Plaintiff v First Defendant

1 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.

2 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 of NBN regarding the damages claim? Yes.

3 NBN relies on the affidavit of its solicitor, Andrew John Christopher, sworn on 7 September 2023 ('Christopher affidavit').

4 Mr Mishra relies on the affidavit of his solicitor, Mark Stanarevic, affirmed 2 October 2023 ('Stanarevic affidavit').

5 Both parties filed written submissions and made oral submissions at the hearing of the proceeding.

6 On or about 24 August 2016, Mr Mishra and NBN entered into an employment agreement (the 'employment agreement'). NBN employed Mr Mishra in the position of Copper Activation Manager. The employment agreement included terms that Mr Mishra would be based in Melbourne, work 38 hours per week during normal hours and be remunerated $143,000 per annum (gross) plus superannuation.[1]

7 Mr Mishra says there were implied terms of the employment agreement pursuant to several provisions of the Fair Work Act (Cth) 2009, s 1317I of the Corporations Act 2001 (Cth), and relevant tax laws in both Australia and India.[2] Further, Mr Mishra says the terms of the employment agreement included NBN's policies, including its Whistleblower Policy (Public Interest Disclosure Act & Corporations/Taxation Administration Act). NBN denies its policies were incorporated into the employment agreement.[3]

8 On or about 8 November 2016, Mr Mishra and NBN agreed to vary the employment agreement to require him to work in Mumbai, India (the 'Indian assignment'). The Indian assignment was described as a 'long term assignment' and was initially effective from 25 November 2016 until 25 November 2018.[4] The letter from NBN to Mr Mishra dated 8 November 2016 outlining the terms of the long term assignment included the following:[5]

nbn adopts a tax equalisation methodology in relation to taxation for employees on International Assignments. Compliance with the tax equalisation process and any filing requirements is mandatory. The objective of tax equalisation is to ensure, to the extent possible, that you pay no more and no less income tax on nbn sourced employment income than you would have paid had you remained in Australia. nbn will be responsible for the payment of actual tax liabilities incurred on nbn soured income (including assignment allowances) in India or Australia Of relevant) for the duration of the assignment. You will be personally responsible for any home and host taxes arising on your personal income.

nbn will withhold hypothetical home country tax from your salary each month and will remit the actual tax liabilities incurred in Australia and/or India where required. Where bonuses are paid, hypothetical tax will be calculated and withheld also. At the end of each tax year, a tax equalisation reconciliation will be performed by EY. The amount of tax withheld by nbn will be compared to the amount of tax that would have been payable had you remained in Australia. The difference will then be required to be paid back to nbn, or reimbursed from nbn back to you. Please note this approach is limited to employment income and social taxes payable on nbn sourced income. [sic]

9 Mr Mishra says that the Indian assignment entailed provisions regarding NBN's tax obligations to him, which included that the NBN would do all things needed to fulfil and maximise his tax liabilities and circumstances in India.[6] NBN says that while it offered to provide assistance with Mr Mishra's tax liabilities in consultation with EY, it told Mr Mishra that it was his personal responsibility to make financial and tax arrangements appropriate to his circumstances.[7]

10 In or around August 2018, Mr Mishra was issued with an Australian Taxation Office Penalty regarding his 2016-2017 tax returns due to a failure to lodge any such returns in Australia. Mr Mishra became aware that he had not lodged tax returns in India (the 'tax issues').[8] He notified NBN of the tax issues and NBN directed him and his accountant, Yogesh Gupta, to discuss them with EY.[9]

11 On 7 November 2018, the Indian assignment was extended and, as will be discussed, it was extended another eight times.[10]

12 In or around November 2020, NBN states that, unrelated to the tax issues, it informed Mr Mishra that he was no longer required to work in India, and that it would commence the process of repatriating him to Australia.[11]

13 Mr. Mishra's repatriation process stalled due to travel difficulties. These difficulties related to the COVID-19 pandemic.. Specifically, Mr. Mishra had underlying health conditions, and was therefore medically advised to avoid travel.[12] The Indian assignment was subsequently extended once on 30 November 2020, and again on 16 February 2021.

14 In March 2021, NBN informed Mr Mishra that as a result of the restructure of his business unit, his role would be made redundant with an effective planned date of 23 April 2021.[13] Given Mr Mishra was considering staying in India after his employment with NBN ceased, he requested that the repatriation expenses he would have incurred had he travelled back to Australia instead be paid to him as a lump sum, along with his redundancy payment. NBN agreed with this in principle. [14] On 25 March 2021, Troy Cardoso-Vigors, a human resources partner at NBN, emailed Mr Mishra further to a discussion about the same:[15]

As discussed with you yesterday, I understand that you are considering between remaining in India and returning to Australia. Nbn remains committed to repatriating you, however at your request to enable you to make an informed decision, I agreed to provide you with the figures that would be applicable if you choose to remain in india.

If you choose to remain in India you will still be entitled to your redundancy payment. in addition to this, nbn will provide you with a gross payment of $25,000 that will rescind any contractual responsibilities in relation to your repatriation. If you choose this option we will require a deed which I will have prepared.

I understand you require some time to consider these two options. I will require a response from you by 9 am AEDT on Monday 29 March 2021. If you do not respond by this time, I will take it that you have decided to return to Australia with your entire family. At this point nbn will direct you to return to Australia and we will book your flights. [sic]

15 At 12:40am on 29 March 2021, Mr Mishra emailed Mr Cardoso-Vigors, outlining a range of matters, including his concern that the gross payment of $25,000 was not sufficient to meet relocation expenses and that with ongoing issues regarding his health and access to COVID-19 vaccinations:[16]

...the earliest I can plan to move to Melbourne seems end of July or first week of August 21. As previously discussed and agreed, my notice period will only commence once I have been relocated back to Melbourne safely [sic]

16 A meeting was held between Mr Mishra, Mr Cardoso-Vigors, and Ryan Murphy (another of NBN's human resources employees), on 30 March 2021.[17] NBN describes Mr Mishra putting forward a further offer regarding the repatriation lump sum, which NBN rejected.[18] Mr Mishra says that he found Mr Cardoso-Vigors and Mr Murphy to be uncooperative and that he was disappointed by their attitude. Further, that they told him they would prepare a deed for him to sign.[19]

17 On 19 April 2021, Mr Mishra emailed Mr Cardoso-Vigors noting it had been three weeks since their discussion; he was seeking an update. Mr Mishra also referred to an automated email he had received regarding an exit date of 23 April 2021. He requested that his exit date be extended while a plan for him going forward was being formalised.[20]

18 On 19 April 2021, the Indian assignment was extended again.

19 On 20 April 2021, Mr Mishra emailed Mr Cardoso-Vigors and Mr Murphy of NBN. The email was further to a meeting held that day.[21] In that email, Mr Mishra thanked them both for their discussion and provided a summary of it with reference to a redundancy payout, ex-gratia payment, and a 'last planned date of service 21st May'.

20 On 21 April 2024, Mr Murphy emailed Mr Mishra a draft deed.[22] Further to feedback from Mr Mishra, on 4 May 2021, Mr Murphy emailed Mr Mishra an updated deed with amendments including 'additional detail about tax advice'.[23]

21 On 7 May 2021, Mr Mishra emailed Mr Cardoso-Vigors and Mr Murphy stating that most aspects looked fine to him 'except the Ernst and Young Tax support part... they still [have] not done anything for the past years and we need to agree on a timeline of when they will do it. I have been chasing it for a few years without any luck.'[24] Mr Mishra alleges he participated in further meetings with Mr Cardoso-Vigors and Mr Murphy on 14 and 21 May 2021.[25]

22 Further emails in evidence of June 2021 demonstrate ongoing discussions regarding Mr Mishra's tax arrangements, which had not yet been resolved.[26] On 3 June 2021, Mr Cardoso-Vigors emailed Mr Mishra with a list of proposed actions with timelines inserted by EY.[27]

23 On 4 June 2021, Mr Mishra emailed Mr Cardoso-Vigors stating:

'Ryan [Mr Murphy] has kept me in the loop for the last one month about the work NBN is trying with E&Y to ensure that we can resolve the Taxation issues before we part ways'.[28]

24 NBN recounts this period and the communications with Mr Mishra as follows:[29]

While nbn investigated Abhi's concerns regarding EY, he was provided with a written extension from 31 May 2021 to 4 June 2021.

... nbn extended Abhi to 18 June 2021 while we continued to investigate Abhi's concerns regarding EY and his tax.

It became clear to nbn during this period that there were several problems with Abhi's tax history since commencing his expat assignment. We discovered that these problems also affected the other Indian expat employees. In summary, it appeared that tax had been withheld by nbn in Australia but that EY had filed tax returns indicating that the employees were non-resident in Australia for tax purposes, and no Australian tax had been paid. Also, no tax had been paid in India, nor Indian tax returns prepared. For Abhi, there was also an outstanding tax debt/fine in Australia for the tax year 2016/2017.

Throughout this period nbn was open with Abhi about the issues we were discussing with EY and nbn was committed to resolving them. [sic]

25 Mr Mishra continued negotiating with respect to the proposed deed to finalise matters. On 27 August 2021, Mr Mishra emailed Mr Cardoso-Vigors with additional feedback about the deed further to professional advice that he had obtained.[30]

26 NBN recounts in its letter to Comcare dated 21 January 2022, that 'it became clear that [NBN] was unable to draft a deed to [Mr Mishra's] satisfaction.'[31]

27 On 3 September 2021, a meeting occurred between Mr Mishra and agents of the first defendant (the '3 September 2021 meeting').[32] Mr Mishra says that NBN told him that it did not intend to sign a deed and that he would be retrenched in a week's time.[33] Mr Mishra was upset by this meeting and saw it as an abrogation of NBN's previous indications they would ensure a mutual agreed parting of ways:[34]

The way NBN handled this meeting and their complete reversal from previous commitments left me completely shattered, distressed and even brought tears to my eyes. The emotional impact of such unexpected events, coupled with the perceived disregard for my concerns, caused significant distress to me in the meeting.

28 In written correspondence to Comcare,[35] NBN rejects that it made any unreasonable revocation at the meeting, or that that it constituted surprise notice of Mr Mishra's retrenchment, noting that first foreshadowed as a possibility in November 2020, and then as a certainty in March 2021. Further, that NBN had been paying Mr Mishra's full salary and ex-patriate benefits for at least the previous nine months during which he had not worked.[36]

29 On 6 September 2021, Mr Mishra received advice from his tax agent, Yogesh Gupta. The advice stipulated that Mr Mishra may be liable for criminal prosecution in Australia and India, and that NBN and EY had acted fraudulently with regards to tax.[37] That same day, Mr Mishra forwarded the advice to senior executives at NBN.[38]

30 On 7 September 2021, Mr Mishra had what he describes as a mental breakdown.[39]

31 With respect to the 3 September 2021 meeting and follow-up emails to senior executives of the first defendant, Mr Mishra considers he acted as a Whistleblower. He describes:[40]

Upon learning about the findings from CA Yogesh Gupta, I was profoundly shocked, and emailed on 6 September 2021, this report to the senior management of NBN, including the CEO, CFO, and HR Head and which highlighted the stress and anxiety that I was suffering and that the NBN wanted to get rid of me as soon as possible. In doing so, I effectively became an internal whistleblower, shedding light on the unethical conduct surrounding my tax matters. I refused to accept the NBN unilaterally decision of 3" September 2021 to terminate my employment on 10" September 2021 without my resolving taxation matters. [sic]

32 On 21 September 2021, the India assignment was again extended.

33 On 24 November 2021, while still employed by NBN, Mr Mishra lodged a claim for workers' compensation to Comcare.[41] Mr Mishra made his application for psychological injury due to protracted issues surrounding tax, employment and repatriation. In his Comcare application form, Mr Mishra described the circumstances of his injury as follows:[42]

I have been under stress from mid May 2021 onwards, and it gradually kept on increasing, due to continuous delay by NBN in resolving my taxations matters and penalty waiver with ATO. They kept on promising that it will be resolved in a fortnight or so and along with that NBN wanted me to sign a DEED which could have provided immunity to both the parties from my expat contract. However, my taxation matters kept on dragging on for months for reasons best known to NBN and E&Y. I raised issue about my stress with NBN verbally several times that this delay in resolving my taxation issue is causing me a lot of stress as there was nothing pending from my side, and I really want to get this issue resolve, and want to move on with my future life. However, nothing got resolved and suddenly in first week of Sep 21, NBN decided to terminate my employment with a week notice and without any deed, with the last day to be 10th Sep 2021. This whole act of NBN caused me tremendous stress and was not able to understand that how come a Govt entity whose values are that - We care, can do such a thing to its own employee. I was not able to control or manage my thoughts and stress, I was not able to sleep. Over that weekend I engaged Taxation firm to review my Australian Tax records so that at least if I move back to Australia, I don't need to worry about tax issues in Australia apart from 2016-2017 penalty of ATO. His initial assessment which he provided to me was very shocking and really scared me that what had NBN and E&Y done to me. I forwarded these initial findings to NBN and how NBN has failed in its duty of obligation and care towards me which has put me into serious legal troubles in India and Australia. I emailed them that I will not accept NBN decision to terminate me till they resolve these taxation matters.

This whole situation caused me immense stress, anxiety, and depression as this has been going on since May, and on 3rd Sep 2021 after my meeting with NBN, I was in serious mental pressure and was not able to sleep. As I did not get any revert from NBN, on 7th Sep 2021 I realized that NBN will put this whole matter under the rug and will not to the right thing to resolve it. All this led to severe anxiety and depression, and I had mental breakdown on 7th Sep 2021. My wife took me to the clinic where they checked and spoke to me in length. They conducted several tests, and I was diagnosed with mental illness which has been caused due to all this trauma which been going on for months and got triggered on 7th Sep 2021. [sic]

34 Comcare arranged an independent medical examination. Consultant psychiatrist Associate Professor Saji Damodaran opined that Mr Mishra was suffering from 'adjustment disorder with mixed anxiety and depressed mood'.[43]

35 On 7 February 2022, Comcare wrote to Mr Mishra confirming that it declined his claim (the '7 February 2022 Comcare decision').[44] While Comcare accepted Mr Mishra had suffered an injury resulting in impairment or reduced capacity to work, and that his employment significantly contributed to this injury, he was precluded from compensation because his injury arose due to reasonable administrative action taken in a reasonable manner in respect of his employment.[45] Under s 5A(1) of the SRC Act, 'reasonable administrative management action' is an exception to Comcare's liability for a workplace injury.[46] In turn, the Comcare delegate stated in the 7 February 2022 Comcare decision that under s 114 of the SRC Act, Comcare is not liable to pay compensation for Mr Mishra's injury.

36 On 31 May 2022, Mr Mishra's solicitors, Matrix Legal, wrote to Comcare enclosing Mr Mishra's reconsideration form dated 24 May 2022, seeking a review of the Comcare 7 February 2022 decision.[47] (Matrix Legal act for Mr Mishra both in his Comcare claim and this proceeding.) Mr Mishra submitted that Comcare's decision ought to be reconsidered because Comcare had not considered all relevant information, including further evidence of the unreasonableness of NBN's conduct concerning Mr Mishra's employment and because he continued to suffer medical issues and was recently hospitalised as a result of his workplace injury.[48]

37 On 5 July 2022, Comcare provided Mr Mishra with the determination of his reconsideration request (the '5 July 2022 Comcare decision').[49] It affirmed the 7 February 2022 Comcare decision. In particular, it affirmed that any of NBN's actions that contributed to Mr Mishra's workplace injuries constituted reasonable administrative action precluding Mr Mishra from compensation under s 5A of the SRC. The 5 July 2022 Comcare decision stated:[50]

Reasonable administrative action includes actions that are undertaken and are directly related to your individual employment relationship such as counselling, assessing your performance, disciplinary action and decisions about your employment as a staff member.

In reviewing the evidence, it is clear that you were participating in administrative actions that affected your employment and were related to the terms and conditions of your employment. These actions were the proposed redundancy and the taxation issues.

Usually the management of an employee's taxation affairs are the responsibility of the employee and would not be considered to be part of 'employment' for the purposes of assessing compensation. However, I accept that in your circumstances, your Indian taxation affairs were at least in part, the responsibility of your employer. Your employer appears to accept that these affairs were not handled as expected and, while steps were taken to rectify the issue as soon as it was identified, full resolution took time and involved considerable contact between you and your employer. In this regard, while unusual, I find that the process engaged in between you and your employer relating to your Indian taxation affairs was reasonable administrative action.

In relation to the redundancy and negotiations around your separation from your employer, I find that this was also reasonable administrative action taken in respect of your employment.

...

On review of the documentation, it appears that the delay in finalising your taxation affairs was, while regrettable, not unreasonable in the circumstances. Additionally, at no stage is there any evidence to suggest you were personally going to experience criminal or pecuniary consequences as a result of the taxation issue. I am also persuaded by the fact that the taxation issue affected several employees who needed to be handled as a group. I therefore find that the administrative actions, namely the process of resolving your taxation affairs, were not taken in an unreasonable manner.

38 The 5 July 2022 Comcare decision also made the following findings regarding Mr Mishra's complaints about the 3 September 2021 meeting:[51]

It appears that you are contending that the particular actions which were not reasonable were the negotiations around your separation, including the meeting of 3 September 2021, and the delay in finalising the taxation issue.

Your lawyer has stated that the meeting was not reasonable as it was called 'catch up' but related to your employer's decision not to proceed with the Deed and to proceed instead with the redundancy. Objectively, I do not consider the subject of the email to have any significant relevance in determining whether the meeting was conducted in a reasonable manner or not. At the time of the meeting, you were still working out your separation and entitlements and therefore it would be reasonable that this may be discussed during this meeting. Whilst it is also acknowledged that you were visibly upset during this meeting, this does not constitute the meeting being conducted in a manner which would be considered unreasonable. Although it was a difficult conversation, it was reasonably required and there is no evidence to suggest that it was undertaken in an unreasonable manner. I therefore find the meeting of 3 September 2021 was taken in a reasonable manner.

39 On 2 September 2022, Mr Mishra lodged an application in the Administrative Appeals Tribunal ('AAT') for a review of Comcare's decision.[52] NBN's solicitors understand that the appeal has not yet been finalised.[53] Counsel for Mr Mishra said that the appeal is still pending.[54]

40 Mr Mishra's employment was terminated on 3 November 2022. NBN says this was by reason of the redundancy first communicated to Mr Mishra on 24 March 2021.[55] Mr Mishra agrees his employment was terminated on 3 November 2022; he dispute the reason for termination.[56]

41 Mr Mishra's claims are pleaded in his further amended statement of claim filed 28 September 2022 ('FASOC').

42 Mr Mishra alleges that NBN breached the employment contract and/or its fiduciary duties, as well as s 1317 of the Corporations Act 2001 (Cth) ('Corporations Act').[57]

43 Mr Mishra claims to be a Whistleblower who has made protected disclosures per pt 9.4AAA of the Corporations Act (the 'Whistleblower protections'). The protected disclosures allegedly relate to NBN's failure to pay Mr Mishra's tax liability in India and Australia from April 2021 to September 2021 (and continuing).[58] Mr Mishra says his disclosures constituted oral and written communications, and he particularises emails sent by him to officers and senior managers of NBN from 11 May 2021 to 8 September 2021 (the 'protected disclosures').

44 Mr Mishra particularises the detriment (or punishment, disciplinary action, detrimental action or detrimental conduct) he suffered for making the protected disclosures as follows (the 'detriment'):[59]

On 3 September 2021, the First Defendant at a meeting communicated to the Plaintiff that the Plaintiff's employment would be unilaterally terminated on 10 September 2021, when the Plaintiff and First Defendant had agreed that any such termination would be mutual and conditional on them entering into a deed. On 6 September 2021 at 11.14 the Plaintiff sent an email to the First Defendant complaining of his treatment.

