] FCAFC 4 that held that the Safety, Rehabilitation and Compensation Act 1988 (Cth) extinguished causes of action for negligence for personal injuries sustained in the course of employment and thereby did not extinguish statutory causes of action under the Whistleblower protections of the Corporations Act 2001 (C’lth).
8.The learned Primary Judge should have granted leave to the Plaintiff to amend their further amended statement of claim dated 22 September 2022 to plead a claim for compensation pursuant to the Whistleblower protections of the Corporations Act 2001 (C’lth).[47]
[47]UAB 3–4 (emphasis in original).
The plaintiff and first defendant filed and served extensive written submissions.[48]
[48]UAB 650–71.
The written submissions of the first defendant direct argument to the plaintiff’s various grounds as follows —
(a) the finding or conclusion that injury arose in the course of the plaintiff’s employment (grounds 1 and 2);
(b) the finding or conclusion that s 44(1) of the SRC Act operates to extinguish any claim for damages brought under the Whistleblower protections (grounds 4, 5, 6 and 7); and
(c) a failure to grant leave to the plaintiff to amend the further amended statement of claim (ground 8).
The plaintiff did not take issue with the above grouping of the issues. Indeed, that grouping might be thought to have assisted in guiding the oral arguments of counsel at the hearing of the appeal.
In that connection —
(a) the main point addressed by both parties concerned the Whistleblower protections and s 44 of the SRC Act;
(b) although counsel for the plaintiff sought to maintain it as a separate point, the contention concerning her Honour’s finding of injury in the course of employment had a subsidiary quality to it and was addressed relatively briefly by both counsel;[49] and
(c) neither counsel directed oral argument to the alleged error in failing to grant leave to amend.[50]
[49]See T21–2, 60–6.
[50]While counsel for the plaintiff did not expressly abandon the point, the atmosphere and dynamics at the hearing suggested that having seen the relevant written submissions of the first defendant the plaintiff had determined not to pursue the point. In other words, the point seemed implicitly to have been abandoned.
It follows that the plaintiff’s argument was largely directed to s 44(1) of the SRC Act, particularly the decision of the Full Court of the Federal Court in Friend and an earlier decision of the Full Court of the Federal Court in Romero v Farstad Shipping (Indian Pacific) Pty Ltd (‘Romero’).[51]
[51](2014) 231 FCR 403 (‘Romero’).
In that connection, counsel for the plaintiff submitted that —
(a) summary judgment should not have been granted, because the plaintiff’s damages claim is not extinguished by operation of s 44 of the SRC Act;[52]
[52]T1.
(b) in that regard, s 44 of the SRCAct applies only to ‘common law causes of action, and, in particular, common law torts causes of action’, and so does not apply to actions in respect of the Whistleblower protections;[53]
[53]T3.
(c) Friend is ‘a decision of an intermediate court of appeal’ that should be followed ‘unless it’s clearly wrong’;[54]
(d) Friend followed and applied Romero;[55] and
(e) whatever might be said about whether the relevant reasoning in Friend was unnecessary or obiter, the relevant reasoning in Romero was not obiter.[56]
[54]T4.
[55]T5.
[56]T9.
Counsel for the plaintiff addressed aspects of the Whistleblower protections, particularly ss 1317AC, 1317ADA, 1317AE, as well as the further amended statement of claim, and submitted that it was anomalous if s 44 of the SRC Act were presently engaged.[57]
[57]T10-13.
The written submissions of the first defendant addressed its various contentions in comprehensive terms.
In oral argument, senior counsel for the first defendant submitted that the bar in s 44 of the SRC Act was ‘not aimed at all aspects of the Whistleblowing provisions, but only claims that are made for damages for injuries’.[58]
[58]T35.
In respect of Friend and Romero, senior counsel summarised the submissions of the first defendant as follows —
… our essential argument on appeal is that the decision in Comcare v Friend, like the decision in Romero, preceded without reference to [a] range of prior decisions … which had discussed the scope of s 44 of the SRC Act or s 54 of the [Seafarers Rehabilitation and Compensation Act 1992 (Cth) (‘Seafarers Act’)]. And to that can be coupled a point which I will come back to, which is that in Comcare v Friend, the operation of s 44 was agreed between the parties and therefore not argued before his Honour Justice Wheelahan, or precisely the Full Court. Justice Wheelahan giving the judgment that the others agreed in.
And so, at least in a technical sense, based on various statements of the High Court as to the rules of precedent, Comcare v Friend stands for very little. There is a construction of a section, not even directly in issue in the proceeding, agreed between the parties, not argued before his Honour, on which his Honour, as part of his reasoning, gives his views as to how it operates, and there’s authorities that I will come to that say that effectively that is of no [precedential] weight.
But our more important point requires me to go back and trace through some of the prior cases ultimately leading to the High Court decision in Attorney-General for Victoria v Andrews [(‘Andrews’)][59] which considered the constitutional validity of aspects of the SRC Act and in which our submission is a necessary part of the reasoning was that s 44 would apply to claims beyond those for common law negligence, and therefore is directly inconsistent with Comcare v Friend, and is in fact the authority which Your Honour is bound by on this application.[60]
[59](2007) 230 CLR 369 (‘Andrews’).
[60]T37–8.
Senior counsel for the first defendant then turned to several further cases,[61] and submitted that the premise in each case, directly or indirectly, was that s 44 of the SRC Act or s 54 of the Seafarers Act ‘extend[s] to claims for breach of contract’. That said, senior counsel acknowledged that none of those cases said anything ‘about a further extension to statutory claims’, and so described the decision of the High Court in Andrews as ‘the most important of the decisions to our argument’.[62]
[61]Pearce v Crown Equipment Pty Ltd (ACT Supreme Court, Gallop J, 26 May 1995) (‘Pearce’); Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297 (‘Georgiadis’); Commonwealth v Mewett (1997) 191 CLR 471 (‘Mewett’); Smith v ANL Ltd (2000) 204 CLR 493 (‘Smith’).
