Marazzato, Nadia v Qantas Airways Ltd [1997] FCA 974

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 1174 of 1997

BETWEEN: NADIA MARAZZATO

Applicant

AND: QANTAS AIRWAYS LIMITED

Respondent

JUDGE: RYAN J

DATE OF ORDER: 19 SEPTEMBER 1997

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the orders made by Judicial Registrar Parkinson on 9 July 1997 be affirmed. 2. That the motion on notice dated 18 July 1997 be otherwise dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 1174 of 1997

BETWEEN: NADIA MARAZZATO

Applicant

AND: QANTAS AIRWAYS LIMITED

Respondent

JUDGE: RYAN J

DATE: 19 SEPTEMBER 1997

PLACE: MELBOURNE

REASONS FOR JUDGMENT This is an application for review of a decision of a Judicial Registrar on 9 July 1997 to order, amongst other things, the reinstatement of the applicant, Ms Marazzato, to the position of Fight Attendant in which she had been employed by the respondent ("Qantas") immediately before the termination of her employment. The review was conducted by reference to the evidence before the Judicial Registrar as recorded in the transcript and contained in documentary exhibits and an affidavit by Susan Gabrielle Ruth Varley who has, since February 1996, been the Cabin Crew Manager - Melbourne for Qantas. That evidence was supplemented, for the purposes of the review, by affidavits, all sworn 15 August 1997, by Dermot John Moody, the Rehabilitation Co-ordinator for Qantas, by Julie Wills, a Cabin Crew Duty Manager for Qantas, who, between 1990 and 1993, had acted as Rehabilitation Case Manager for Cabin Crew and by Dr Eric Donaldson, the General Manager, Aviation Health Services for Qantas. As well, an affidavit by the applicant herself was sworn and filed on 18 August 1997. The latter affidavit was principally concerned with correspondence between solicitors for the parties and payments which Ms Marazzato claimed to be entitled to receive by way of giving effect to the Judicial Registrar's order. None of the deponents to the affidavits to which I have just referred was cross-examined on the hearing of the review. However, I am relieved from the need to evaluate the credit of any witness because the primary facts found by the Judicial Registrar or disclosed by the subsequent evidence are not significantly in dispute. The issues between the parties turn essentially on the inferences to be drawn from those primary facts and the application of the relevant statutory provisions to the facts, including the inferences which the Court is persuaded to draw. The applicant commenced employment with Qantas as a Domestic Flight Attendant in April 1980. She was engaged in flying duties until October 1990 when she sustained a severe back injury in the course of a rough landing. She was incapacitated from work for more than three years. In April 1991 she was referred by Qantas to Occupational Rehabilitation Service Pty Ltd ("ORS") which arranged successive pain management programs and, in November 1991, instituted a trial return to work under which Ms Marazzato was to work as a Flight Deck Lounge Attendant for two months. However, the applicant abandoned that work after less than two weeks, indicating that she was unwell and "not ready to return to work". Thereafter, the applicant underwent physiotherapy and additional medical treatment under the auspices of ORS which, in April 1992, enrolled her in its back education program which extended to training in manual handling and techniques designed to prevent recurrences of back pain or reduce their severity. Between July 1993 and February 1994, Ms Marazzato's rehabilitation treatment was provided at the Austin and Repatriation Medical Centre. In January 1994, she was referred to Olympia Private Hospital for an intensive program of physiotherapy, hydrotherapy, occupational therapy, swimming, gymnasium work and a work-conditioning regime. In March 1994, a new rehabilitation provider, Work Solutions Group Pty Ltd, was engaged and undertook a work-site assessment in collaboration with Qantas to devise a basis on which the applicant could return to work for gradually increasing periods. She resumed work on that basis in April 1994, initially for a few hours a week which were built up to 24 hours a week. The work performed by the applicant was of a clerical and administrative nature. The arrangements under which it was performed have been described as follows by the learned Judicial Registrar: