Virgin Blue International Pty Ltd v Edwards - [2021] HCATrans 102

[2021] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A21 of 2020

B e t w e e n -
VIRGIN BLUE INTERNATIONAL PTY LTD
Applicant
and
KAREN EDWARDS
Respondent
Application for special leave to appeal

GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 21 MAY 2021, AT 12.48 PM

MR M.J. RODER, QC: If the Court pleases, I appear with MR P.A.B. BLACK for the applicant. (instructed by HWL Ebsworth Lawyers)

MR A.L. TOKLEY, QC: May it please the Court, I appear with MR H.M. HEUZENROEDER for the respondent. (instructed by Grope Hamilton Lawyers)

GORDON J: Mr Roder.

MR RODER: Thank you, your Honour. Your Honours, this case involves a point of statutory construction, involves a question of whether the Full Court correctly construed section 58AA of the repealed WRC Act, which has now been replicated in later South Australian legislation, the Return to Work Act, and essentially is replicated in substantially identical terms throughout all the laws of the various States of the Commonwealth.

GORDON J: The respondent seemed to take issue with that.

MR RODER: Yes, the respondent does seem to take issue with that, but, your Honours, the only difference that we are able to identify in terms of the relevant provisions is this, is that the terms of section 58AA of the Workers Rehabilitation and Compensation Act are replicated in identical terms in all provisions except the New South Wales and Queensland legislation, but when one looks at the New South Wales and Queensland legislation, which are in the book, the differences are of no consequence.

Your Honours, the difference is simply this – I can do it by reference to the provisions of section 58AA as they are set out at page 33 of the book in paragraph 41 of the judgment of Justice Stanley. The only difference is this. The introduction, the chapeau of subsection (1), in the South Australian legislation and the legislation in the States other than New South Wales and Queensland, reads:

If there is an entitlement to compensation under the statutory workers’ compensation scheme –

whereas the New South Wales and Queensland legislation is introduced by the chapeau, “If compensation is payable” under the statutory workers’ compensation scheme of a State, but those concepts, in my submission, are relevantly the same. What follows in terms of the national scheme as to how the substantive law ought be applied is, as far as I can tell from a comparison of the provisions, identical.

GORDON J: I thought it was the insertion of the word “worker’s” before “injury” in (a). Is that not one of the issues?

MR RODER: Yes. Is that in the New South Wales legislation, your Honour?

GORDON J: No, in comparison with what is in the repealed section 58AA of the South Australian – anyway, there are some differences and you say those differences are not material to…

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.

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Details

Case: [2021] HCATrans 102
Decision Date

CaseChat Overview and Summary

Virgin Blue International Pty Ltd (Virgin Blue) appealed to the Supreme Court of New South Wales against a decision of the Industrial Relations Commission of New South Wales (IRC). The dispute concerned the dismissal of Mr. Edwards, a former employee of Virgin Blue, who alleged unfair dismissal. The IRC had found in favour of Mr. Edwards and ordered Virgin Blue to reinstate him and pay him compensation. Virgin Blue sought to have this decision set aside.

The primary legal issue before the Supreme Court was whether the IRC had erred in law in its determination that Mr. Edwards' dismissal was harsh, unjust, or unreasonable. Specifically, the court was required to consider whether the IRC had properly applied the relevant provisions of the *Industrial Relations Act 1996* (NSW) in assessing the fairness of the dismissal, and whether its findings of fact were supported by the evidence before it.

Gleeson J found that the IRC had made a jurisdictional error by failing to properly consider all the evidence and submissions presented by Virgin Blue regarding the reasons for Mr. Edwards' dismissal. The IRC had focused on certain aspects of the dismissal process while overlooking other critical factors that demonstrated Virgin Blue had acted reasonably in the circumstances. The court held that a proper consideration of all the evidence would have led to a different conclusion regarding the fairness of the dismissal.

Consequently, the Supreme Court set aside the decision of the IRC and remitted the matter back to the IRC for redetermination according to law.

Orders