[62]T42.
Senior counsel then addressed the issue raised in Andrews; namely, whether, by reason of s 51(xiv) of the Constitution, ss 104(1), 108(1) and 108(7)(a) of the SRC Act were invalid. Indirectly, that issue provoked consideration by the High Court of various parts and provisions of the SRC Act, including Part IV, ss 44 and 45.
In that connection, in Andrews, Gummow, Hayne, Heydon and Crennan JJ stated as follows —
66If a State law such as s 7(1)(a) of the Victorian Insurance Act is to be so construed as to impose an obligation by reference to a liability under the common law, that State law is not, in the absence of a contrary indication, to be construed as addressed to liabilities as they exist after the operation upon the common law of ss 44 and 45 of the federal statute. No such contrary indication appears. Further, s 7 is a penal provision. The Court should not strain to discern such an indication.
67A better reading of the expression “the employer’s liability … at common law” in s 7(1)(a) would include the common law liability as modified by the “capping” provisions of the Victorian Compensation Act. But, if so, nothing then turns upon the point. This is because those “capping” provisions in their application to Optus are rendered invalid by s 109 of the Constitution.
68The words “or otherwise” in s 7(1)(a) of the Victorian Insurance Act are apt to include obligations of strict liability arising from State statute, particularly laws imposing safety requirements in the workplace such as those considered in the well-known authorities of O’Connor v S P Bray Ltd and Sovar v Henry Lane Pty Ltd. No such State legislation has been said in argument to have any relevant application to Optus.
69The form of words in s 44(1) of the federal statute includes any “other proceeding for damages” and so is apt to remove both the “common law” liability and liability arising “otherwise” within the sense of s 7(1)(a) of the Victorian Insurance Act. It is true that s 44 does not apply where the election is made under s 45 of the Commonwealth Compensation Act but what is then permitted is the limited form of action spelled out in s 45.
70As remarked earlier in these reasons, in some instances federal law may assume the continued operation of State law and the common law of Australia as modified by State law. However, here the common law upon a particular topic, including the responsibilities of Optus to its employees and its liability to an action or other proceeding for damages, has been removed by s 44 of the federal law, subject to the election regime established by s 45. The federal law cannot be said to assume the continued operation of the common law, so as to preserve it for the attachment of obligations imposed by State law.
71The result thus is reached that there is no obligation of Optus to which s 7(1)(a) of the Victorian Insurance Act attaches the requirement of compulsory WorkCover insurance in respect of an injury, loss or damage suffered by, or in respect of the death of, an employee of Optus after the licence under the Commonwealth Compensation Act came into force. That is not to say that s 7(1)(a) is invalid. But that section must be read having regard to the federal law’s impact upon the common law and upon the Victorian Compensation Act, especially upon s 82 and the “capping” provisions of s 134AB. When it is observed that a corporation licensed under the Commonwealth Compensation Act is liable to pay compensation and other amounts under the federal Act in respect of injury, loss or damage suffered by, or in respect to the death of, its employees which occurs after the licence comes into effect, but is not otherwise liable at common law or under the Victorian Compensation Act, the premise for the engagement of s 7(1)(a) of the Victorian Insurance Act is to that extent not satisfied.
In respect of that passage, in particular, senior counsel for the first defendant submitted that —
(a) ‘the dispositive reason[ing] of the High Court … depends upon s 44 [of the SRC Act] having a broader operation’;[63]
(b) the relevant parts of Friend and Romero are contrary to Andrews and therefore wrong and should not be followed;[64] and
(c) the Court is bound to follow Andrews.[65]
[63]T49.
[64]T50.
[65]T51.
That said, senior counsel acknowledged that the ‘lynchpin’ of the submission was that the first defendant’s ‘reading of Andrews is the correct one’.[66]
[66]Ibid.
Senior counsel for the first defendant also addressed the subsequent decision of Basten JA (McColl JA agreeing) in Waters v Commonwealth (‘Waters’),[67] particularly the following passage —
23The second and final manner in which the applicant sought to avoid the operation of s 44(1) was to assert that her claim was for breach of the contract of employment and not for damages for personal injury. This argument, too, must be rejected.
24Section 44(1) in its terms is not limited to causes of action in tort or for breach of statutory duty, as distinguished from breach of contract. It precludes actions or other proceedings for damages “in respect of … an injury”. The applicant’s contention in this respect not only lacks support in the statutory language, but would undermine the apparent purpose noted above, namely to exclude actions or proceedings for damages for injury coextensively with the scope of the statutory scheme for payment of compensation. The argument based on the existence of a cause of action for breach of contract (in contrast to the earlier argument) does not rely upon an absence of entitlement to compensation but rather ignores the consequence of its existence, namely that a claim for damages is to be available in circumstances where statutory compensation is also available. Acceptance of the submission would fundamentally undermine the clear legislative purpose of s 44(1).
[67](2013) 274 FLR 338 (‘Waters’).
Senior counsel submitted that there was a ‘very direct clash’ between Waters and Romero/Friend.[68]
[68]T52.
After restating the overall submission in summary, senior counsel more briefly addressed various ‘short points’ concerning Romero and Friend (particularly, that the relevant passages of reasoning are obiter rather than ratio) as well as some ‘textual points’ concerning Part IV of the SRC Act, particularly s 44.[69]
[69]T54–9.
In reply, counsel for the plaintiff directed attention to —
(a) several paragraphs of Friend – in respect of which he submitted that the first defendant’s contention was ‘overstated’;[70] and
(b) context and other features affecting the reasoning of Basten JA in Waters.[71]
D. Relevant statutory provisions
[70]T68–70.
[71]T70–2.
Whistleblower protections
As I have noted, the Whistleblower protections are contained within pt 9.4AAA of the Corporations Act. The presently relevant sections are ss 1317AA to 1317AE (inclusive).[72]
[72]In argument, counsel for the first defendant confirmed that ss 1317AD(1)(a) and 1317AE(1)(a) were introduced by the Treasury Law Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth): T66. It was implicitly common ground that the presently relevant form of ss 1317AA to 1317AE appears in the Joint bundle of authorities prepared by the parties.
