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Lowis v Queensland Industrial Relations Commission

 

[2019] QSC 277

SUPREME COURT OF QUEENSLAND

CITATION:

Lowis v Queensland Industrial Relations Commission [2019] QSC277

PARTIES:

SHANNON WILLIAM LOWIS

(applicant)

v

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

(respondent)

FILE NO/S:

SC No 33 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

18 November 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

8 October 2019; Final submissions received 17 October 2019

JUDGE:

Crow J

ORDER:

Application dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – where respondent convened hearing for the purpose of the applicant objecting to the discontinuance of his employer’s appeal – where applicant applied to become a party to the appeal during hearing – where respondent refused application and discontinued the appeal – where applicant seeks judicial review of the decision to refuse the applicant becoming a party to the appeal – where respondent contends that no such decision was made as the respondent instead rejected the applicant’s objection to the discontinuance of the appeal – whether the decision is a decision of an administrative character – whether provision is made by a law under which the applicant is entitled to seek a review of the matter

Judicial Review Act 1991 (Qld) s 20, s 12, s 13

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s549, s 51, s 57, s 550, s 553, s 554, s 557, s 558, s 559, s 560, s 561, s 562

Acts Interpretation Act 1954 (Qld) s32CA

Industrial Relations (Tribunals) Rules 2011 (Qld)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s3

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

A New Tax System (Australian Business Number) Act 1999 (Cth)

Lowis v Workers’ Compensation Regulator [2019] QSC 5

Miles v Q-Comp [2013] QIRC 133

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361

Hamblin v Duffy (1981) 34 ALR 333

The Australian Workers’ Union of Employees, Queensland v State of Queensland; State of Queensland v Together Queensland, Industrial Union of Employees & Anor [2012] QCA 353

Pancontinental Mining Ltd v Burns (1994) 52 FCR 454

Griffith University v Tang (2005) 221 CLR 99

Medical Board of Queensland v Lip & Anor [2007] QSC 271

Kerr v Mack [2011] QSC 313

Medical Board of Australia v Judge Horneman-Wren & Leggett [2013] QSC 339

Owen v Menzies [2013] 2 Qd R 327

W & T Enterprises (Q) P/L v K O Taylor, Referee, Small Claims Tribunal & Ors [2005] QSC 360

Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245

Deng v Q-Comp [2011] QSC 191

COUNSEL:

The applicant appeared on his own behalf

S J Deaves for the Attorney-General of the State of Queensland

SOLICITORS:

The applicant appeared on his own behalf

Crown Law for the Attorney-General of the State of Queensland

Introduction

  1. [1]
    By application for review filed by MrLowis on 25 July 2017, MrLowis sought:

“Application to review the decision of the Respondent made on 28June 20111 to refuse to grant the applicant’s application to become a party to proceeding No WC/2016/247 made pursuant to s549(3)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

The applicant is aggrieved by this decision because:

  1. The proceedings have subsequently been discontinued without the Applicant being given an opportunity to participate in the proceedings.

The grounds of the application are:

  1. The making of the decision involved an error of law in that the Respondent does not have the discretion to refuse that the Applicant becomes a party to the proceeding.
  2. Further, or alternatively, the decision was affected by jurisdictional error as the Respondent failed to exercise the jurisdiction to make a decision.
  3. A breach of the rules of natural justice happened in relation to the making of the decision or failure to make the decision.
  4. The decision was otherwise contrary to law and any subsequent decisions in the proceeding are ultra vires.”
  1. [2]
    The relevant factual background to this matter is set out in Lowis v Workers’ Compensation Regulator[1].
  2. [3]
    On 11 February 2019, the respondent filed ‘abiding submissions’ consenting to abiding orders made together with an order that the Attorney-General for the State of Queensland be granted leave to appear as the amicus curiae to assist the Court.
  3. [4]
    Further procedural orders were made, culminating in MrLowis filing detailed written and supporting material. Similarly, the Attorney-General filed detailed written submissions and relied upon an affidavit of MsShelley filed 19March 2019.
  4. [5]
    The application then proceeded to oral hearing on 8October 2019.
  5. [6]
    MrLowis applies pursuant to s20(1) of the Judicial Review Act 1991 (Qld) (JRA) for a statutory order of review of the decision that he has identified in his application, namely the decision of the respondent (QIRC) who refused to grant his application to become a party to proceeding No. WC/2016/247.
  6. [7]
    Section 20(1) of the Act provides:

20 Application for review of decision

  1. (1)
    A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.
  1. [8]
    Section 4(a) of the Act provides:

4 Meaning of decision to which this Act applies

In this Act—

decision to which this Act applies means—

  1. (a)
    a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); …
  1. [9]
    MrLowis alleges the Decision was made pursuant to s549(3)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA).
  2. [10]
    Counsel for the Attorney-General submits that no such decision was made. The Attorney-General submits that MrLowis did not apply to the Commission to join in the appeal and as such there is no decision of administrative character made under an enactment which may be the subject of an application under s20(1) for judicial review. The Attorney-General submits that QIRC “did not refuse any application by the Applicant to join the appeal. On the contrary, the Respondent rejected the Applicant’s objection to the discontinuance of the appeal.”[2]

The First Issue

  1. [11]
    In order to determine whether MrLowis is correct that a decision was made on 28June 2017 to refuse his application to become a party to proceeding, it is necessary to have some reference to the history of the matter.
  2. [12]
    MrLowis was in a domestic relationship with MsInez Danielle Nixon from in or about 2004 until August 2016. MrLowis and MsNixon have two children. MsNixon was employed as a permanent part-time cook in Mackay and, according to MrLowis, has never set foot in the North Queensland Bulk Ports Corporation Limited (NQBP) facility nor had anything to do with NQBP. MrLowis is a registered civil engineer with broad and impressive industry experience.[3]
  3. [13]
    MrLowis was a contracting engineer and personally undertook to provide engineering services by reference to a written contract between NQBP and Hardcastle Engineering and Project Services (Hardcastle).Hardcastle was not a company, not a registered business name, and traded under an ABN which is registered to MsNixon. The only contract provided between NQBP and Hardcastle related to the period between 4April 2014 and 9October 2014. Mr Lowis alleges that the contract had been renewed on a number of occasions and that would appear to be correct.
  4. [14]
    As is set out in Lowis v Workers’ Compensation Regulator[4], MrLowis’ troubles began early in the morning of 22March 2015 when he received a sexually explicit text message from a female employee of NQBP. MsNixon read the message. Mr Lowis said of the message that it had “immediate negative consequences for … my marriage.”[5] Accordingly, MrLowis complained to NQBP management.
  5. [15]
    Three days later on 25March 2015, MrLowis received an apology from the female employee. Undeterred, however, the same offending female employee sent a further sexually explicit email to MrLowis on 27April 2015 causing MrLowis more distress. MrLowis discussed this with his partner MsNixon when he returned home from work on the afternoon of 27April 2015. Consequently, on Friday 1May 2015, MrLowis lodged a formal complaint with NQBP concerning the sexual harassment that he was subject to and the inaction by local management of NQBP to prevent the continuation of the sexual harassment.
  6. [16]
    MrLowis alleges, and it is not disputed that his contract with NQBP was due to expire on Friday 1May 2015 and that his contract was not renewed. It is plain that the events caused MrLowis considerable distress. On 4May 2015, MrLowis was admitted into the cardiac care unit in the Mackay Base Hospital in a critical condition with heart failure. He remained an in-patient for 15 days.
  7. [17]
    On 5May 2015, the day after MrLowis was admitted, MrLowis received a text message from a MrSantos stating “Hi Shannon I was advised that you were in hospital… I hope you are ok. I am also trying to have your contract extended. Should have been done already. It should be all okay.”[6]
  8. [18]
    The contract was not extended. As MrLowis concedes, however, he was unable to return to work due to his medical conditions, including his heart failure and psychological injury.
  9. [19]
    On 12June 2015, DrZhang, clinical director of cardiac services at the Mackay Base Hospital, completed a Workers’ Compensation Medical Certificate certifying that MrLowis was suffering from tachycardiomyopathy caused by high stress levels, a workplace incident, sexual harassment and poor sleep. That certificate was attached to an online claim form completed by MrLowis on or about 19 June 2015[7] and lodged with WorkCover on 19June 2015.
  10. [20]