From November 2021, the Defendant refused to pay the Plaintiff's home allowance in the sum of $AUD1,200 - $1,500 per month and a car/taxi allowance of $AUD1,800 - $2,000 per month.

45 Mr Mishra alleges that NBN retained EY to advise him on tax liabilities in Australia and India and that EY breached the terms of the retainer. He says EY breached its duty of care and/or fiduciary duties to him by, amongst other things, failing to lodge his tax returns on time or at all, failing to inform him that NBN had not done all acts and things necessary to pay his tax liabilities in India, and failing to inform him of his right to appeal assessments of income tax.

46 Mr Mishra disputes NBN's contention that his employment was terminated as a result of the redundancy of his position.[60] He says that there was an agreement to terminate his employment subject to the signing of a deed relating to his relocation expenses. However, Mr Mishra says that due to his disclosures to NBN's officers and managers as to NBN's failure to pay his tax liabilities in India and Australia, at the 3 September 2021 meeting NBN threatened to terminate his employment.[61] Mr Mishra considers that 'redundancy' was used as a 'pretext' to terminate his employment.

47 EY and NBN each deny they have acted unlawfully.[62] Alternatively, each seeks apportionment from the other as a concurrent wrongdoer.

48 NBN applies for summary judgment in respect of Mr Mishra's 'damages claim'. This claim is described by reference to paragraphs 11 and 11F of the FASOC, and paragraph 7 of Mr Mishra's particulars of loss and damage dated 2 August 2023 ('particulars'). Turning now to detail the 'damages claim'.

49 By paragraph 11, Mr Mishra alleges he suffered loss and damage as a result of NBN's breach of contract and/or fiduciary duties. He says that if NBN had complied with its duties then his tax returns in Australia and India would have been lodged, and any outstanding tax paid. Mr Mishra says that NBN's breach of contract and fiduciary duties caused him: to incur the costs of independent advice, and to pay the tax which should have been held in trust for him. It also exposed him to interest, costs and penalties on tax in both Australia and India, as well as to prosecution in either or both countries for failure to lodge and pay tax returns on time. He claims that he was unable to procure a mortgage loan because he had no up to date tax returns. By paragraphs 11(k), (l) and (m), he alleges loss and damage as a result of psychological harm (adjustment disorder with significant anxiety and severe depression), humiliation, damage to business and professional reputation, and loss of payment of home allowance and car payment of $3,500 per month from November 2021.

50 By paragraph 11F, Mr Mishra alleges he is entitled to compensation for the loss, damage or injury due to the detriment he has suffered. His claim for compensation is made pursuant to s 1317AE of the Corporations Act. He additionally refers to paragraphs 11 (k), (l) and (m), described above, and, in addition, says he has suffered loss of wages from 3 September 2021.

51 In paragraph 7 of the particulars, Mr Mishra claims 'Compensation for mental illness' he has suffered due to the detriment. Under this heading, he claims economic loss to be $5,236,518.23 for loss of income plus $438,600 for future health care costs, being a total of $5,675,118.23. He calculates his non-economic loss to be $664,640. Accordingly, the total calculation in paragraph 7 is $6,339,758.23.

52 NBN's solicitors sought confirmation that the loss and damage claimed as 'compensation for mental illness' in paragraph 7 of the particulars was only made regarding the claims under the Corporations Act, and not the claims for breach of contract and fiduciary duty in paragraph 11 of the FASOC.[63] Mr Mishra's solicitors gave this confirmation, stating that his 'claims for loss and damage is being made in respect of the claims made under the Corporations Act and are not being made as a result of the breach of contract and breach of fiduciary duties'.[64]

53 NBN applies for summary judgment of Mr Mishra's damages claim pursuant to s 62 of the Civil Procedure Act 2010 (Vic) ('CPA') and r 22.22(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules').[65] Mr Mishra opposes the application. EY does not wish to be heard on the application.

54 NBN pleads that if Mr Mishra suffered the loss and damage alleged in paragraph 7 of his particulars (summarised above) then an action for damages does not lie against NBN by s 44 of the SRC Act.

55 Turning now to the parties' submissions regarding this issue and its related considerations.

Is Mr Mishra's damages claim extinguished by operation of s 44 of the SRC Act?

56 The SRC Act applies to Mr Mishra's employment. NBN is a Commonwealth employer. Mr Mishra is an employee according to s 5 of the SRC Act.

57 The issue in dispute is whether Mr Mishra's damages claim is extinguished by operation of s 44 of the SRC.

Action for damages not to lie against Commonwealth etc. in certain cases

(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b) the loss of, or damage to, property used by an employee resulting from such an injury; whether that injury, loss or damage occurred before or after the commencement of this section.

59 In Austral Pacific Group Ltd v Airservices Australia[66] ('Austral'), Gleeson CJ, Gummow and Hayne JJ characterised s 44 as an extinguishment of, rather than a bar to, a cause of action.[67] NBN says that this characterisation applies here, in that 's 44 operate[s] to deny from the outset the existence of a cause of action'.[68]

60 Section 5A(1) of the SRC Act defines 'injury' as follows:

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

...

But does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

(emphasis added)

'Arising out of, or in the course of the employee's employment'

61 The parties dispute whether Mr Mishra has an injury arising out of, or in the course of his employment.

62 NBN says the alleged injury suffered by Mr Mishra is arising out of, or in the course of his employment for the following reasons:

(a) it is an injury as defined by s 5A(1) of the SRC Act because he pleads a mental injury which falls within the definition of 'injury' within s 5A(1)(b) of the SRC Act. If Mr Mishra proves his factual allegations, then he falls within this definition;

(b) he claims that the direct actions of his employer caused injury. The alleged injury bears both a temporal and causal connection with employment. The 3 September 2021 meeting, during which it was communicated that Mr Mishra's employment would be terminated on 10 September 2021, appears to be the substance of Mr Mishra's claim. The 3 September 2021 meeting was directly connected to his employment. Attending a meeting called by an employer is directly, if not incidentally, something which arises out of or is in the course of one's employment. Paragraphs 11D, 11E, and 11F of the FASOC plead that NBN's communications to Mr Mishra regarding the imminent termination of his employment on 3 September 2021, and the termination of his employee allowances in November 2021, caused him detriment. This alleged detriment is, however, not an injury or detriment that occurred between intervals of work, nor was it due to a state of being unemployed.[69] Mr Mishra was employed, and remained employed, by NBN after the meeting had taken place; and

(c) Mr Mishra's employment was ultimately not terminated until November 2022. This timing emphasises that the termination was not retaliatory action relating to the communications he alleges are protected disclosures under the Whistleblower protections.

63 Mr Mishra says his injury is neither arising out of, nor in the course of his employment, for the following reasons.

(a) his claim is an action for compensation for a detriment suffered due to making a protected disclosure under the Whistleblower protections;

(b) there must be a nexus between the injury and the duties of the employment for an injury to be considered as having occurred within the course of that employment. The protected disclosures related to the termination of Mr Mishra's employment, but were not within the course of his employment because they:

(i) had nothing to do with the course of his work, the duties that he performed, the conditions in which it was performed, or the ambit of his employment;

(ii) related to termination of employment or the threat or anxiety of litigation; and

(iii) the only link to employment is NBN's contractual liability to pay Mr Mishra's tax liabilities. That is not causative of his loss or damage and is too remote.

65 In Comcare v PVYW,[70] the High Court majority observed that statement of a general principle as to whether an employee is injured 'in the course of' the employee's employment was not an easy matter and that 'its application can prove even more troublesome.'[71] The High Court stated that it was 'essential to bear in mind the association which must necessarily exist (by virtue of the 'in the course of' limiter) between the circumstances in which the employee was injured and the employment.'[72] The High Court then considered authorities including Hatzimanolis v ANI Corporation Ltd,[73] where workers were injured during days off, intervals or breaks in work.

66 Mr Mishra relies upon Nazar v Hydro Electric Corporation[74] ('Nazar'), a decision of the Full Court of the Supreme Court of Tasmania. Chief Justice Blow and Estcourt J allowed an appeal by a worker seeking workers' compensation for an injury sustained while walking his dog on a muddy walking track. The worker was on call at the time and being paid for his time on 'Availability Duty'. The Full Court held this was not an interval case. Rather, the worker was injured in the course of his employment. [75] He had to be available to be called out, ready to respond in 15 minutes, and be in a fit state to respond.

67 Nazar is distinguishable from the circumstances here; so too the other authorities relied on by parties concerning workers injured during intervals or breaks in work.[76] Mr Mishra alleges he suffered detriment during his employment from the direct actions of his employer. However, there is a summary of general principles given by Blow CJ in Nazar that I readily accept:[77]

From these authorities, it is clear that an injury will occur in the course of a worker's employment if it occurs in one of the following situations:

• When the worker is performing his or her actual duties.

• When the worker is doing something that he or she is reasonably required, expected or authorised to do in order to carry out his or her actual duties.

• When, during an interval between periods of work, the worker is doing something induced or encouraged by the employer.

• When, during an interval between periods of work, the worker is at a place where the employer induced or encouraged him or her to be present, and is injured in circumstances that are the subject of the employer's inducement or encouragement.

68 In Zlateska v Consolidated Cleaning Services Pty Ltd[78] ('Zlateska'), the Court of Appeal considered whether a worker had suffered an injury 'arising out of employment' within the meaning of s 82 of the Accident Compensation Act 1985 (Vic). Given that the definition of injury in the SRC Act includes the phrase 'arising out of', this is a persuasive authority. The Court of Appeal stated that the words 'arising out of' the worker's employment 'have long been recognising as requiring a causal connection between the employment or its incident and the injury'.[79] In the circumstances under consideration, the Court of Appeal held that test would be satisfied if it was shown, on the balance of probabilities, that an injury to the worker was caused by the act or omission of the employer.[80] The Court clarified that: [81]

The question must always be: what caused the injury to this worker? Was it something done, or omitted to be done, which caused this worker to react in the way she did?

69 In Zlateska, the worker claimed compensation for injury following two discussions with her supervisor about an injury. Her appeal against the finding that her injury was not arising from employment was allowed. I accept Mr Mishra's submission; Zlateska is not authority for a general proposition that an injury arising from discussions with an employer is one arising out of employment. Each case must be considered on its facts. NBN contended, and I accept, that it is an example of a worker's injury arising from a meeting with her employer being considered to be an injury arising out of employment.

70 There were several authorities relied upon by Mr Mishra that related to a different question than the one here. They were concerned with aggravation injuries and whether employment was a contributing factor. They may be distinguished on that basis. Several concerned claims for an aggravation injury made after cessation of employment. I will address these authorities out of deference to the parties' extensive submissions.

71 Mr Mishra says that although the SRC Act provides definitions for 'employee' in s 5, and provides other definitions in s 4, it does not define 'employment'. Mr Mishra relies on Windeyer J's description of employment in Federal Broom Co Pty Ltd v Semlitch ('Federal Broom').[82] Windeyer J's statement is made in the context of construing s 6(1)(b) of the Workers Compensation Act 1926-1960 (NSW). Section 6(1) defined 'injury' to mean a 'personal injury arising out of or in the course of employment' and including '(b) the aggravation... or deterioration of any disease, where the employment was a contributing factor to such aggravation...or deterioration' [underline added]. Windeyer J's statement is not authority for a definition of 'employment' but rather whether employment was a contributing factor to the worker's claimed aggravation or deterioration:

I pass then to the next... question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When [s 6(1)(b) of the Workers Compensation Act 1926-1960 (NSW)] speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor...

(emphasis added)

72 Australian Telecommunications Commission v Tzikas[83] ('Tzikas') concerned a dispute about an aggravation injury and interpretation of the Compensation (Commonwealth Government Employees) Act 1971. Similar to Federal Broom, the question was whether employment was a contributing factor. If employment was a contributing factor then s 29(2)(f) of the Act deemed it to be an injury arising out of employment. I reject Mr Mishra's submission that Tzikas is authority for the proposition that termination of an employee's work relationship is not part of their employment unless there are special circumstances. Sweeney and Woodward JJ held:[84]

In our view there are two flaws in the Tribunal's approach, both of which constitute errors of law. The first relates to the question whether any employment by the Commonwealth is still a contributing factor to any recent aggravation or acceleration of the respondent's disease, within the meaning of s 29(1) of the Act. On this issue, we believe the Tribunal led itself into error by adopting the word 'sequalae', apparently used by one of the medical witnesses, without considering whether the factors listed were truly the results or consequences of the former aggravation and acceleration, which it must be remembered had resulted from noise and stress, rather than the manifestations or results of her underlying disease. The first three factors listed flow not from the respondent's employment with Telecom, but from her cessation of that work; they are not affected in any way by the nature of her former work, but arise simply from the fact of previous employment operating on a person of her temperament, background and family circumstances. The fact that she feels her status has decreased as a result of lower earnings, but she finds not working congenial, and enjoys the increased attention from her family, can hardly be said to flow from, or have been contributed to by, her employment by the Commonwealth. This issue of causation was simply not considered by the Tribunal, which assumed a causal connection because these things flowed, in a medical sense, from the cessation of work, which was in turn contributed to by employment factors.

The fourth factor listed by the Tribunal is more difficult to resolve than the others. In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.

(emphasis added)

73 In Boyd v Australian Industry Development Corporation,[85] the Full Federal Court explained the application of Tzikas. Again, the question was whether the employment had contributed to the aggravation injury:[86]

Section 29 of the [Compensation (Commonwealth Government Employees) Act 1971] requires that employment be "a contributing factor to the aggravation" of the disease. This criterion is not satisfied if the relevant cause of the aggravation is not the employment itself but its cessation, the state of unemployment. Thus in [Tzikas], the Court rejected the view that matters, such as the change of status resulting from a cessation of earning money, the attention from the family resulting from unemployment... were grounds which in themselves constituted a contribution by the former employment to an aggravation of the employee's mental illness.

...

However, their Honours in Tzikas' case did not hold that whatever is said or done at the time of termination of employment or in the course of events leading up to the termination of employment cannot play a material part in a sequence of events which constitutes a chain of causation sufficient to amount to a contribution by the employment to an aggravation of an underlying medical condition. In this area as in others, concepts of causation are involved. The issue is whether employment contributed to the aggravation. A practical, commonsense approach is required...

74 Mr Mishra refers to several decisions of the AAT. In Re Hutchinson and Comcare,[87] the applicant received compensation payments while she was an employee. Some three years after her invalidity retirement, she made a new claim based on a consultation with her General Practitioner.[88] She also claimed an aggravation injury. In that context, the Deputy President held:[89]

In the present case it seems that a considerable contributor to, even possibly a dominant cause of, the Applicant's present mental condition is the stress and anxiety caused by the many Federal Court and AAT actions that the Applicant has, in her view, been required to undertake, and is still undertaking, to receive the compensation to which she sees herself entitled. It is also clear from the very lengthy submissions made by the Applicant in these proceedings and her communications with the Tribunal registry, that she sees herself as being mistreated, or at least not treated fairly, by Comcare and the legal system. These factors all seem to be significant contributors to the Applicant's mental condition. As the above cited cases establish, these are not factors that relate to the Applicant's employment by the Respondent for the purposes of s 5B(1) of the SRC Act.

75 Hutchinson and Comcare must be distinguished from the circumstances here. Those claims relate to circumstances after cessation of employment. The focus here is on the alleged threats that Mr Mishra says were made during his employment following his alleged protected disclosures.

76 In Weatherburn and Comcare (Compensation)[90] ('Weatherburn'), the question was whether the applicant's former employment contributed, to a significant degree, to her claimed injury some four years after the cessation of employment. Deputy President Humphries, applying the relevant principles from Tzikas, Boyd, and other authorities, stated that:[91]

... it is clear that, to the extent [claimant's] depressive state is sustained by anger or resentment at the decisions made by Comcare, it is not contributed to by employment, and is not compensable. To the extent that the depressive state is the result of dissatisfaction at a loss of earnings, or the loss of the job satisfaction she previously achieved through employment, or general unhappiness with the state of her life post-retirement, it is similarly not compensable. But if that depressive state is the product of a sick mind, directed towards former conditions of employment, such that a causal relationship with the 2012 aggravation is found, then it is contributed to by employment and may be compensable, provided the contribution reaches the threshold required by s 5B of the Act.

The primary Tribunals in Tzikas and Boyd had the advantage of medical evidence on which they were reasonably able to make clear findings about causation. The Tribunal in the present proceeding does not have that advantage...

77 The Deputy President found the evidence ambivalent on the question of whether the former employment had, to a significant degree, contributed to the applicant's condition.[92] As Comcare had not discharged its onus that compensation payments should not be made, the applicant's claim for compensation was allowed.[93]

78 Relying on Weatherburn, Mr Mishra says that a comprehensive examination of the facts and law, namely a trial, is required to determine whether an injury is causally related to and not too remote from the employee's employment. On the other hand, NBN says its summary judgment application is made on the basis that the facts as alleged by the plaintiff will be accepted at trial. I accept NBN's submission. There is no factual dispute to be determined here, and certainly not one concerning the medical evidence as in Weatherburn.

79 Mr Mishra submitted that the 3 September 2021 meeting had nothing to do with his employment but rather to do with the contractual liability of NBN to pay its tax liabilities. He says it was an attempt to resolve the tax issues between him and NBN. Mr Mishra says the disclosures he made had nothing to do with his employment relationship, that they were, in fact, well outside it, and that he was simply a Whistleblower in respect of corporate unethical behaviour.

80 Mr Mishra's alleged injury arises out of, or in the course of his employment. Indeed, more narrowly, the circumstances show the injury is in the course of employment. There is a temporal connection between the injury and the employment. The injury arose in the course of work duties, namely attending a meeting with his employer's representatives during his employment and regarding his employment. On Mr Mishra's pleadings, he suffered detriment at the 3 September 2021 meeting because of disclosures he had made during his employment regarding tax matters: see paragraphs 11D and 11E of the FASOC. The tax matters related to his own pay. Contrary to what Mr Mishra now says, on his own pleadings, the pleaded disclosures do not relate to the termination of his employment. Rather, the disclosures relate to NBN's failure to pay his tax liabilities during his employment: see paragraphs 9A and 11C of the FASOC. Mr Mishra's alleged injury arises directly from the alleged acts of his employer during employment. I should add that, as already outlined, Mr Mishra's employment was not terminated at the time of the alleged threats by NBN in September 2021, but well over a year later, in November 2022.

Comcare's determinations and submissions made at the AAT

81 As already outlined, Mr Mishra has initiated a review of the 5 July 2022 Comcare decision by the AAT. NBN acknowledges that in the Comcare proceeding before the AAT, Comcare contended that the Mr Mishra's injury was not significantly contributed to by his employment within the meaning of s 5B of the SRC Act. Mr Mishra states that his submissions here accord with those submissions. Mr Mishra says this demonstrates that his position (that s 44 of the SRC does not apply) is at least arguable and weighs against summary judgment. I reject this submission.

82 Firstly, Comcare's contention demonstrates nothing more than its position in the context of the claim before the AAT. That position is put as an alternative. Its position is otherwise that if Mr Mishra did suffer a psychological ailment that was significantly contributed to by his employment, it was as... 'a result of reasonable administrative action undertaken in a reasonable manner' and therefore excluded by s 5A of the SRC Act.[94] This latter position is consistent with the 5 July 2022 Comcare decision. In that decision, Comcare found that Mr Mishra's claimed condition was significantly contributed to by his employment.[95] Comcare denied liability on the basis that Mr Mishra's condition was sustained as a result of reasonable administrative action taken in a reasonable matter.[96] Comcare's contentions before the AAT do not demonstrate that Mr Mishra has a real prospect of establishing that his injury did not arise in the course of his employment and therefore outside of s 44 of the SRC Act.