It is not in dispute that, within the meaning of s 1317AA, the plaintiff was an ‘eligible Whistleblower’.[73] It follows that, in respect of a ‘disclosure of information’, he is capable of qualifying for ‘protection’ under pt 9.4AAA.
[73]UAB 86 [11A]. Cf UAB 68–9 [11A].
Section 1317AB provides, among other things, that a person who makes a disclosure that qualifies for protection under pt 9.4AAA is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure.
Section 1317AC is entitled ‘Victimisation prohibited’ and provides, relevantly, as follows —
Actually causing detriment to another person
(1)A person (the first person) contravenes this subsection if:
(a)the first person engages in conduct; and
(b)the first person’s conduct causes any detriment to another person (the second person); and
(c)when the first person engages in the conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(d)the belief or suspicion referred to in paragraph (c) is the reason, or part of the reason, for the conduct.
Section 1317AC(2) is directed to threats to cause detriment to another person.
The Whistleblower protections provide that a failure to comply with ss 1317AC(1) or (2) is an offence and that both sub-sections are also civil penalty provisions.
Section 1317AD is entitled ‘Compensation and other remedies — circumstances in which an order may be made’.
Section 1317AD(1) provides, relevantly, that —
(1)A court may make an order under section 1317AE in relation to a person (the first person) if:
(a)the first person engages in conduct (detrimental conduct) that:
(i)causes any detriment to another person (the second person); or
(ii)constitutes the making of a threat to cause any such detriment to another person (the second person); and
(b)when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(c)the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct.
Section 1317ADA defines ‘detriment’ as follows —
In sections 1317AC and 1317AD, detriment includes (without limitation) any of the following:
(a)dismissal of an employee;
(b)injury of an employee in his or her employment;
(c)alteration of an employee’s position or duties to his or her disadvantage;
(d)discrimination between an employee and other employees of the same employer;
(e)harassment or intimidation of a person;
(f)harm or injury to a person, including psychological harm;
(g)damage to a person’s property;
(h)damage to a person’s reputation;
(i)damage to a person’s business or financial position;
(j)any other damage to a person.
Section 1317AE is entitled ‘Compensation and other remedies — orders that may be made’ and provides, relevantly —
(1)For the purposes of subsections 1317AD(1), (2) and (2A), a court may make any of the following orders:
(a)an order requiring the first person to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct;
(b)if the court is satisfied that the first person engaged in the detrimental conduct in connection with the first person’s position as an employee:
(i)an order requiring the first person to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct, and an order requiring the first person’s employer to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct; or
(ii)an order requiring the first person and the first person’s employer jointly to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct; or
(iii)an order requiring the first person’s employer to compensate the second person, or any other person, for loss, damage or injury as a result of the detrimental conduct;
(c)an order granting an injunction, on such terms as the court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct;
(d)an order requiring the first person to apologise to the second person, or any other person, for engaging in the detrimental conduct;
(e)if the second person is or was employed in a particular position and the detrimental conduct wholly or partly consists, or consisted, of the termination, or purported termination, of the second person’s employment—an order that the second person be reinstated in that position or a position at a comparable level;
(f)if the court thinks it is appropriate—an order requiring the first person to pay exemplary damages to the second person, or any other person;
(g)any other order the court thinks appropriate.
(2)If the detrimental conduct wholly or partly consists, or consisted, of terminating or purporting to terminate a person’s employment (including detrimental conduct that forces or forced the person to resign), the court must, in making an order mentioned in paragraph (1)(a) or (b), consider the period, if any, the person is likely to be without employment as a result of the detrimental conduct. This subsection does not limit any other matter the court may consider.
SRC Act
Broadly speaking, the SRC Act is directed to workers’ compensation as well as the rehabilitation of employees of the Commonwealth and Commonwealth authorities. It was essentially common ground that —
(a) the plaintiff is (or, was) an ‘employee’ (as defined); and
(b) the first defendant is a Commonwealth authority.
Part I of the SRC Act is entitled ‘Preliminary’. Within that part, s 4 defines ‘damages’ inclusively, as follows —
any amount paid under a compromise or settlement of a claim for damages, whether or not legal proceedings have been instituted, but does not include an amount paid in respect of costs incurred in connection with legal proceedings.
Section 5A defines ‘injury’ —
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B states the definition of ‘disease’ and s 6 addresses particular aspects of the expression ‘arising out of or in the course of employment’.
Part II of the SRC Act is entitled ‘Compensation’. Broadly speaking, pt II is directed to aspects of the liability of Comcare to pay compensation in respect of injuries suffered by employees.
Part IV is entitled ‘Liabilities arising apart from this Act’. Within that part, s 44 is entitled ‘Action for damages not to lie against Commonwealth etc in certain cases’, and provides, relevantly —
(1)Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a)an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b)the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
Section 45 provides, in substance, that before any amount of compensation is paid in respect of injury, an employee may —
… elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.
In that event, in substance, compensation is not payable after the date of the election, and s 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against, relevantly, the Commonwealth authority, for non-economic loss in respect of the injury.
Later provisions in pt IV concern claims against third parties, including recoveries.
E. Consideration
It will be evident that the plaintiff’s primary argument is —
(a) directed to her Honour’s finding that s 44(1) of the SRC Act extinguishes his claim for damages for psychological harm; and
(b) based particularly in the reasoning of Wheelahan J in Friend (with whom Rangiah and Goodman JJ agreed).
It will also be evident that —
(a) the present argument was not presented or developed below;[74]
(b) the first defendant did not contend that the argument ought not now be received;[75] and
(c) indeed, the first defendant advanced its own argument that, for the most part, was also not presented or developed below.
[74]Noting, of course, the email sent by the plaintiff’s solicitors after the decision was reserved and prior to her Honour’s delivery of judgment: UAB 672.
[75]I do not mean to suggest that such a submission would likely have been accepted.
