O'Loughlin v Linfox Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

O’Loughlin v Linfox Australia Pty Ltd [2017] FCA 1394

Appeal from: O’Loughlin and Linfox Australia Pty Ltd [2016] AATA 606
File number: VID 1087 of 2016
Judge: O'CALLAGHAN J
Date of judgment: 28 November 2017
Catchwords: WORKERS’ COMPENSATION – Appeal from Administrative Appeals Tribunal – whether applicant entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – meaning of “injury” – whether injury arose “out of, or in the course of … employment” – conflict between certain provisions of Pts I and II of Div 1 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – consideration of which provisions are leading and which subordinate – notice of contention – whether Tribunal bound by reason of its findings of fact to hold that the applicant’s injuries did not arise out of, or in the course of, his employment – whether the Tribunal failed to deal with a submission, seriously advanced and worthy of consideration, on the relevance of Martin v Bailey (2009) 26 VR 270
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 6, 14

Federal Court Rules 2011 (Cth), r 36.24

Cases cited:

Canute v Comcare (2006) 226 CLR 535

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133

Comcare v Etheridge (2006) 149 FCR 522

Comcare v PVYW (2013) 250 CLR 246

Comcare v Tiscay (1992) 38 FCR 181

Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51

Deatons Pty Ltd v Flew (1949) 79 CLR 370

Institute of Patent Agents v Lockwood [1894] AC 347

Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544

Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203

Martin v Bailey (2009) 26 VR 270

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468

Minister for Immigration and Citizenship v Li (2003) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355

Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336

Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558

Thiele v Commonwealth (1990) 22 FCR 342

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 198; 82 ALR 175

Ward v Williams (1955) 92 CLR 496

Whittaker v Comcare (1998) 86 FCR 532

Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22

Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328

Date of hearing: 21 August 2017
Registry: Victoria
Division: General Division
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 105
Counsel for the Applicant: Mr A J Moulds QC and Ms K L Bradey
Solicitor for the Applicant:
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Details
Case
[2017] FCA 1394
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of O'Loughlin v Linfox Australia Pty Ltd involved a dispute concerning workers' compensation. The applicant, Mr. O’Loughlin, sought compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), asserting that his injury arose out of and in the course of his employment. The respondent, Linfox, contested this claim, arguing that Mr. O'Loughlin's injuries did not meet the criteria set forth in the Act. The primary legal issues revolved around the interpretation of sections 5A, 6, and 14 of the Act and whether the injury sustained by Mr. O'Loughlin qualified for compensation.

The court examined the interaction between sections 5A and 6 of the Act, particularly the scope and applicability of section 6. Linfox argued that section 6(3) was the restrictive provision that should apply to the facts of the case, while Mr. O'Loughlin contended that section 14 was the leading provision, and section 6 was facultative. The court found that section 6 is indeed a facultative provision, as confirmed by the High Court in Canute v Comcare, which indicates when an injury may be treated as arising out of employment. The court concluded that if section 14 applied, as it did in this case, there was no need to consider section 6 at all. Therefore, the court held that the Administrative Appeals Tribunal erred in relying solely on section 6(3) to deny Mr. O’Loughlin's claim for compensation.

Furthermore, the court rejected Linfox’s argument that the Tribunal should have affirmed its decision based on the findings of fact and uncontradicted evidence. The court found that the Tribunal failed to properly address Linfox’s submission regarding the relevance of Martin v Bailey, which pointed to the finding identified in ground 1. The court ruled that the Tribunal was bound to consider this submission, which was seriously advanced and worthy of consideration. The court concluded that the Tribunal should have found that Linfox was liable to pay Mr. O’Loughlin compensation in accordance with section 14 of the Act.

The appeal was allowed, the decision of the Administrative Appeals Tribunal was set aside, and the decision of Linfox was substituted with a determination that Mr. O'Loughlin was entitled to compensation pursuant to section 14 of the Act. Additionally, Linfox was ordered to pay Mr. O'Loughlin’s costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal dated 15 August 2016 be set aside.

3. The decision of the respondent of 7 January 2014 be set aside and substituted with a determination that the applicant is entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury which arose in the course of his employment on 7 September 2010.