83 Secondly, Comcare's submissions before the AAT must be read in the context of the Comcare decisions. They show why the submission made by Comcare above (and relied upon by Mr Mishra) is only put as an alternative. I refer to the following matters to explain this, not to make factual findings. The 7 February 2022 Comcare decision held that employment was a significant contributing factor to Mr Mishra's condition, and that the exclusion of reasonable administrative action taken in a reasonable manner applied. The 5 July 2022 Comcare decision upheld the 7 February 2022 Comcare decision.[97] The later 5 July 2022 Comcare decision found that Mr Mishra's employment significantly contributed to his adjustment disorder with mixed anxiety and depressed mood on the basis of Associate Professor Damodaran's report.[98] The Associate Professor identified 'employment factors' as the 'main factors' that had contributed to Mr Mishra's medical condition of 'adjustment disorder with mixed anxiety and depressed mood.'[99]

84 Thirdly, Mr Mishra makes different allegations in this proceeding that were not the subject of his Comcare claim and therefore not the subject of Comcare's submissions before the AAT. I refer to his whistleblowing claim.

85 I should add that Mr Mishra's position has changed with respect to the cause of his injury, or the nature of the detriment he has suffered. In the Comcare proceeding, he argued that his employment significantly contributed to his injury. Now he says the opposite. As outlined in a letter from Mr Mishra's solicitor to NBN's solicitors dated 6 August 2023:[100]

The decision of Comcare on 7 February 2022 that was upheld on review on 5 July 2023 (Comcare decisions) was to the effect that our client has not suffered an injury within the meaning of s 5A of the SRC Act and thus our client falls within an exclusion to the Safety, Rehabilitation and Compensation Act 1998 (Cth) (SRC Act). The provisions of s 44 and s 45 of the SRC Act do not apply to our client, as he has not suffered an injury within the meaning of the SRC Act (according to the Comcare decisions) as both sections are reliant therein.

86 This leads to the next issue. Mr Mishra refers to Comcare's decisions that NBN's conduct resulted from reasonable administrative action taken in a reasonable manner. He says that consequently s 44 of the SRC Act does not apply. He says that it only applies to an 'injury' as defined by s 5A and that excludes an injury as a result of reasonable administrative action taken in a reasonable manner.

87 NBN says that, on Mr Mishra's pleadings, the exclusion for 'reasonable administrative action' in the definition of 'injury' in s 5A does not apply.

88 In Waters v Commonwealth of Australia ('Waters')[101], the NSW Court of Appeal considered analogous circumstances of a plaintiff whose injury was precluded by s 44 and the s 5A(1) exclusion under the SRC Act. The plaintiff argued that her injury resulted from 'reasonable disciplinary action' and therefore fell outside the concept of 'injury' and therefore outside s 44. This submission was rejected. Basten JA (with whom McColl JA agreed) held:[102]

The applicant's submissions in respect of this issue have the flavour of casuistry. First, what is excluded is "reasonable disciplinary action", not a precondition for taking reasonable disciplinary action. If the action is undertaken in an unreasonable manner it would not constitute "reasonable disciplinary action" under s 4. Even if the first steps taken were reasonable, it will have ceased to be reasonable whenever it involved conduct of the kind alleged by the applicant, namely abuse, harassment and bullying. This conclusion does not rely upon any change in the wording following the insertion of s 5A

Further, and more fundamentally, the submission ignores the structure of the Compensation Act. In common with workers' compensation legislation in comparable jurisdictions, statutory compensation is payable under the Compensation Act in respect of any injury arising out of or in the course of employment, without the need to prove fault on the part of the employer. The effect of s 44(1) is to impose a bar on civil damages claims in respect of such injuries as are compensable under the statutory scheme. The bar does not, consistently with that policy, operate in respect of any loss or damage suffered at the hands of the employer, which is not compensable under the statutory scheme. However, it is highly implausible that either negligence or deliberate tortious conduct suffered in the course of employment will not give rise to compensation. Reasonable disciplinary action may fall outside the statutory scheme, but it is quite implausible that it would give rise to a claim in tort, if for no other reason than that it is, ex hypothesi, "reasonable"... However, the applicant has no reasonable prospect of establishing that such conduct is not covered by the statutory scheme for compensation. Such a proposition would be inconsistent with well understood principles as to the availability of workers compensation.

The applicant sought to escape the logic of this conclusion in two ways. First, she submitted that her complaint was not that she had been bullied by her superior, but that the Commonwealth had failed to transfer her away from the person responsible for the bullying and her failure to obtain a transfer fell within the terms of the exclusion.

That submission cannot be accepted: if it were correct, it would mean that the Commonwealth, as employer, would not be liable to pay compensation in respect of either deliberate bullying or an unsafe work environment in circumstances where the employee had sought a transfer or that other steps be taken to avoid the harassment or the safety risk. Even if the refusal to take such steps had been entirely reasonable, if the risk or injury materialised, compensation would be payable. The Commonwealth could not be heard to say, "your injury resulted not from the bullying but from our failure to transfer you away from the bully, which is conduct covered by the exemption"

89 I adopt the principles above. Mr Mishra's submission that s 44 does not apply to an injury suffered as a result of reasonable administrative action taken in a reasonable manner must be rejected.

90 Mr Mishra initially argued that there was an estoppel. Sensibly, these submissions were not pressed at the hearing.[103] In Commonwealth v Snell,[104] the Full Court considered legislation analogous to the Act, namely the Seafarers Rehabilitation and Compensation Act 1992 (Cth) ('Seafarers Act'). It held that the principle of issue estoppel did not apply.[105]

91 I reject Mr Mishra's submission that it would bring the administration of justice into disrepute if he were precluded from obtaining damages both in this proceeding and by the Comcare decisions pursuant to the SRC Act. Mr Mishra misapprehends the legal effect of the decisions of Comcare and the AAT, and the manner in which he has brought and pleaded his claim for damages.

92 In Snell, the Full Court referring to the authority of Hannaford which concerned s 62 of the SRC Act, noted the 'sharp distinction drawn in Hannaford between the process under the SRC Act and curial proceedings where the entitlements of the parties are finally determined'.[106] The Full Court compared the curial process where ordinarily 'once a power is exercised to determine the rights of a subject, the exercise is final and conclusive', with the schemes of the SRC Act and Seafarers Act which 'do not operate that way'. They are somewhat unique in that they provide for 'progressive and evolving decision-making' in relation to claims for compensation.'[107]

93 Mr Mishra has not made a claim of detriment arising from whistleblowing to Comcare that is the same as the allegations here. It is incorrect to say he is precluded from bringing such a claim if it has merit. Of course, whether he is ultimately successful in any such claim is another matter.

94 As outlined above, s 44(1)(a) extinguishes an action or other proceeding for damages in respect of an injury sustained by an employee in the course of their employment, being an injury that, but for that sub-section, the Commonwealth (or Commonwealth authority or licensed corporation) would otherwise be liable for damages. Adopting the analysis in the preceding paragraph, I am satisfied of the following if Mr Mishra's factual case is proven: he has sustained an injury in the course of his employment, and it is an injury that falls within the definition of s 5A and accordingly an injury that the Commonwealth would otherwise be liable for damages. Therefore, Mr Mishra's damages claim falls within s 44(1).

95 The extinguishment of a cause of action per s 44 is subject only to the operation of s 45(2).[108] Section 45 of the SRC Act is as follows:

Actions for damages - election by employees

(1) Where:

(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and

(b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.

(2) Where an employee makes an election:

(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and

...

(emphasis added)

96 The commencement of proceedings is not an election in writing within s 45(1).[109] Mr Mishra has not made a written election pursuant to s 45 of the SRC Act.[110] He is not currently eligible to make that election because he has not established compensation is payable because of a permanent impairment per ss 24, 25 or 27 of the SRC Act.

Does s 44 of the SRC Act extinguish Mr Mishra's damages claim under the Whistleblower protections?

97 Mr Mishra makes a claim pursuant to the Whistleblower protections in pt 9.4AAA Corporations Act. In order to obtain compensation as claimed, Mr Mishra must establish conduct that falls within s 1317AD(1) of pt 9.4AAA.

98 Section 1317AD(1) of the Corporations Act is as follows:

Compensation and other remedies--circumstances in which an order may be made

(1) A court may make an order under section 1317AE in relation to a person (the first person ) if:

(a) the first person engages in conduct ( detrimental conduct ) that:

(i) causes any detriment to another person (the second person ); or

(ii) constitutes the making of a threat to cause any such detriment to another person (the second person ); and

(b) when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and

(c) the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct.

99 Section 1317ADA states the 'detriment' may include '(a) dismissal of an employee; (b) 'injury of an employee in his or her employment...'

100 Mr Mishra says that he is entitled to compensation for loss, damage or injury suffered as a result of the detriment suffered per s 1317AE of the Corporations Act:

Compensation and other remedies--orders that may be made

(1) For the purposes of subsections 1317AD(1), (2) and (2A), a court may make any of the following orders:

(a) an order requiring the first person to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct;

(b) if the court is satisfied that the first person engaged in the detrimental conduct in connection with the first person's position as an employee:

(i) an order requiring the first person to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct, and an order requiring the first person's employer to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct; or

(ii) an order requiring the first person and the first person's employer jointly to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct; or

(iii) an order requiring the first person's employer to compensate the second person, or any other person, for loss, damage or injury as a result of the detrimental conduct;

(c) an order granting an injunction, on such terms as the court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct;

(d) an order requiring the first person to apologise to the second person, or any other person, for engaging in the detrimental conduct;

(e) if the second person is or was employed in a particular position and the detrimental conduct wholly or partly consists, or consisted, of the termination, or purported termination, of the second person's employment--an order that the second person be reinstated in that position or a position at a comparable level;

(f) if the court thinks it is appropriate--an order requiring the first person to pay exemplary damages to the second person, or any other person;

(g) any other order the court thinks appropriate.

(2) If the detrimental conduct wholly or partly consists, or consisted, of terminating or purporting to terminate a person's employment (including detrimental conduct that forces or forced the person to resign), the court must, in making an order mentioned in paragraph (1)(a) or (b), consider the period, if any, the person is likely to be without employment as a result of the detrimental conduct. This subsection does not limit any other matter the court may consider.