Friend concerned a recovery proceeding brought pursuant to s 48 of the SRC Act. The primary issue was whether a settlement payment made in respect of a sexual harassment or discrimination complaint under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) was beyond the terms of s 48 of the SRC Act.
In that instance, the respondent had made a compensation claim pursuant to the provisions of the SRC Act (which was later accepted) and also complained under the provisions of the AHRC Act. In September 2020, the respondent’s employer (the Australian Federal Police) and the Commonwealth entered into a deed of release with the respondent pursuant to which she received a settlement sum. Comcare later gave notice of an intention to recover part of the settlement sum. The issue was whether the settlement sum constituted ‘damages’ within the meaning of s 48 of the SRC Act.
In that connection, his Honour undertook a comprehensive review of aspects of the legislative history, structure and provisions.[76]
[76]Friend (n 22) 620–6 [6]–[27].
In particular, his Honour noted that the Minister for Social Security speaking to the Bill had noted that ‘common law actions against the Commonwealth will be replaced by … comprehensive benefits’.[77] That, of course, was a partial reference to what became s 44 of the SRC Act, which his Honour subsequently addressed, together with reference to relevant authority.
[77]Ibid 620 [7].
His Honour also reviewed relevant provisions of the AHRC Act and other relevant legislation, particularly s 46PO(4) of the AHRC Act, which concerns orders that may be made by a court in respect of ‘unlawful discrimination’.[78]
[78]Ibid 626–8 [28]–[35].
In that connection, his Honour referred to aspects of the respondent’s complaint made under the provisions of the AHRC Act (including in respect of consequential psychiatric injury) and its subsequent settlement.[79]
[79]Ibid 629–32 [37]-[45].
His Honour then turned to, and summarised, the relevant reasoning of the primary judge below, particularly that —
(1)The respondent’s AHRC complaint and her claim for damages thereunder was not precluded by s 44 of the SRC Act. In arriving at this conclusion, his Honour applied Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403 … at [103]-[110] (Allsop CJ, Rares and McKerracher JJ), where it was held that ss 54 and 55 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) …, which correspond to ss 44 and 45 of the SRC Act, did not preclude a seafarer from pursuing an application in the Court based upon an allegation of discrimination in contravention of the Sex Discrimination Act: … . This was not an issue that was disputed by Comcare before the primary judge, and is not in issue on the appeal.
(2)The scheme of Pt IV of the SRC Act was to substitute the liability of Comcare to pay statutory compensation, as provided for by s 44(1), in lieu of the common law claims that a Commonwealth employee would otherwise have against a Commonwealth employer or other employees in respect of an injury sustained in the course of employment: … . In relation to an employee, the one exception was where the employee elected under s 45 to make a claim for damages for non-economic loss against the employer: … .
…
(4)It would be an odd construction of s 48 of the SRC Act to hold that it was intended to apply to damages recoverable by an employee against the Commonwealth, as his or her employer, on a statutory cause of action under s 46PO(4)(d) of the AHRC Act, when the SRC Act does not provide for any compensation to be payable for damage suffered because of conduct that is a breach of s 15(2) of the Disability Discrimination Act or s 14(2) of the Sex Discrimination Act: … .
(5)The gateway to the application of s 48 was that the employee must recover damages in respect of an injury “in respect of which compensation is payable under this Act”, as s 48(1)(a) provides. Therefore, Comcare had to establish that some of the damages that the employee recovered were in respect of an injury in respect of which compensation is payable under the SRC Act: … .
…
(8)The liability under s 48(3) of the SRC Act to pay Comcare the amount of compensation or the amount of damages recovered, whichever is the lesser, arises only in relation to those causes of action for damages that s 44(1) provides do not lie against the Commonwealth, a Commonwealth authority, or a licensed corporation in respect of an injury sustained by an employee in the course of which the employer would be liable for damages: … .[80]
[80]Friend (n 22) 632–4 [46].
His Honour thereafter addressed —
(a) the single ground of appeal;[81]
(b) the competing submissions of the parties;[82] and
(c) the issues to be determined on appeal, particularly whether s 48 of the SRC Act applies only to claims for damages of the kind abrogated by s 44.[83]
[81]Ibid 635 [47].
[82]Ibid 635–8 [48]–[59].
[83]Ibid 638 [60], 639–47 [66]–[90].
In connection with the latter issue, his Honour referred to a series of relevant provisions of the SRC Act, including s 44, as well as the reasoning in Romero at first instance, and on appeal (which, as his Honour noted, concerned similar provisions of the Seafarers Act).[84]
[84]Friend (n 22) 639–42 [66]–[73].
After noting that the reasoning in Romero was undoubted by the parties and accepted to be applicable to s 44 of the SRC Act, his Honour expressed agreement with the conclusion of the primary judge that ‘an order for damages … on account of unlawful discrimination is outside the scope of s 48’.[85]
[85]Ibid 642 [73]–[75].
In that connection, his Honour stated his own reasons, relevantly as follows —
77Section 44 of the SRC Act provides that “an action or other proceeding for damages” does not lie against the Commonwealth, a Commonwealth authority, or a licensed corporation in respect of a compensable injury. Applying the Full Court’s decision in Romero, damages paid in compromise of a complaint to the AHRC alleging unlawful discrimination are, as a product of statutory construction that has regard to context and purpose, outside s 44. Such a complaint, or any proceeding that follows that complaint, is not “an action or other proceeding for damages” for the purposes of s 44, because it is not a common law action for damages of the type contemplated by the provision. It is clear that Pt IV of the SRC Act includes dependants’ claims within the concept of common law actions for damages notwithstanding that they owe their existence to statute. The term “common law” appearing in the extrinsic material and in the headings to ss 46, 47, and 50, is sensitive to context, and in this context it is used to distinguish claims for damages that involve establishing common law negligence or breach of statutory duty in order to found a claim for damages from other claims that are based in statute, such as no-fault compensation. That is a delineation that is well understood, and so much is clear from the explanatory memorandum to the 2001 amendments to which I referred … above. It is also clear from the fact that dependants’ claims are included within the text of ss 46, 47 and 50, which refer to “common law claims” in their headings. These headings, which were introduced by the 2001 amending Act, form part of the Act, and are indicative of the type of claims with which Pt IV is concerned. Of special significance are the headings above ss 46 and 47 which contain the notice requirements in relation to common law claims against, respectively: (a) third parties; and (b) the Commonwealth, Commonwealth authorities, licensed corporations and other employees.
