Moradi v Comcare

Case [2024] FCA 812

FEDERAL COURT OF AUSTRALIA

Moradi v Comcare [2024] FCA 812  

Review of: Moradi and Comcare [2022] AATA 3168
File number(s): VID 628 of 2022
Judgment of: MCEVOY J
Date of judgment: 24 July 2024
Catchwords: WORKERS’ COMPENSATION – “Injury” – interpreter deployed to Nauru – deployment terminated prematurely – whether liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Comcare can rely on the reasonable administrative action defence in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – appeal dismissed with costs.
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43, 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 24, 27, 64
Cases cited:

Canute v Comcare (2006) 226 CLR 535

Comcare v Drinkwater [2018] FCAFC 62; (2018) 260 FCR 150

Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220

Commonwealth Bank of Australia v Reeve [2012]

FCAFC 21; (2012) 199 FCR 463; (2012) 125 ALD 181

Drenth v Comcare [2012] FCAFC 86 (2012); 128 ALD 1

Golds v Comcare [1999] FCA 1481

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

Long v Comcare [2016] FCA 737

National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 204 FCR 436

Trewin v Comcare (1998) 84 FCR 171
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 52
Date of hearing: 16 August 2023
Counsel for the Applicant: Mr Hanks KC and Mr Carey
Solicitor for the Applicant: Angela Sdrinis Legal
Counsel for the Respondent: Ms Kidson KC and Ms Slack
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

VID 628 of 2022
BETWEEN:

YASMIN MORADI

Applicant
AND:

COMCARE

Respondent

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

24 JULY 2024

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of and incidental to this appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MCEVOY J

  1. By notice of appeal dated 21 October 2022 the applicant, Ms Yasmin Moradi, appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from two decisions of the Administrative Appeals Tribunal, made on 28 September 2022. Those two decisions, made in matters 2018/4986 and 2019/4964, affirmed two decisions of the respondent, Comcare, to deny liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for psychological injuries sustained by the applicant.

  2. The issue raised by the appeal concerns the manner in which the Tribunal applied the “reasonable administrative action” exception in s 5A of the SRC Act to exclude liability for the applicant’s claimed psychological ailment under s 14 of the SRC Act.

  3. For the reasons that follow I have concluded that the Tribunal’s approach to determining this issue was ultimately correct. It was consistent with…

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Details
AGLC
Moradi v Comcare [2024] FCA 812
Case
[2024] FCA 812
Decision Date

CaseChat Overview and Summary

In the case of Moradi v Comcare, the applicant, an employee of the Translation Interpretation Service (TIS), challenged the decision of Comcare, the Commonwealth's workers' compensation agency, regarding her eligibility for compensation after her deployment as a Farsi interpreter in Nauru was prematurely terminated. The dispute arose under the Safety, Rehabilitation and Compensation Act 1988 (Cth), specifically concerning whether the premature termination of her deployment constituted an "injury" warranting compensation and whether Comcare could rely on the reasonable administrative action defence. The Federal Court was tasked with determining whether the Tribunal's interpretation of the relevant statutory provisions was correct and if any legal errors were made in the Tribunal's decision.

The primary legal issue was whether the Tribunal correctly interpreted the concept of "injury" under the Act and applied it to the facts of the case. The Tribunal had found that the premature termination of the applicant's deployment did not constitute an injury for the purposes of the Act. Additionally, the court had to consider whether Comcare could rely on the defence of reasonable administrative action as a bar to compensation. The applicant argued that the Tribunal had erred by failing to distinguish between the applicant's employment and a benefit connected to her employment, and by not properly applying the statutory provisions.

The court found that the Tribunal's approach was consistent with the text, structure, and purpose of the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court upheld the Tribunal's interpretation of "injury" and rejected the applicant's argument that the Tribunal had confused the substance of her employment with a benefit connected to her employment. The court also determined that Comcare could rely on the defence of reasonable administrative action, as the decision to terminate the applicant's deployment was based on operational needs and was not arbitrary or capricious. The appeal was dismissed with costs.