(3) In deciding whether to make an order under paragraph (1)(b) in relation to the first person's employer, the court may have regard to the following:

(a) whether the employer took reasonable precautions, and exercised due diligence, to avoid the detrimental conduct;

(b) if the employer has a policy dealing with any or all of the matters referred to in subsection 1317AI(5) (whether or not section 1317AI requires the employer to have such a policy)--the extent to which the employer gave effect to that policy;

(c) any duty that the employer was under to prevent the detrimental conduct, or to take reasonable steps to ensure that the detrimental conduct was not engaged in.

(4) If the court makes an order under subparagraph (1)(b)(ii), the first person and the first person's employer are jointly and severally liable to pay the compensation concerned.

101 Mr Mishra says that s 44 of the SRC Act does not bar his claim under the Whistleblower protections because:

(a) his claim under the Whistleblower protections is for compensation, not damages, and so s 44(1) is not applicable;

(b) the Whistleblower protections provide for relief that is far wider than an action or other proceeding for damages including compensation, an order for apology or injunctive relief or damages per s 1317AE(1), and it would deprive him of potential remedies that are not covered by s 44(1). As s 44(1) completely extinguishes a claim, the whole claim would be barred, not just an action for damages;

(c) the Whistleblower protections are protective in nature and if s 44(1) applies then those provisions would be of no utility;

(d) the Whistleblower protections concern conduct that could amount to a criminal offence and so should not give way to s 44 of the SRC; and

(e) the Whistleblower protections relate to specific matters whereas the SRC Act is general, relating to the employment of Commonwealth workers, and in the event there is conflict between the two, that should be resolved in favour of the Whistleblower protections.

102 NBN says that Mr Mishra's assertion that the Whistleblower protections somehow override and circumvent the prohibition of s 44 of the SRC Act is misconstrued. To interpret Mr Mishra's claim as barred by s 44 of the SRC Act, would not preclude him from claiming remedies other than damages under the Whistleblower protections. Section 44 extinguishes an action for damages for an injury suffered in the course of employment with a Commonwealth entity. It does not prevent Mr Mishra from seeking an injunction or an apology as is available to him under s 1317AE, should he be deemed eligible under the Whistleblower protections.

103 NBN says that Mr Mishra is not an eligible whistleblower under the Whistleblower protections as he has failed to establish the applicability of s 1317AD(1). The two detrimental actions pleaded by Mr Mishra are narrow: the threat of unilateral termination of his employment at the 3 September 2021 meeting, and cessation of Mr Mishra's car and home allowances in November 2021. The 7 February 2022 and 5 July 2022 Comcare decisions affirm that NBN's conduct was reasonable administrative action taken in a reasonable manner. Mr Mishra himself submits this assessment for the purpose of avoiding the SRC Act definition of compensable injury in this application. NBN says it is highly implausible that such conduct could simultaneously satisfy s 1317AD(1) of the Corporations Act and be deemed reasonable administrative action.

104 Further, NBN refers again to the legislative purpose of s 44 as enumerated in Waters.[111] The provision 'is intended to conflict with, and hence to derogate from, other statutory or common law causes of action. That conflict is the very purpose of the existence of s 44'.[112] The provision is not discretionary, and had been referred to as an annihilating provision.[113]

105 The question of whether s 44 of the SRC Act extinguishes a claim for damages under the Whistleblower protections is novel. Neither party could identify any authorities directly on point. The authorities that NBN identified referenced the SRC Act's interaction with State Acts, not Commonwealth ones.[114] Apparent inconsistencies between two Commonwealth laws present different questions than in the case of State and Commonwealth laws. Therefore, though cases as Austral[115] richly inform as to the nature of s 44, they are not directly on point.

107 The first Whistleblower protections within the Corporations Act were introduced in 2004. In 2018, these provisions underwent extensive amendment. The amendment resulted in the current form of the provisions. During their gestation, the new provisions were contained within the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018;[116] at their birth, within the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019. Alongside their introduction, Whistleblower provisions in other Commonwealth laws were repealed. Specifically, those contained in the Banking Act 1959,[117] the Life Insurance Act 1995,[118] the Insurance Act 1973,[119] and the Superannuation Industry (Supervision) Act 1993.[120] What had once been a sparse collection of similar provisions were now unified under Part 9.4AAA of the Corporations Act. The reason for collectively repealing all the former provisions, and for extensively amending the lattermost, was to unify and broaden Whistleblower protection for the corporate and financial sector.[121] Alongside the Corporations Act amendments, a Whistleblower protection scheme was also introduced into the Taxation Administration Act 1953 (Cth). It aimed to create a Whistleblower protection scheme for disclosing breaches of tax laws and tax avoidance.[122]

108 In reconciling two Commonwealth provisions, BDR21 v Australian Broadcasting Corporation[123] ('BDR') is particularly instructive. This is because the Whistleblower protections were drafted with reference to the Public Interest Disclosure Act 2013 (Cth) ('PID Act').[124] This is a point to which I will return.

109 BDR is an authority of the Full Court of the Federal Court of Australia. The Full Court considered whether there was a conflict between s 16(3) of the Parliamentary Privileges Act 1987 (Cth) ('PP Act') and s 24 of the PID Act. Section 16(3) of the PP Act protects parliamentary proceedings from scrutiny in court proceedings or tribunals under certain circumstances. Section 24 of the PID Act ensures that the immunity (s 10) and remedy provisions for compensation (s 14), injunction, apology, or other orders (s 15), or reinstatement (s 16) are not prevented from having effect by any other Commonwealth law, unless that law is enacted after the introduction of s 24 or states that it operates despite s 24 or Part 2 of the PID Act.[125]

110 The Full Court held there was no conflict. The purpose of s 24 was:[126]

To make it abundantly clear that the immunity in s 10 and the remedies in ss 14 to 16 took effect despite any other limitations on such rights that might be found in some other statutory provision. Read in that way, s 24 does not override any other such provision but rather prevents it from applying to the PIL Act so as to impede the effect of s 10 and ss 14 to 16. That is, on that interpretation, s 24 does not disable such provisions from their operation in other spheres, nor their operation upon other provisions of the PID Act, but rather ensures they do not impinge upon those specified protected provisions at the point at which they would otherwise take effect (emphasis added).

111 The Full Court held s 24 to be:[127]

A protective provision to ensure that those immunity and remedy provisions of the PID Act were not set to nought by an extant legislative side wind, but not more. As such, s 24 should take effect according to its express terms, and not be given any wider operation than is necessary to achieve that objective.... there needs to be a conflict between the operation of s 10, s 14, s 15 or s 16 of the PID Act (rather than just s 24 of the PID Act) and the operation of s 16(3) of the PP Act, before s 24 has any work to do.

112 Similarly here, s 44 of the SRC Act and the Whistleblower protections are not in conflict. Neither overrides the other. The question is whether s 44 of the SRC Act operates to extinguish Mr Mishra's claim for damages made under the Whistleblower protections. The following principles reinforce my analysis.

113 The harmonious construction principle applies when two Commonwealth Acts are in apparent conflict.[128] That is, it is assumed that Parliament, not wanting to contradict itself, intended for the two Acts to operate harmoniously, unless expressed otherwise or unless the provisions cannot stand together.[129] As Mr Mishra's counsel says, if they cannot stand together,[130] and the more specialised Act was introduced after the more general Act, then the Court will apply the common law principle of implied repeal.[131] However, here, s 44 of the SRC Act and the Whistleblower protections can stand together. As discussed already, s 44 of the SRC Act has an extinguishing effect on a cause of action for damages that falls within it. Neither it nor the Whistleblower protections contain any words to indicate that one intends to override the other. There is no conflict.

114 Section 44 of the SRC Act will operate to extinguish certain actions for damages under the Whistleblower protections that fall within s 44. I make this finding for the following reasons.

115 Firstly, neither the SRC Act nor the Corporations Act protect the Whistleblower protections from the operation of s 44 of the SRC Act.

116 Secondly, the Whistleblower protections do not contain a provision shielding their operation from other Commonwealth legislation, as discussed more fully below. This may be contrasted with s 24 of the PID Act. The PID Act is a useful contrast because the immunity and remedial provisions in sections 10, 14, 15, and 16 of the PID Act are analogous to ss 1317AB and 1317AE of the Corporations Act (the immunity and remedial provisions, respectively).[132] For example, s 10(1)(b) of the PID Act and s 1317AB(1)(b) of the Corporations Act are identically drafted. The former provision provides the same protection against enforceable rights to public interest disclosers as the latter provides to Whistleblowers. This is no coincidence. As I alluded to earlier, the Whistleblower reforms were drafted with the PID Act in mind. In both Acts, the provisions serve to protect those disclosing information that places them at risk of retaliatory harm and to provide avenues for remedy in the event that they do suffer harm. In the explanatory memorandum to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017, it was stated that,[133]

Independent reviews of corporate sector whistleblowing provisions in Australia have found that they lag those of the public sector and those of comparable overseas jurisdictions... To remedy these inadequacies, the Government committed... to ensuring appropriate protections are in place for people who report corruption, fraud, tax evasion or avoidance, and misconduct within the corporate sector... It also committed to pursuing reforms to Whistleblower protections in in other parts of the corporate sector, with consultation on options to strengthen and harmonise these protections with those in the public sector available under the PID Act.

(emphasis added)

117 Unlike the immunity and remedial sections of the PID Act, Part 9.4AAA of the Corporations Act does not contain a provision shielding its equivalent sections from other Commonwealth Acts.[134] It does not contain a PID Act s 24 equivalent. Thus, unlike the PID Act protections, the Whistleblower protections remain exposed to a 'legislative side wind'. That is_,_ subject to other Commonwealth laws, such as those under s 44 of the SRC Act. This conclusion is strengthened because the Whistleblower protections were drafted with the provisions of the PID Act in mind. Parliament must, therefore, have intended for s 44 of the SRC Act to operate in conjunction with the relevant Whistleblower compensation provision (s 1317AD).