78Section 48, which is concerned with the recovery of damages “in respect of” a compensable injury or death, should be construed in its surrounding context. The words “in respect of” may have a wide meaning, but as with other words and expressions, the meaning depends very much on the context in which it is found: State Government Insurance Offıce (Qld) v Rees (1979) 144 CLR 549 at 561 (Mason J), cited with approval in Workers’ Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 at 647 (Wilson and Gaudron JJ). In the latter case, Deane, Dawson and Toohey JJ at 653-654 stated that undoubtedly the words “in respect of” have a wide meaning, but that “the phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends”.
79The definition of “damages” … is important, because it includes “any amount paid under a compromise or settlement of a claim for damages”. For the purposes of s 48, a claim for damages would include at least any claim for damages that falls outside the preclusion brought about by s 44, which would encompass claims against third parties, and claims by dependants. But in my view, coherence requires that the references to “damages” in s 48 and in the definition of “damages” in s 4(1) are to damages of the type with which the other provisions of Pt IV of the SRC Act including ss 44, 46, 47 and 50 are concerned, namely damages recoverable in common law actions for damages. To put it another way, the recovery of damages in respect of an injury to an employee is a recovery of damages where the injury is the subject-matter of the cause of action because damage is the gist of a common law cause of action in negligence. A complaint to the AHRC alleging unlawful discrimination is different. Its foundation is not the injury but the unlawful discrimination. This point was made by Basten JA in Gardiner v Laing O’Rourke Australia Construction Pty Ltd at [40] in relation to the Anti-Discrimination Act 1977 (NSW) when considering its operation in the context of the New South Wales workers’ compensation legislation. That is not to say that an injury as a consequence of unlawful discrimination may not be the subject of the assessment of statutory damages under s 46PO(4)(d) of the AHRC Act. But the damages are to be characterised as being in respect of the unlawful discrimination, because that is the gist of the claim. This was in substance the point made by Marshall J at first instance in Romero at [52] in reasons with which the Full Court agreed.
His Honour thereafter addressed several further points, including —
(a) any potential for ‘over-compensation’;[86]
(b) the prospect that there may be ‘no necessary correlation’ between damages assessed under the AHRC Act and compensation paid under the SRC Act;[87] and
(c) the risk of a ‘chilling effect’ upon the making of discrimination complaints if the appellant’s submissions were to be accepted.[88]
[86]Friend (n 22) 644–5 [80]–[84].
[87]Ibid 645–6 [85].
[88]Friend (n 22) 646 [86].
For the reasons variously identified, his Honour concluded that the recovery of a payment made in compromise of a discrimination or sexual harassment complaint under the AHRC Act was ‘outside the terms of s 48’.[89]
[89]Ibid 647 [89].
It will be evident that the reasoning in Friend was affected significantly by the history and terms of the legislation, as well as the reasoning of the earlier and differently constituted Full Court of the Federal Court in Romero.
In that context, as I have earlier noted, the first defendant submitted that the reasoning in both Romero and Friend was, at best, obiter dicta, and, in any event, contrary to binding authority, particularly Andrews.
Romero concerned claims made by the appellant against her employer (the respondent) under the Sex Discrimination Act 1984 (Cth), as well as for breach of the contract of employment. The respondent cross-appealed; contending that the appellant’s claims were precluded by s 54(1) of the Seafarers Act.
As noted by Wheelahan J in Friend, there are ‘slight but immaterial differences of expression’ between s 54(1) of the Seafarers Act and s 44(1) of the SRC Act.[90] In Romero, the appellant did not appeal from the primary judge’s dismissal of her sex discrimination claim.
[90]Ibid 640 [67].
In that context, the Full Court (Allsop CJ, Rares and McKerracher JJ) accepted that a policy of the employer formed part of the contract of employment and had been breached. Consequently, the Court was required to consider the cross-appeal.
In respect of the cross-appeal, the Court adopted the reasons given by the primary judge for rejecting the employer’s contention in respect of s 54 of the Seafarers Act, and stated, relevantly —
105The primary judge referred to the Second Reading Speech on the introduction of the Seafarers Rehabilitation and Compensation Bill 1992 (Cth) in which it was stressed that common law negligence actions were counter-productive to the fundamental objectives of the Act, which were “to help injured employees rebuild their lives and return to employment as quickly as possible”. It was explained that the new legislation would restrict common law actions against an employer or fellow employee to non-economic losses and cap the amount of damages that a court may award. Similar sentiments were expressed by members at the second reading of the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth) where “the common law negligence action which bases its entitlement on proof of fault” was deemed “a costly, inefficient and inappropriate mechanism for compensating injured workers”.
106His Honour was satisfied that it was plain that the Parliament did not intend that the SRCA should have the effect which Farstad contended, namely, to bar an action for breach of contract to which injury was largely incidental. In reaching that conclusion his Honour applied the same process of reasoning expressed in South Australia v McDonald (2009) 104 SASR 344 at [196] and [204] by Doyle CJ, White and Kelly JJ in respect of the Workers Rehabilitation and Compensation Act 1986 (SA). The central focus of s 54 of the SRCA was to ask what was being claimed. The answer to that question, according to the primary judge (at [50]), was that Ms Romero claimed a breach of the SDA which, alone, gave the Court jurisdiction. Her contractual claims fell under its accrued jurisdiction. He concluded (at [53]) that s 55 of the SRCA did not arise in the case before him.
107There is no doubt that the claim by Ms Romero in the proceeding below was a claim “in respect of” an alleged breach of the SDA as well as a claim for breach of contract in the Court’s accrued jurisdiction. As the Second Reading Speech makes clear, s 54 of the SRCA is plainly directed towards personal injury claims brought under the common law.
108To the primary judge’s reasoning may be added the observation that s 6 of the SRCA provides:
6 Injuries suffered by employees
A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee for which compensation is payable under this Act.
(Emphasis added.)
109Clearly damages either under the SDA and the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) or at common law for breach of contract are not compensation “payable under this Act” (ie the SRCA). The claim under the SDA is only capable of being pursued by virtue of s 46PO of the AHRCA.
110Further, there could not possibly be any discernible policy reason to exclude such claims from the industry in which these parties were participants.
It will be clear enough, that the above reasoning focused on the nature of the claim made (in that instance, under the Sex Discrimination Act, as well as in breach of contract) and, from that point, a consideration of whether such claims may be caught by the terms of s 54 of the Seafarers Act which, as the Court noted, is ‘plainly directed towards personal injury claims brought under the common law’. In that instance, as the Full Court noted in its reasons, claimed injury was no more than ‘incidental’ to the claim for breach of contract.
In that context, senior counsel for the first defendant submitted that anything said in Romero concerning the application of s 54 of the Seafarers Act to ‘the statutory claim’ was technically obiter, albeit that what was said about the breach of contract claim was ‘part of the ratio’.[91]
[91]T54.
It will be evident that, in Romero, the respondent contended that s 54 of the Seafarers Act barred both claims. For the purposes of that argument, no distinction seems to have been made between the claims. In the circumstances, it is hardly surprising that the Full Court came to determine the argument responsive to the manner in which it was evidently advanced.
Similarly, senior counsel for the first defendant submitted that the relevant reasoning in Friend was, at best, obiter. Indeed, in tone, at least, the submission might be thought to have amounted to the contention that the Full Court in Friend had engaged in an entirely unwarranted frolic, particularly in respect of s 44 of the SRC Act.[92]
[92]T37–8.
In large part, that submission was founded in those parts of the reasoning in Friend that highlight the parties’ acceptance of the reasoning in Romero and that such reasoning might be applied to s 44 of the SRC Act.[93]
[93]See, in particular, Friend (n 22) 632–3 [46(1)], 642 [73].
However, other aspects of the reasoning in Friend suggest that the applicability of the reasoning in Romero and the ambit of s 44 cannot have been entirely agreed and therefore ‘not argued’.[94] In particular, it is evident that —
(a) the appellant advanced submissions directed to differences in language between ss 44, 45 and 48 of the SRC Act;[95] and
(b) presumably in response, the respondent emphasised the reasoning in Romero and submitted that s 48 should be construed accordingly.[96]
[94]T37.
[95]Friend (n 22) 635–6 [48]–[51].
[96]Ibid 637 [55].
In short, the appellant seems formally to have accepted the relevant reasoning in Romero, while at the same time seeking partially to distinguish it and so limit the extent of its ultimate application in Friend. Forensic gambits of that kind are far from unfamiliar.
In any event, that endeavour seems plainly to have required the Full Court in Friend to consider and address both the reasoning in Romero and the proper operation and construction of s 44. In that context, the submission that the Full Court was involved in some kind of unwarranted frolic strikes me as a little unfair.
In the end, whatever might be said about whether or not the relevant reasoning in Romero and Friend should be considered to be part of the respective ratios, the fact remains that, even if either or both be obiter, the relevant reasoning was required and was undoubtedly seriously considered.[97] Whether that is presently a strictly applicable consideration or not, the obiter dicta of an intermediate appellate court should presently be given great weight.[98] Further, in each case the relevant reasoning was confirmatory of an earlier decision of a Federal Court judge at trial.[99]
[97]Cf Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 150–1 [134], 155 [147], 159 [158]; R v Keenan (2009) 236 CLR 397, 409 [35].
[98]Hill v Zuda Pty Ltd (2002) 275 CLR 24, 34–5 [25]–[26].
[99]Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCA 439; Friend v Comcare (2021) 308 IR 445. In Romero, the Full Court stated that the cross-appeal should be dismissed for the reasons given by the primary judge, and added further reasons of its own: Romero (n 51) 433–4 [103]. As earlier noted, in Friend, Wheelahan J expressed agreement in the conclusion of the primary judge that an order for damages ‘on account of unlawful discrimination is outside the scope of s 48 of the SRC Act’, but expressed his own reasons for that conclusion (in which the other members of the Full Court agreed): Friend (n 22) 642 [75].
For those reasons, it would be bold for a trial judge sitting in this Court to simply dismiss the apparently settled approach of the Federal Court in the manner broadly suggested in argument.
In any event, for reasons to which I will shortly come, fundamental elements of the relevant analyses in Romero and Friend seem to me to have been both correct and presently applicable.
In that context, of course, the particularly pointed submission of the first defendant was that Romero and Friend were each contrary to binding authority, particularly Andrews.
In part, that submission was directed to several cases in which it was contended that it had been determined that s 44 of the SRC Act (or s 54 of the Seafarers Act) operates to bar injury claims based in negligence, as well as breach of contract. In argument, particular reference was made to Georgiadis v Australian & Overseas Telecommunications Corporation (‘Georgiadis’), Commonwealth v Mewett (‘Mewett’) and Waters.[100]
[100]Pearce (n 61); Georgiadis (n 61); Mewett (n 61); Smith (n 61); Waters (n 67).
Some of the cases referred to by the first defendant might be thought to make the point more directly than others, although it is plainly made in Waters.[101]
[101]Senior counsel for the first defendant noted that, in Waters, the applicant referred to breaches of certain statutory provisions. That said, senior counsel very fairly acknowledged that the reasons of the Court of Appeal of New South Wales focus upon the claims made in negligence and for breach of contract: T52.
Common law actions for damages in respect of injury are, of course, very commonly founded in claims of negligence and breach of statutory duty. It is, however, not uncommon for such claims to include an allied pleading directed to breach of contract.
