FEDERAL COURT OF AUSTRALIA

Comcare v Calipari [2001] FCA 1534

COMCARE v FRANK CALIPARI

A26 of 2001

FINN J

CANBERRA

8 NOVEMBER 2001

THE COURT ORDERS THAT:

1.                  The application be allowed.

2.                  The decision of the Administrative Appeals Tribunal dated 27 April 2001 be set aside.

3.                  The matter be remitted to a differently constituted Tribunal to be heard and determined again.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is a regrettable proceeding.  The respondent, Frank Calipari, has in effect conceded - and rightly so - that the Administrative Appeals Tribunal (“the Tribunal”) committed an error of law in applying the provisions of s 14(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to the circumstances giving rise to his claim under that Act for compensation for a workplace-related injury.  The only real issue between the parties is whether, notwithstanding the error made, only one result could have been reached by the Tribunal so that a remitter of it to the Tribunal would be futile.

The Error of Law

2                     Section 14(1) of the SRC Act creates a liability in Comcare to pay compensation to employees to who the Act applies in respect of injuries suffered which result in death, incapacity for work, or impairment.  Section 14(3) limits that liability in the following way:

“Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”

3                     Provisions of this type employing the “serious and wilful misconduct” formula have a long history in workers’ compensation legislation:  see eg Johnson v Marshall, Sons & Co Ltd [1906] AC 409.  For present purposes I would note that the word “serious” in the formula describes the misconduct in question and not the actual consequences of it.  Nonetheless, because the s 14(3) disentitlement arises where the injury is caused by the misconduct it is well accepted that the seriousness of the misconduct is to be evaluated having regard to whether that conduct would be attended by the risk of non-trivial injury:  see Johnson v Marshall, Sons & Co Ltd, at 416.

4                     On occasion judicial and scholarly exegesis of the formula has applied the term “serious” not only to the misconduct in question but also to the injury the risk of which is created or increased by the misconduct.  So in Hills v Brambles Holdings Ltd (1987) 4 ANZ Insurance Cases 60-785, for example, Green CJ in paraphrasing observations in several earlier decisions (including Marshall’s case) observed that for conduct to amount to serious and wilful misconduct, “it must [inter alia] be such as to give rise to an immediate risk of serious injury” (emphasis added) ibid, at 74,797;  see also Richards v Faulls Pty Ltd [1971] WAR 129 at 131-132.  This usage is unexceptionable if it is understood as signifying no more than the converse of trivial injury.  If it is intended to signify more than that and to postulate a positive requirement, it can find no justification in the terms of the statute itself nor in the general run of authoritative expositions of the formula.  The respondent concedes as much.

5                     In the present matter the Tribunal adopted and applied the formula used by Green CJ in Hills’ case, and in consequence required that “a risk of serious (being “very considerable”) injury” be apparent.  I should add that it equated “serious” with “very considerable” in reliance upon a like equation made in an earlier Tribunal decision that considered whether, notwithstanding that an injury was caused by an employee’s serious and wilful misconduct, the employee nonetheless should not be disentitled to compensation because, in the language of s 14(3), the employee had suffered “serious and permanent impairment”.  There is an obvious irony in the present matter in so using that decision on the express words of s 14(3).

6                     Having so designated the risk required to be shown, the Tribunal was not satisfied that Mr Calipari’s misconduct was such as to disentitle him under s 14(3) to compensation for his work-related injury.  In so doing it applied the wrong test and committed an error of law.

Remitter, the Factual Setting and the Tribunal’s Finding

7                     I need only refer briefly to the factual setting. 

8                     (i)         Mr Calipari while at work on 15 December 1999 repeatedly made offensive and distasteful remarks to a co-worker that went beyond office banter and were designed to antagonise and provoke the co-worker into some sort of reaction.  That conduct was characterised as misconduct.

9                     (ii)        The reaction it provoked - described as extreme - involved the co-worker in leaping over a dividing partition onto Mr Calipari’s desk and then assaulting him.  It was in this encounter that the injury was sustained.  The co-worker was known by Mr Calipari to be something of a bully and to be involved in martial arts.

10                  (iii)       This incident was not the only instance of Mr Calipari provoking co-worker reaction in the workplace.  He had been given several rebukes by supervisors in relation to his workplace language.

11                  Turning to the Tribunal’s findings that are of present relevance, it found:

(a)        Mr Calipari’s conduct “certainly gave rise to the risk of a physical reaction, or at least threat of such”;

(b)        Mr Calipari “may … have had an appreciation of the risk of some reaction which could result in injury”;  he “might reasonably have appreciated the risk of some physical injury as a result of engaging [the co-worker] in the way in which he did”;  but

(c)        because the risk and the appreciation thereof had to be of “serious injury”, his conduct did not give rise to such a risk nor was such a risk foreseen by him.

The findings in (c), as I have indicated, embodied the Tribunal’s error.

12                  I turn now to the question whether the Tribunal’s decision ought be set aside and remitted, necessarily, to a differently constituted Tribunal (significant adverse credibility findings were made).  It is well accepted that, on setting aside a decision of the Tribunal, this Court does not have a general power to substitute what it considers to be the correct decision in the circumstances.  The order making power of s 44(4) of the Administrative Appeals Tribunal Act 1975 (Cth) is a circumscribed one:  see Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 at 454 - 455.  Ordinarily, the finding of an error of law will result in the matter being remitted to the Tribunal for redetermination.  But the Court will not remit a matter when it would be manifestly futile to do so.  As Sackville J observed in Commissioner of Taxation v Polla-Mounter (FCA, 30 November 1995, unreported), when reiterating what he had said in Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562:

“if the Court hearing an appeal finds an error of law in the reasons of the AAT, but nonetheless considers that the decision was clearly correct on the material before the AAT, it is open to the Court to dismiss the appeal:  see, for example, Austin v Deputy Secretary, Attorney-General’s Department (1986) 12 FCR 22 (FCA/FC), at 26-27;  State Rail Authority of New South Wales v Collector of Customs (1991) 33 FCR 211 (FCA/FC), at 217.  Ordinarily this course will not be adopted unless only one result could have been reached by the AAT, had it correctly applied the law:  Secretary, Department of Social Security v McKenzie (1992) 31 ALD 55.”

13                  The Tribunal in the instant case has made a finding that Mr Calipari’s conduct gave rise to a risk of a physical reaction, or at least the threat of such.  But it made no unequivocal finding that he had an appreciation that that risk could have resulted in injury.  It couched its observations in this in terms that Mr Calipari “may have” and “might have” had such an appreciation.  What conclusion it would have arrived at had it correctly applied s 14(3) is, in consequence, not readily discernible from its reasons.

14                  For my own part, notwithstanding the unusual circumstances that here call for the possible application of s 14(3), I am not satisfied that a reasonable Tribunal correctly applying the law could only come to a decision favourable to Mr Calipari.  It is possible that, in reappraising the evidence, a contrary result could ensue.  The case is not one in which it would be manifestly futile to remit the matter to the Tribunal. 

15                  Accordingly I will order that the application be allowed, that the decision of 27 April 2001 be set aside and that the case be remitted to a differently constituted Tribunal to be heard and determined again.

Associate:

Dated:              8 November 2001