| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2022 00385
BETWEEN:
| ABHISHEK MISHRA | Plaintiff |
| v | |
| NBN CO LTD (ABN 86 136 533 741) | First Defendant |
| ERNST & YOUNG (A FIRM) | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 December 2023 |
DATE OF RULING: | 27 March 2024 |
CASE MAY BE CITED AS: | Mishra v NBN Co Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 146 |
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PRACTICE AND PROCEDURE — Application for summary judgment — Personal injury — Claim for compensation pursuant to s 1317AE of the Corporations Act 2001 (Cth) — Claim for compensation pursuant to Whistleblower protections under pt. 9AAA of the Corporations Act 2001 (Cth) —Whether claim extinguished by s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) — Action for damages – In the course of employment – Comcare determinations – Administrative Appeals Tribunal proceeding — No election per s 45 of the Safety,Rehabilitation and Compensation Act 1988 (Cth) — Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141 — Waters v Commonwealth of Australia [2013] 274 FLR 338 — BDR21 v Australian Broadcasting Corporation (2023) 167 ACSR 504 — Statutory interpretation — Harmonious construction — Claim extinguished — No real prospect of success — Not in the interests of justice to proceed to trial — Summary judgment allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Levine of counsel | Matrix Legal |
| For the First Defendant | Mr P Liondas SC with Mr J Waller of counsel | Webb Henderson |
| For the Second Defendant | No appearance | K&L Gates |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Evidence............................................................................................................................................... 1
Background......................................................................................................................................... 1
Mr Mishra’s claims.......................................................................................................................... 12
NBN’s application............................................................................................................................ 14
Is Mr Mishra’s damages claim extinguished by operation of s 44 of the SRC Act?........... 15
‘Arising out of, or in the course of the employee’s employment’.............................. 16
Comcare’s determinations and submissions made at the AAT.................................. 25
Does s 44 of the SRC Act extinguish Mr Mishra’s damages claim under the Whistleblower protections?............................................................................................................ 30
Mr Mishra’s claim for non-economic loss under the Wrongs Act............................. 42
Should Mr Mishra’s damages claim be allowed to proceed to trial per s 64 of the CPA?. 42
Does Mr Mishra’s damages claim have no real prospect of success?.................................... 44
Conclusion......................................................................................................................................... 45
HER HONOUR:
Abishek Mishra seeks damages and compensation from his former employer NBN Co Ltd (‘NBN’) and former tax advisor Ernst and Young (‘EY’). This ruling determines NBN’s application for summary judgment regarding part of Mr Mishra’s claim.
Summary
The questions for determination and their answers follow.
(a) Is Mr Mishra’s damages claim (defined below) extinguished by operation of s 44 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’)? Yes.
(b) Should Mr Mishra’s damages claim be allowed to proceed to trial per s 64 of the Civil Procedure Act 2010 (Vic) (‘CPA’)? No.
(c) Is it the case that Mr Mishra’s damages claim has no real prospect of success? Yes.
(d) Should there be summary judgment in favour…
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- AGLC
- Mishra v NBN Co Ltd [2024] VSC 146
- Case
- [2024] VSC 146
- Decision Date
CaseChat Overview and Summary
The court had to determine whether Mishra's claims for compensation were extinguished by s 44 of the Safety, Rehabilitation and Compensation Act, which pertains to claims against Commonwealth entities. The court also needed to assess whether it was in the interests of justice to grant summary judgment to NBN Co Ltd, considering the nature of Mishra's claims and the applicable statutory provisions. The court considered precedents such as Zlateska v Consolidated Cleaning Services Pty Ltd and Waters v Commonwealth of Australia, which dealt with similar statutory interpretations and the extinguishment of claims.
The Federal Court found that Mishra's claims were indeed extinguished by s 44 of the Safety, Rehabilitation and Compensation Act. The court held that Mishra's claims for compensation under the Corporations Act were not independent of the Commonwealth's statutory compensation scheme, and thus fell within the scope of s 44. Additionally, the court determined that there was no real prospect of success for Mishra's claims and that it was not in the interests of justice to proceed to trial. Consequently, the court granted NBN Co Ltd's application for summary judgment.
The court's final order was that the application for summary judgment was granted, and the claims made by Mishra against NBN Co Ltd were dismissed. The court found that Mishra's claims were extinguished by the provisions of the Safety, Rehabilitation and Compensation Act, and that proceeding to trial would not be in the interests of justice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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