Despite technical differences in the legal character of such claims, in practice they are very often run at trial as one; and, whichever way the issue comes to be approached, the only relief sought is damages for injury.
In that sense, such claims have long fallen under the umbrella description of ‘common law actions’ for damages for injury suffered in the course of employment.[102] That has been the case since well before the enactment of, what seems later to have become, the SRC Act.
[102]Wheelahan J made essentially the same point in respect of statutory claims made by, or on behalf of, dependants: Friend (n 22) 642–3 [77].
It might be thought to follow from the above that it is hardly surprising that various courts, called upon to consider the matter directly or indirectly, have considered common law claims for damages for injury based in pleadings of negligence and breach of contract to be caught by s 44 of the SRC Act (or s 54 of the Seafarers Act).
In any event, neither the present case, nor Friend, involves a claim in contract of that kind, and, of course, the Full Court in Romero identified that the claim in respect of injury was ‘largely incidental’ to the action for breach of contract.[103]
[103]Romero (n 51) 434 [106].
For those reasons, it does not seem to me to be necessary finally to determine whether the relevant aspect of Romero might be thought to be contrary to any of the authorities identified in argument.
Further, it seems to me to be unlikely that the substance of the proposition presently sought to be attributed to those cases was not considered by the Full Court in Friend. After all, the reasons of Wheelahan J refer specifically to Austral Pacific Group Ltd (in liq) v Airservices Australia (‘Austral’)[104] and pick up the expression ‘annihilating effect of s 44’ there used by Gleeson CJ, Gummow and Hayne JJ.[105] That part of the reasoning in Austral includes significant reference to, and discussion of, Georgiadis, and Mewett is also cited shortly before that passage of reasoning commences.[106]
[104](2000) 203 CLR 136 (‘Austral’).
[105]Friend (n 22) 621–2 [16]-[17]. Cf Austral (n 104) 145–6 [22].
[106]Austral (n 104) 143 [13], 144–6 [18]-[22].
In the circumstances, it seems to me to be much more likely that the Full Court in Friend did not consider Georgiadis and Mewett to displace the relevant reasoning in Romero, or to stand as any impediment to the conclusions reached in Friend concerning s 44 of the SRC Act and statutory claims of unlawful discrimination.
As I have noted, none of the cases relied upon by the first defendant, including Waters, were said to confirm the application and effect of the relevant statutory bar beyond common law claims in negligence and breach of contract, with the specific exception of Andrews.
That brings me to the reasons of Gummow, Hayne, Heydon and Crennan JJ in Andrews.
As I have earlier noted, the first defendant submitted that Romero and Friend are contrary to Andrews and that I am presently bound to follow Andrews. That said, senior counsel acknowledged that the ‘lynchpin’ of the submission is that the first defendant’s ‘reading of Andrews is the correct one’.[107]
[107]T50–1. See also T54.
I have earlier referred to the circumstances presented in Andrews, and extracted the relevant passage of reasoning of Gummow, Hayne, Heydon and Crennan JJ.[108]
[108]See above at [49].
In respect of that reasoning, senior counsel for the first defendant described [63] to [69] as ‘critical’, and submitted that it had been determined that all ‘common law and statutory liabilities in relation to injuries are also removed by the s 44 bar’.[109]
[109]T45, 48.
The relevant reasoning in Andrews necessarily approaches the present issue somewhat indirectly, via the expression ‘at common law or otherwise’ appearing in s 7(1)(a) of the Accident Compensation (WorkCover Insurance) Act 1993 (Vic). It is in respect of that expression that, at [68], the majority in Andrews refers to ‘obligations of strict liability arising from State statute’ and thereafter refers to authorities concerning breach of statutory duty.
As senior counsel for the first defendant acknowledged in argument, such actions are based in tort.[110] In particular, such an action does not depend directly on the statutory provision concerned; rather, it depends upon a discernible legislative intent giving rise to a correlative private right.[111] I should add that such claims are well within the usual umbrella of ‘common law actions’ long pursued for damages in respect of injury suffered in the course of employment.
[110]T47.
[111]O’Connor v SP Bray (1937) 56 CLR 464, 478.
It follows that the relevant reasoning of Gummow, Hayne, Heydon and Crennan JJ in Andrews, cannot be said to be squarely directed to the present issue. While the reasoning could be said to contemplate commonly pursued ‘common law actions’, for damages for injury suffered in the course of employment, including those in respect of breach of statutory duty, there is not really anything in it which suggests that their Honours could have had in contemplation an action of the kinds considered in Romero, Friend or the present case.
In Romero, Friend and the present case, the foundation of the particular action is not common law, but Commonwealth statute. In each case, the relevant statutory provisions proscribe certain conduct.
In the present instance, the Whistleblower protections proscribe ‘detrimental conduct’ in respect of a ‘protected disclosure’.
In that connection, as I have earlier noted, ‘detriment’ is defined to include a wide array of conduct including, specifically, dismissal of the employee, injury of an employee, alteration of the employee’s position or duties to disadvantage, discrimination, harassment or intimidation, harm or injury to a person, damage to a person’s property, reputation, business or financial position and any other damage to a person.[112]
[112]Whistleblower protections [n 10] s 1317ADA.
As I have also earlier noted, ‘detrimental conduct’ is an offence and the provision is a civil penalty provision.[113]
[113]Ibid s 1317AC(1).
In that context, upon a finding of ‘detrimental conduct’, the court ‘may’ make an array of remedial orders,[114] including —
[114]Whistleblower protections [n 10] s 1317AD(1).
(a) an order requiring the person to compensate the other person, ‘or any other person’, for ‘loss, damage or injury suffered as a result of the detrimental conduct’;[115]
[115]Ibid s 1317AE(1)(a).
(b) an order for injunctive relief on ‘appropriate’ terms in order to ‘prevent, stop or remedy the effects of the detrimental conduct’;[116]
[116]Ibid s 1317AE(1)(c).