4. The respondent pay the applicant’s costs of the appeal.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In those circumstances, it is unnecessary to burden these reasons with a detailed analysis of which version of s 6(1)(b) in fact applies in the particular circumstances of this case. Both parties contended, in their additional written submissions in response to my query about the matter, that the outcome is the same whichever version applies. In my view, that contention is correct, for the reasons set out above.Conclusion about the proper construction of ss 5A, 6 and 14 of the Act For all those reasons, in a given case under s 14 of the Act, when s 14 applies according to its terms, and there is therefore no dispute to put at rest, or to quell, about whether an injury arose out of, or in the course of, the employee’s employment, no occasion arises to have regard to s 6. Were it otherwise, as Linfox contends, it would be impossible to describe s 6 as “facultative”. It would, on the contrary, be “restrictive”. And it would not, applying the description of s 6 by the High Court in Canute, “indicate” anything – it would dictate; it would not be “non-exhaustive” – it would be exhaustive, at least whenever s 6(1)(b) applied; and it would read the word “may” (“an injury may be treated”) as if it said “must”. Because it is not contended that Mr O’Loughlin’s injuries were sustained during an ordinary recess, it follows that the “carve out” contained in s 6(3), upon which the Tribunal relied as the sole ground for dismissing Mr O’Loughlin’s application, has no role to play, and the Tribunal erred in law in finding to the contrary. Linfox’s other argument, namely that Mr O’Loughlin’s construction would allow an employee to elect whether or not an exception to the liability to pay compensation applied, by choosing whether to rely on s 6(1), must also be rejected. No issue arises about election. The starting point for any relevant inquiry in a case of this type is s 14 of the Act. If Linfox is liable to pay compensation under s 14(1), and that liability is not affected by the exclusions contained in s 14(2) or (3), then, subject to any other exclusions that may arise (s 17(2), for example, provides that if the employee dies without leaving dependants, compensation is not payable in respect of the injury), then liability to pay compensation in respect of the relevant injury remains. That is, no occasion arises to have regard to s 6. In my view, therefore, it is incorrect to assert that such an approach to the construction of s 14 permits an employee to “elect” to do anything. For those reasons, the Tribunal erred in holding that s 6(3) of the Act applied to the circumstances of this case. It ought to have found that Linfox was liable to pay Mr O’Loughlin compensation in accordance with the Act pursuant to s 14 of the Act.THE NOTICE OF CONTENTION Linfox says that the decision of the Tribunal should be affirmed, even if Mr O’Loughlin succeeds on the s 6(3) question (as he has), on these grounds:1.If, as contended in the Notice of Appeal, the Tribunal erred in its construction and application of s5A(1)(b), s 6(1) and s 6(3) of [the Act], the Tribunal was nevertheless bound, by reason of:(a)the Tribunal’s finding of fact; and(b)the uncontradicted evidence before the Tribunal;to find that the applicant’s injury had not arisen out of or in the course of his employment within s 5A(1)(b) of [the Act].2.The Tribunal failed to deal with the Respondent’s submissions, seriously advanced and worthy of consideration, which pointed to the finding identified in ground 1, citing the judgment of the Court of Appeal in Martin v Bailey [2009] VSCA 263.

Ratio Decidendi

Legal Principle Established

The effect of those submissions is that s 14 is the leading provision and s 6 is the subordinate: cf Institute of Patent Agents v Lockwood [1894] AC 347 at 360, quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [70]. The effect of Linfox’s submission is the opposite.CONSIDERATIONSection 6 of the Act is a facultative provision In Canute v Comcare (2006) 226 CLR 535 (Canute) at [8], the High Court observed that s 6 of the Act is a “facultative provision”, which “indicate[s] (in a non-exhaustive fashion) when an injury may be treated as having arisen out of, or in the course of, employment for the purposes of the Act”. The version of s 6 that applied in that case was for relevant purposes identical to the current version of the provision. The observation by the High Court that s 6 is a facultative provision is obiter dicta, but I am bound to, and I do, regard it as having great weight. The expression “facultative provision” is, of course, capable of meaning different things in different contexts. “Facultative” may describe the essential purpose of the provision. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, for example, Gleeson CJ and McHugh J (at [49]) described s 420 of the Migration Act 1958 (Cth), which provided that the Refugee Review Tribunal was “not bound by technicalities, legal forms or rules of evidence” and “must act according to substantial justice and the merits of the case”, as a provision that is “intended to be facultative, not restrictive”, its purpose being “to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law …”: see also, in a similar context, Minister for Immigration and Citizenship v Li (2003) 249 CLR 332 at [15] per French CJ. In another context, the word “facultative” may be used to describe a provision that does not impose a duty to act or is not mandatory. In Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51, Mason CJ recorded (at 63, referring to Ward v Williams (1955) 92 CLR 496 at 505) the Commissioner’s contention that the presence of the word “may” (in a statute that provided that the Commissioner “may” refund overpaid stamp duty) “attracts a prima facie presumption that the word is to be understood in its natural and ordinary sense, that sense being permissive or facultative only”. When used in that context, to describe a statutory provision (in that case s 111 of the Stamps Act 1958 (Vic)) as “facultative” is to characterise a provision by which the person or entity conferred with statutory power is not bound to exercise that power upon any particular occasion, or in any particular manner: cf Ward v Williams (1955) 92 CLR 496 at 505. In another context, the word “facultative” may be used to identify a statutory provision that is not intended to exhaust or constrain the situations in which a person or entity is empowered to act. In Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 563, for example, Dixon J described s 501(1) of the Local Government Act 1928 (Vic), which provided that “[t]he council of every municipality may in the name and on behalf of the municipality enter into contracts for the purposes of this Act and every such contract may be made … as follows …”, as “facultative or permissive in form and contains no expressions suggesting an intention to exclude the common law in so far as it enabled a corporation to contract”.