118 Thirdly, the Whistleblower protections and s 44 of the SRC Act can be read harmoniously. Section 1317AD of the Corporations Act outlines the circumstances under which Whistleblowers may receive compensation and other remedies. Section 1317AE provides the orders a Court may make for that purpose. These orders include compensation for loss, damage or injury.

119 Section 44 of the SRC Act will only extinguish certain actions or other proceedings for damages per the Whistleblower protections. This is because the operation of ss 44 and 45 have the following effect.

(a) the actions or other proceedings being extinguished by s 44 must be 'for damages' per s 44(1). Section 4(1) of the SRC Act states that damages 'includes any amount paid under a compromise or settlement of a claim for damages, whether or not legal proceedings have been instituted, but does not include an amount paid in respect of costs incurred in connection with legal proceedings.' Pausing there, Mr Mishra's submission that an action for an apology or injunction would be extinguished must therefore be rejected.

(b) per s 44(1), the action must relate to an injury that is 'sustained by an employee in the course of his or her employment', or loss of, or damage to property used by an employee resulting from such an injury.

(c) per s 44(1)(a), the injury must be one in which the Commonwealth, Commonwealth authority or licensed corporation would, but for s 44, be liable (whether vicariously or otherwise) for damages; and

(d) section 44 is subject to s 45, which allows an eligible employee to make an election so that s 44(1) does not apply for non-economic loss. In that case, a cap of $110,000 applies for non-economic loss per s 45(4). Accordingly, an employee may elect to pursue an action for damages under the Whistleblower protections. Here, it is common ground Mr Mishra has made no such election.

120 I am reinforced in this harmonious reading of s 44 and the Whistleblower protections by s 1317AADA(1) of the Corporations Act, which is contained within the Whistleblower protections. Given that section, it is evident that the Whistleblower protections never intended to cover the field with respect to personal work-related grievances. Section 1317AADA(1) excludes personal work-related grievances from being classed as protected disclosures pursuant to s 1317AA(1) of the Corporations Act. It provides examples of 'personal work-related grievances'. Relevantly, they include:

(c) a decision relating to the terms and conditions of engagement of the disclosure;

(d) a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

121 However, this is not to exclude acts of victimisation pursuant to, and in contravention of, s 1317AC of the Corporations Act.

122 The relevant extraneous material provides context for the inclusion of the exception under s 1317AADA(1). As the revised Explanatory Memorandum explains:[135]

1.16 The amendments limit protection for disclosures about solely personal employment related matters, while preserving protection for disclosures about systematic issues or reprisals against a Whistleblower. This implements Recommendation 5.1 of the Parliamentary Joint Committee, following recommendations of the Moss Report in relation to the Public Interest Disclosure Act 2013.

1.17 A disclosure of a personal work-related grievance will remain protected if it concerns detriment to the discloser in contravention, or alleged contravention, of section 1317AC (whistleblower-related victimisation). [Amendment 6, paragraph 1317AADA(1)(b) of the Corporations Act]

1.18 A disclosure of a personal work-related grievance will also remain protected if it is made to a legal practitioner for the purposes of obtaining legal advice or legal representation in relation to the operation of the whistleblower provisions. [Amendment 6, subsections 1317AA(3) and 1317AADA(1) of the Corporations Act]

1.19 The amendments define a disclosure concerning a personal work-related grievance as a disclosure of information that 'concerns a grievance about any matter in relation to the discloser's employment, or former employment, having (or tending to have) implications for the discloser personally'. [Amendment 6, paragraphs 1317AADA(1)(a) and (2)(a) of the Corporations Act]

1.20 However, a disclosure is not a personal work-related grievance if it:

- has significant implications for the regulated entity to which it relates, or another regulated entity, that do not relate to the discloser;

- concerns conduct, or alleged conduct, in contravention of specified corporate and financial services laws, or that constitutes an offence punishable by 12 months or more imprisonment under any other Commonwealth laws;

- concerns conduct that represents a danger to the public or the financial system; or

- concerns conduct prescribed by regulation.

[Amendment 6, paragraphs 1317AA(5)(c), (d), (e) and (f), and 1317AADA(2)(b) of the Corporations Act]

123 Once again, the PID Act provides comparative value. The Commonwealth requested Mr Philip Moss AM review and report on the effectiveness and operation of the PID Act 2013 (the 'Moss report'). The report was tasked with, amongst other things, identifying and reviewing the breadth of disclosable conduct covered by the PID Act 'including whether disclosures about personal employment-related grievances should receive protection under the Act'. The Moss report was published in July 2016. It found that most government agencies 'noted that the bulk of disclosures related to personal employment-related grievances and were better addressed through other processes.'[136] The Moss report found the PID Act framework was not well-suited to such grievances.[137] It recommended their exclusion unless they related to systemic wrongdoing: see recommendation 5.[138] The Moss report states that:[139]

Focussing away from personal employment-related grievances towards serious wrongdoing will help to restore the reputation of the PID Act in the Commonwealth public sector and encourage agencies to regard the PID Act framework in the integrity and anti-corruption context.

124 Recommendation 5 of the Moss report was adopted in the Corporations Act amendments. In that Act, it takes the form of s 1317AADA(1).[140]

125 As matters currently stand, Mr Mishra's claim for damages under the Whistleblower protections has no real prospect of success. It is extinguished by s 44 of the SRC. I reject his submission that it does not fall within s 44 as it is not a claim for damages but a claim for compensation. On his own pleadings, he claims for loss and damage. As outlined above, s 1317AE permits damages to be awarded. For the reasons I have discussed above, Mr Mishra's claim falls squarely within s 44 of the SRC. He can only pursue the claim if he makes an election under s 45 of the SRC. As discussed above, he is not currently eligible to make that election as he has not established a permanent impairment.

Mr Mishra's claim for non-economic loss under the Wrongs Act

126 As a matter of completeness, I will address NBN's submissions regarding the Wrongs Act 1958 (Vic) ('Wrongs Act') and permanent impairment.

127 NBN says that Mr Mishra indicated that he would alternatively bring a claim for non-economic loss under the Wrongs Act. To do so, he must follow the protocols under Division 4 of the Wrongs Act, including obtaining and serving a certificate of assessment of the degree of permanent impairment by a certified expert medical practitioner. It is common ground that no such certificate has been provided. On 6 August 2023, in response to enquiries by NBN's solicitors, the solicitor act for Mr Mishra wrote:[141]

We deny that there is any need for our client to obtain a certificate pursuant to the Wrongs Act because our client's claim is made pursuant to Part 9.4AAA (Whistleblower's protections) of the Corporations Act 2001 (Commonwealth) and compensation is payable pursuant to s 1317 AE (1) for loss, damage or injury suffered as a result of the detrimental conduct, that would be significantly weakened if the provisions of the Wrongs Act in relation to serious harm were held to apply and there is no legislative intent in Part 9.4AAA of the Corporations Act to pick up the provisions of the Wrongs Act (see Moore v Scenic Tours [2020] HCA 17 at [32] and [38]).

128 NBN says that without the certificate establishing permanent impairment, Mr Mishra is unable to bring his damages claims for non-economic loss under the Wrongs Act. Mr Mishra does not appear to dispute this. At the hearing of the application, his counsel did not make any substantive submissions as to his claim for non-economic loss under the Wrongs Act.

Should Mr Mishra's damages claim be allowed to proceed to trial per s 64 of the CPA?

129 Mr Mishra relies on s 64 of the CPA. It provides:

64 Court may allow a matter to proceed to trial

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

130 Mr Mishra says that it is in the interests of justice for this matter to proceed to trial for several reasons. Firstly, the law is unclear. Secondly, Mr Mishra says that he suffers personal hardship and mental illness.

131 True it is that there was no precedent for the question regarding the application of s 44 of the SRC Act to the Whistleblower protections, however the parties agitated this issue and I have adjudicated on it. As Dixon J stated in Ottedin Investments Pty Ltd:[142]

That argument directed to the issues relevant on the application, perhaps even extensive submissions, may be necessary to demonstrate that the case of the plaintiff has no real prospect of success is not ordinarily a relevant consideration.

132 That is what occurred here. BDR provides an example of submissions on complex issues in respect of a summary judgment application. In BDR, the Full Court of the Federal Court upheld Halley J's summary judgment orders.

133 The damages claim is a significant part of Mr Misha's claim. Given the clear outcome, putting the parties to the cost and expense of determining the damages claim at trial would be inconsistent with the overarching purpose of the CPA. It would be a waste of the time and resources of the parties, and the Court. Mr Mishra's personal circumstances do not warrant his damages claim proceeding to trial. Doing so would expose Mr Mishra to adverse cost orders. It would be contrary to the interests of justice for the damages claim to proceed to trial.

134 Mr Mishra also says that causation is a question of fact that must be determined at trial.[143] He says that there was no evidence from NBN and in those circumstances, his case must be taken at its highest. However, as discussed, the above analysis assumes that Mr Mishra's factual allegations are proven. Therefore I reject Mr Mishra's submission that there is a factual controversy relating to the damages claim that must first go to trial.

Does Mr Mishra's damages claim have no real prospect of success?

62 Defendant may apply for summary judgment in proceeding

A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.

63 Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

136 I adopt the following principles given by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[144]

Upon the present state of authority:

a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

137 I am satisfied that there is no real question to be tried regarding Mr Mishra's damages claim. It is extinguished by s 44 of the SRC Act. It has no real prospect of success. This is not curable by amendment. Section 63 is subject to s 64. As discussed above, I am not satisfied the damages claim should proceed to trial per s 64.

138 I will make orders for summary judgment of the damages claim in favour of NBN.

[1] The employment agreement itself is not in evidence, however, it is referred to by both parties in their pleadings: see plaintiff's further amended statement of claim filed 28 September 2022 [4] and; first defendant's amended defence filed 10 August 2023 [4].

[2] See plaintiff's further amended statement of claim filed 28 September 2022 [4].

[3] See first defendant's amended defence filed 10 August 2023 [4](c)(iii).