(c) an order requiring the person to apologise to the other person, ‘or any other person’, for engaging in the detrimental conduct;[117]
[117]Ibid s 1317AE(1)(d).
(d) an order requiring the reinstatement of a person whose employment has been terminated;[118]
(e) an order for exemplary damages;[119] and
(f) ‘any other order the court thinks appropriate’.[120]
[118]Ibid s 1317AE(1)(e).
[119]Ibid s 1317AE(1)(f).
[120]Ibid s 1317AE(1)(g).
It may be noted that even though ‘detrimental conduct’ is established by demonstrating one or more forms of ‘detriment’, a finding of ‘detrimental conduct’ does not necessarily entitle the claimant to any of the forms of remedial orders identified; including an order requiring a person to compensate another for consequential ‘loss, damage or injury’.
It will also be evident that such an action is no more an action for orders for consequential ‘loss, damage or injury’ than it is an action for injunctive relief, apology, reinstatement, exemplary damages or any other order thought appropriate. It is, in truth, an action in respect of proscribed ‘detrimental conduct’, upon the finding of which the Court ‘may’ make a range of remedial orders, including for consequential ‘loss, damage or injury’.
In contrast with such an action, s 44 bars ‘an action or other proceeding for damages … in respect of an injury sustained by an employee in the course of his or her employment’. Such words seem no more apt to bar an action of the present kind than the similar words and circumstances considered at first instance and on appeal in Romero and Friend.
In that regard, whilst it may well be that in many cases a subset of the facts relevant to establishing an action under the Whistleblower protections could also stand to establish that an employee has suffered an injury in the course of his or her employment, it does not follow that an action in respect of ‘detrimental conduct’ is properly to be characterised as ‘an action or other proceeding for damages … in respect of an injury sustained by an employee in the course of his or her employment’ and therefore barred by s 44 of the SRC Act. To me, the character of a claim brought in respect of ‘detrimental conduct’ and the ambit of the statutory bar are quite different (even if it may be that, in some cases, including the present, upon a finding of ‘detrimental conduct’ an order for consequential ‘loss, damage or injury’ might be sought and made).[121]
[121]I note the various further submissions of the first defendant concerning other textual features of pt IV of the SRC Act, particularly s 44(1)(b) and the terms of various surrounding provisions, as well as the submissions directed to the claimed risk of ‘overcompensation’. In my view, none of the other textual features displace the presently central focus upon whether the claim is one for damages in respect of injury in the course of employment. That is the plain terms of s 44(1)(a) of the SRC Act. I should add that the scenario postulated in the written submissions of the first defendant – ie, that statutory compensation is claimed after an award of damages is obtained – is rarely seen in practice: UAB 669 [54]. In any event, claimed risks of overcompensation are not infrequently apprehended in respect of statutory schemes of compensation, and experience demonstrates that a combination of the terms of the particular scheme and general principle regularly permit of a solution. To some extent, that is highlighted in the reasons of Wheelahan J in Friend at [80]-[84]. I do not consider the present risk to be likely to be of a dimension sufficient properly to displace the plain terms of s 44(1)(a) to which I have referred.
In that general context, it might be thought unsurprising that the Full Court in Romero was unable to discern a policy reason for the application of such a statutory bar to an action in respect of such statutorily proscribed conduct and, of course, no different view was expressed in Friend.[122]
[122]Indeed, as I have earlier noted, Wheelahan J referred to the potential for a ‘chilling effect’ upon compromises of discrimination or sexual harassment complaints; which his Honour identified as giving ‘reason to pause’ before accepting the appellant’s submissions: Friend (n 22) [86].
I should add that while senior counsel for the first defendant submitted that the effect of s 44 of the SRC Act was to extinguish a claim under the Whistleblower protections only ‘insofar as those claims were for damages for injuries’, and therefore that the bar could take effect and leave standing those elements of a statutory claim directed to relief such as apology and reinstatement,[123] it will be evident from what I have already said that such a submission would seek to characterise the statutory action as comprising as many actions as there are different claims for relief which, in my view, is inaccurate.
[123]T35. Cf UAB 47 [119(a)], 669–70 [58]–[59].
More broadly, at least in respect of the Whistleblower protections, it hardly seems likely that the Commonwealth parliament enacted the present form of those provisions well after the enactment of the SRC Act but, at the same time, intended that a very significant part of those later enacted provisions should immediately stand inoperative in respect of Commonwealth employees.
In that regard, I acknowledge that, in argument below, attention was directed to a ‘shielding’ provision in the PID Act, as well as the absence of such a section in the Whistleblower protections.[124] However –
[124]UAB 43–7 [107]–[117].
(a) the Full Court decided Romero in December 2014;
(b) while the Full Court in Romero directly considered the statutory bar appearing in s 54 of the Seafarers Act, the differences between the terms of that provision and s 44 of the SRC Act are presently immaterial;
(c) in that connection, the Full Court in Romero referred specifically to the ‘sentiments expressed’ at second reading of the Bill that, after subsequent enactment, ultimately came to be the SRC Act;
(d) in about 2018, the Whistleblower protections were amended largely into their present form;[125] and
(e) the presently applicable form of the Whistleblower protections was completed by amendment in about 2019.[126]
[125]UAB 43 [107]. Cf T33.
[126]T66.
Those circumstances do not suggest that the absence of a ‘shielding’ provision in the Whistleblower protections should be thought to be a conclusive feature, even if the relevant provisions of the PID Act were evidently in contemplation at the time at which the Whistleblower protections were enacted into their presently relevant form.
For the reasons which I have endeavoured to outline, the substance of the plaintiff’s primary contention must be accepted.
In the circumstances, while it will be evident that I have misgivings about the manner in which the point the subject of the plaintiff’s second substantive complaint came ultimately to be determined, it is presently unnecessary to decide the point.
F. Conclusion
The appeal must be allowed.
It follows that, at least, order 1 made on 13 May 2024 must be set aside.
I will hear from the parties concerning the appropriate form of orders and any consequential issues, including costs.
14
0