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…

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 Co Ltd

Details

AGLC: Mishra v NBN Co Ltd [2024] VSC 146
Case: [2024] VSC 146
Decision Date: 27 March 2024

CaseChat Overview and Summary

In Mishra v NBN Co Ltd, the Federal Court was asked to consider an application for summary judgment by the defendant NBN Co Ltd against the plaintiff Mishra. Mishra claimed compensation for personal injuries sustained in the course of his employment, invoking both s 1317AE of the Corporations Act 2001 (Cth) and protections for whistleblowers under pt 9AAA of the same Act. NBN Co Ltd argued that Mishra's claims were extinguished by s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), and that there was no real prospect of success for Mishra's claims.

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