Comcare v Friend [2024] FCAFC 4

Federal Court of Australia

Comcare v Friend [2024] FCAFC 4 Appeal from: Friend v Comcare [2021] FCA 837

File number(s): NSD 849 of 2021

Judgment of: RANGIAH, WHEELAHAN AND GOODMAN JJ

Date of judgment: 1 February 2024

Catchwords: ADMINISTRATIVE LAW — appeal – jurisdiction – where the proceeding below was commenced by originating application for judicial review of two purported decisions under s 48 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) – where the primary judge set aside both purported decisions – where the parties agreed that the purported decisions were affected by apprehended bias – whether there remained any justiciable matter before the Court on the appeal – liability to repay compensation under s 48 of the SRC Act does not depend on the making of any decision – if engaged, s 48(3) gives rise to a liability which may be enforced by a common law action in debt – there remained a justiciable controversy before the Court, being whether the primary judge's declaration was in error. WORKERS' COMPENSATION — statutory interpretation – appeal – where the respondent was an employee of the Australian Federal Police (AFP) until her employment was terminated on the ground of invalidity – where the respondent lodged a claim for compensation with the appellant pursuant to the SRC Act – where the appellant accepted the respondent's claim and provided compensation to the respondent including weekly payments – where the respondent lodged a complaint with the Australian Human Rights Commission alleging discrimination – where the respondent entered into a deed of release under which the AFP agreed to make a lump sum payment of $1,250,000 to the respondent in settlement of the complaint – where the appellant sought to recover from the respondent a sum representing the value of the compensation paid under the SRC Act to the respondent – where the appellant argued that the primary judge had erred in declaring that no part of the lump sum payment constituted damages or a recovery of damages within the meaning of s 48 of the SRC Act – where the appellant argued that the definition of "damages" in s 4(1) of the SRC Act supported a construction of s 48(1)(a) as encompassing damages extending to compensation under s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) – where the appellant submitted that the primary judge's construction of s 48 undermined its purpose of preventing double recovery – where the appellant submitted that the deed of release contemplated that the lump sum payment would have an effect on the respondent's statutory entitlements – the SRC Act establishes a comprehensive scheme for no-fault compensation – the parties accepted that the decision in Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; 231 FCR 403 established that a complaint to the AHRC is not "an action or other proceeding for damages" within the scope of s 44 of the SRC Act – coherence requires that references to "damages" in s 48 and s 4(1) are to damages recoverable in common law actions for damages – the appellant's proposed construction could have a chilling effect on the bringing of complaints under the AHRC Act – any over-compensation may be addressed in the assessment of compensation under the AHRC Act – the claim that was vindicated by the deed of release was the AHRC complaint in respect of unlawful discrimination, and not a common law claim for damages – no question of dissection of the lump sum arises, because the payment is properly characterised as being in settlement of the AHRC complaint, not any common law claim in respect of a compensable injury – appeal dismissed.