[4] Exhibit "MS-1" to the affidavit of Mark Stanarevic affirmed on 2 October 2023 ('Stanarevic affidavit'), 68-72.

[6] Plaintiff's further amended statement of claim filed on 28 September 2022 ('FASOC') [11](c)-(f)(s).

[7] First defendant's amended defence filed 10 August on 2023 ('amended defence') [7](e)(i).

[8] Exhibit "MS-1" to the Stanarevic affidavit, 'Witness statement of Abishek Mishra dated 5 July 2024' ('Witness statement of Abishek Mishra'), 190-264, 203.

[9] See, for example, emails between Mr Mishra, Yogesh Gupta, NBN, EY dated August 2018 to July 2019 in Exhibit "MS-1" to the Stanarevic affidavit, 107-120.

[10] FASOC, [9]; Amended defence, [9](a).

[12] Witness statement of Abishek Mishra, [79]; See first defendant's amended defence filed 10 August 2023 [11D](c)(v); Amended defence, [11D](c)(i).

[13] Witness statement of Abishek Mishra, [80]-[87]; Exhibit "MS-1" to the Stanarevic affidavit, 215-217; Amended defence, [11](c)(iv).

[14] Exhibit "MS-1" to the Stanarevic affidavit, , 60-64; Witness statement of Abishek Mishra, [93]; Exhibit "MS-1" to the Stanarevic affidavit, 216.

[15] Exhibit "MS-1" to the Stanarevic affidavit, 66.

[16] Exhibit "MS-1" to the Stanarevic affidavit, 65.

[17] Witness statement of Abishek Mishra,[87]; Exhibit "MS-1" to the Stanarevic affidavit, 217.

[18] Exhibit "MS-1" to the Stanaraevic affidavit, 61.

[19] Witness statement of Abishek Mishra, [87]; Exhibit "MS-1" to the Stanarevic affidavit, 217.

[20] Exhibit "MS-1" to the Stanarevic affidavit, 148.

[21] Exhibit "MS-1" to the Stanarevic affidavit, 77, 218; Witness statement of Abishek Mishra, [90].

[22] Exhibit "MS-1" to the Stanarevic affidavit, 146.

[25] Witness statement of Abishek Mishra, [94]-[95]; Exhibit "MS-1" to the Stanarevic affidavit, 219.

[26] It is not in dispute that numerous emails were exchanged between Mr Mishra and NBN: See, for example, FASOC, [9A] and amended defence, [9A](i)(a).

[27] Exhibit "MS-1" to the Stanarevic affidavit, 74-75.

[29] Exhibit "MS-1" to the Stanarevic affidavit, letter to Comcare from NBN dated 21 January 2022, (the '21 January 2022 NBN letter to Comcare'), 60-64.

[30] Exhibit "MS-1" to the Stanarevic affidavit, 230.

[34] Witness statement of Abishek Mishra, [115]; Exhibit "MS-1" to the Stanarevic affidavit, 231-232.

[35] See, 21 January 2022 NBN letter to Comcare.

[36] Exhibit "MS-1" to the Stanarevic affidavit, 157.

[39] Exhibit "AC-1" to the affidavit of Andrew John Christopher sworn 10 February 2023 ('Christopher affidavit'), 50.

[40] Exhibit "MS-1" to Stanarevic affidavit, 234.

[41] Christopher affidavit [6]; Exhibit "MS-1" Stanarevic affidavit, 'Workers' compensation claim, employee submitted information dated 24 November 2021', 233-240.

[42] Exhibit "MS-1" to the Stanarevic affidavit, 13-16.

[43] Exhibit "AC-1" to the Christopher affidavit, 50; Exhibit "MS-1" to the Stanarevic affidavit, 'Report of A/Prof Saji Damodaran dated 2 February 2022', 51.

[44] Exhibit "AC-1" to the Christopher affidavit, 1-5.

[46] Safety, Rehabilitation and Compensation Act 1988 ('SRC Act') s 5A(1).

[47] Exhibit "MS-1" to the Stanarevic affidavit, 84-93.

[49] Christopher affidavit [9]; Exhibit "AC-1" to the Christopher affidavit, 11-17.

[50] Exhibit "AC-1" to the Christopher affidavit, 13.

[51] Exhibit "AC-1" to the Christopher affidavit, 13-14.

[54] Transcript of hearing of proceeding on 1 December 2023 ('transcript'), 39.26-39.28.

[56] Exhibit "MS-1" to the Stanarevic affidavit, 247, 250; Witness statement of Abishek Mishra, [151], [155].

[57] The allegations are contained in the FASOC.

[60] See plaintiff's reply to the first defendant's defence filed on 18 April 2023 [6].

[62] Amended defence; Second defendant's amended defence filed on 10 March 2023.

[63] Exhibit "AC-1" to the Christopher affidavit, 156-157.

[64] Exhibit "AC-1" to the Christopher affidavit, 163.

[65] NBN's application is made by summons filed on 18 September 2023.

[66] [2000] HCA 39; (2000) 203 CLR 136 ('Austral').

[67] Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 ('Austral'), [20].

[69] Cf. ATC v Tzikas [1985] FCA 385; (1985) 5 AAR 173.

[70] [2013] HCA 41; [2013] 250 CLR 246.

[71] Comcare v PVYM [2013] CLR 246 ('Comcare v PVYM'), [12].

[73] [1992] HCA 21; (1992) 173 CLR 473.

[74] [2022] TASFC 11.

[76] For instance, Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126.

[77] Nazar v Hydro Electric Corp [2022] TASFC 11, [14].

[78] Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141 ('Zlateska').

[82] [1964] HCA 34; (1964) 110 CLR 626, 641.

[83] [1985] FCA 385; (1985) 5 AAR 173.

[84] Australian Telecommunications Commission v Tzikas [1985] FCA 385; (1985) 5 AAR 173,194-195.

[85] [1990] FCA 773 '('Boyd').

[87] [2018] AATA 4357 ('Hutchinson').

[90] [2019] AATA 4196.

[91] Weatherburn and Comcare (Compensation) [2019] AATA 4196 ('Weatherburn'), [114] - [115].

[94] Exhibit "MS-1" to the Stanarevic affidavit, 'Respondent's statement of issues, facts and contentions, to the Administrative Appeals Tribunal in Re Abishek Mishra and Comcare', 180-189.

[95] Exhibit "AC-1" to the Chritopher affidavit, 12.

[97] Exhibit "MS-1" to the Stanarevic affidavit, 155-159.

[98] Exhibit "AC-1" to the Christopher affidavit, 14.

[99] Exhibit "MS-1" to the Stanarevic affidavit, 53.

[100] Exhibit "AC-1" to the Christopher affidavit, 146.

[101] [2013] NSWCA 5; [2013] 274 FLR 338 ('Waters').

[104] [2019] FCAFC 57; (2019) 269 FCR 18 ('Snell').

[107] Ibid, [71]; See also Plumb v Comcare [1992] FCA 595; (1991) 39 FCR 236, in which the Full Federal Court held that the AAT was not functus officio as it had a power of reconsideration.

[109] Flaviano [1996] NSWSC 451; (1996) 40 NSWLR 199, 203.

[110] He says s 45 is not relevant: see transcript, 60.26-27.

[114] Submissions filed by first defendant on 18 September 2023, [9]-[17].

[115] Airservices Australia v Austral Pacific Group Ltd (1998) 157 ALR 125.

[116] Note: The 2018 Bill supplanted the 2017 Bill of the same name. When relevant, the extraneous material which accompanied the 2017 Bill will be referenced.

[117] Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019, Pt. 3.

[121] Explanatory Memorandum, Treasury Laws Amendment (Enhancing Whistleblower Protection) Bill 2017, 1.21, 4.1.

[124] Explanatory Memorandum, Treasury Laws Amendment (Enhancing Whistleblower Protection) Bill 2017, 1.10.

[125] BDR21 v Australian Broadcasting Corporation (2023) 167 ACSR 504 ('BDR'), [98].

[128] See: Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 252 CLR 1; (2013) 294 ALR 608 at 631 [98] - [100] ('Eaton').

[129] Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 276; [1961] HCA 32; [1961] ALR 650 at 652-3. It is to be noted that, though Fullagar J expressed this within the context of two State Acts, the assumption applies to any pair of provisions enacted by the same legislature. It has been applied to Commonwealth laws see e.g., Eaton (n127) [98] (Gageler J).

[130] See: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 10 per Barton J, citing W.F. Craies, Statute Law 1ed (Sweet and Maxwell, London, 1907).

[131] See: Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; (2006) 224 ALR 238 at 251; see generally: D.C. Pearce, Statutory Interpretation In Australia 10ed (LexisNexis, Australia, 2024) pp. 339-340.

[132] And, given they are clones of the Corporations Act provisions, sections 14ZZX and 14ZZZA of the Taxation Administration Act 1953, respectively.

[133] Explanatory Memorandum, Treasury Laws Amendment (Enhancing Whistleblower Protection) Bill 2017, 2.137.

[134] Nor is there such a provision in Part IVD of the Tax Administration Act 1953, where its whistleblower protections reside.

[135] Supplementary Explanatory Memorandum, Treasury Laws Amendment (Enhancing Whistleblower Protection) Bill 2017, 1.16 - 1.20.

[136] Phillip Moss AM, Review of the Public Interest Disclosure Act 2013 (2016), 6.

[140] Supplementary Explanatory Memorandum, Treasury Laws Amendment (Enhancing Whistleblower Protection) Bill 2017 1.16. Technically, the Bill implemented recommendation 5.1 of the Joint Committee on Corporate and Financial Services, Parliament of Australia, Whistleblower Protections (2017), which in itself recommended implementing Recommendation 5 of the Moss review.

[141] Exhibit "AC-1" to the Christopher affidavit, 150.

[142] [2011] VSC 222; (2011) 35 VR 1 ('Ottedin Investments'), [18].

[143] Relying upon an authority concerning an appeal from the Magistrates' Court over workers' compensation payments: Pulling v Yarra Ranges Shire Council [2018] VSC 248, [84]-[86] (Bell J).

[144] [2013] VSCA 158, [35].