The final orders of the court were that the appeal be dismissed and that the applicant pay the respondent's costs of and incidental to this appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of and incidental to this appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow I have concluded that the Tribunal’s approach to determining this issue was ultimately correct. It was consistent with the text, structure and purpose of the relevant provisions of the SRC Act and with the exposition of those provisions in the Full Court of this court. No error is revealed by the grounds advanced by the applicant and the appeal should be dismissed with costs. BACKGROUND The applicant was an employee of the Translation Interpretation Service (TIS) within the Department of Home Affairs (at the relevant time the Department of Immigration and Border Protection) for the purposes of s 5 of the SRC Act. She had been engaged on deployments as a Farsi (Persian) interpreter for periods of various lengths and in different locations since 21 August 2012. Relevantly in the present context, the applicant was engaged by the TIS for deployment to the island of Nauru, where the Department conducted a regional processing centre. The applicant’s deployment commenced on her arrival in Nauru on 17 December 2017 and was to be of eight weeks duration. The applicant was due to return to Australian on or about 8 or 9 February 2018. The applicant’s engagement was subject to a Deed of Standing Offer, which included clause 6.3.6 in the following terms:… the Department may provide the Service Provider notice of cancellation where the Service Providers Assignment is to conclude before the originally scheduled conclusion time. In such cases, the Department may provide notice to the Service Provider at any time advising of the revised time of conclusion. On 12 January 2018, the applicant and four other interpreters were informed by Ms Laura Richardson, the Head of Operations, that their Nauru deployments “would be ceasing early due to the requirement to reduce interpreters of certain language groups based on operational needs at that time” (12 January meeting). The applicant was informed that her deployment would end on 14 January 2018, approximately one month ahead of the time her original deployment was due to end. The decision to end the deployment of the relevant interpreters was explained in an email dated 11 January 2018 from Ms Victoria McLeod, the Operations Lead for the Department, to Ms Alison Thorne, a manager at TIS, and the affected interpreters in Nauru. This email stated:We have reviewed our resourcing requirements for interpreters and would like to advise you of some upcoming changes.Based on operational requirements, we are adjusting our interpreter allocation as outlined in the table below. As you can see, there is a reduced operational demand for some language groups and an increase for others.We have determined the new allocation based on the number of incoming job requests and other operational requirements such as accommodation pressures.We intend to maintain this allocation (30) for the foreseeable future and will request additional resources if and when required. Also in evidence before the Tribunal was a later email from Ms McLeod, dated 6 November 2018, which further explained how the decision was reached to terminate the deployment of the five interpreters in Nauru prematurely:There were a number of drivers for this change including accommodation constraints following a government of Nauru directive that all stakeholders immediately vacate RPC-1 as well as reduced demands for interpreter services in particular languages.Before making the decision to reduce numbers by 5, the ABF Operations Team in Nauru undertook a detailed analysis of job requests and found we had more interpreters on island than were needed to service requests. On this basis, we adjusted our resourcing requirements and advised TIS accordingly.The decisions about which interpreters would cease their deployments early were based on operational requirements (number of job requests) and we considered factors such as length of time in Nauru (i.e. those closest to their departure date would leave first), language ability (i.e. multiple languages preferred) and gender balance.The reduced number (30) was considered more than sufficient to cover job requests and resulted in interpreters having more jobs during the day. Since this reduction, we have maintained 30 interpreters on island and this is reviewed regularly.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows, therefore, that I reject the suggestion that the Tribunal confused the substance of the applicant’s employment with a benefit in connection with her employment such as to reveal a vitiating error of law.CONCLUSION The applicant’s grounds of appeal have not been made out. There is no relevant error in the Tribunal’s decision and her questions of law should be answered in the negative. The application will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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