    In that application, MrLowis claimed he had suffered from physical and psychological injury as a result of workplace stress and anxiety due to an ongoing sexual harassment incident. Importantly, MrLowis identified that his employer was NQBP. On the face of the employment application form, MrLowis declared that he worked 40 hours per week for the gross normal weekly earnings of $5,000 per week. In truth, NQBP paid Hardcastle through its ABN $5,000 gross per week.
  11. [21]
    MrLowis’ first claim was rejected on 7July 2015 because WorkCover Queensland did not consider MrLowis was a worker as defined in s11 of the WCRA.[8] MrLowis appealed that rejection to the Workers’ Compensation Regulator who upheld the decision, confirming by its letter of 24November 2015 that MrLowis’ claim was not one for acceptance.[9]
  12. [22]
    Two days later on 26November 2015, MrLowis lodged another application for WorkCover benefits for the physical injury of tachycardiomyopathy. WorkCover Queensland decided not to accept that application[10] with that application being rejected on 21June 2016.
  13. [23]
    In its decision of 21 June 2016[11] a further history is set out. The letter indicates that MrLowis appealed WorkCover’s decision again to the Regulator. On this occasion, however, on 19April 2016, the Regulator set aside the decision of WorkCover to reject the application for compensation and substituted a new decision that MrLowis was indeed a worker, but for Hardcastle. The Regulator having accepted that MrLowis was a worker, remitted the matter to WorkCover to determine whether MrLowis had suffered an injury as defined in s32 of the WCRA. WorkCover investigated the claim and rejected MrLowis’ second application, because MrLowis had failed to provide evidence that on the balance of probabilities, work was a significant contributing factor to the causation of the injuries.[12]
  14. [24]
    MrLowis’ application for compensation to WorkCover dated 26November 2015[13], describes the nature of the injury as “psychological system in general, Anxiety/stress disorder”. He further claimed that MrLowis’ employer was “Workcover Employer For Special Policies”. This is likely as a result of MsNixon’s failure to hold a policy of insurance with WorkCover Queensland.
  15. [25]
    In the affidavit of MsNixon filed 4April 2019, MsNixon confirms that MrLowis was her worker, that she held an “ABN for Hardcastle” and that MrLowis had been her partner for 12 years prior to separation in August 2016.[14] MsNixon has exhibited a number of documents to her affidavit. Exhibit IDN-1 is the Regulator’s reasons for Ms Nixon’s application for review.[15] It records that on 6July 2015, MsNixon also lodged an application for workers’ compensation benefits, claiming an injury of psychological stress and health issues said to have been sustained on 22March 2015 as a result of “workplace sexual harassment to my employee who was also my partner, (Shannon Lowis), occurring over a period of time at NQBP Workplace.”
  16. [26]
    MsNixon, in that application, alleged she was an employee of NQBP. That was clearly incorrect and on 9September 2015, the Workers’ Compensation Regulator confirmed the decision of WorkCover to reject MsNixon’s application for her own WorkCover benefits.
  17. [27]
    MsNixon also exhibits to her affidavit the decision of the Regulator of 23November 2016 to reject MrLowis’ application.[16] The decision runs to 11 pages, much of which summarises the complications which have arisen through multiple applications and multiple appeals and reviews. The Regulator’s reasons for decision dated 23November 2016 are important, because it correctly identifies the decision which is the subject of MsNixon’s appeal.
  18. [28]
    In brief, the reasons for decision record that MrLowis first lodged an application for compensation on 19June 2015, alleging both physical and psychological injuries due to the sexual harassment sustained whilst MrLowis was in the employment of NQBP. The decision records that WorkCover rejected the application because MrLowis was not a worker for NQBP and that the Regulator confirmed that decision on 24November 2015. That decision then records the subsequent history of the lodgement of the fresh application on 16December 2015 nominating Hardcastle as the employer, and that WorkCover also rejected that application finding that MrLowis was not a worker for Hardcastle under s11 of the WCRA.
  19. [29]
    The decision then records that MrLowis made an application for review to the Regulator to set aside the decision. The review succeeded, and the Regulator found that MrLowis was a worker for Hardcastle and remitted the matter back to WorkCover to determine whether MrLowis had suffered an injury within s32 of the WCRA. WorkCover then rejected MrLowis’ application on the basis that he had not suffered an injury within the meaning of the WCRA.
  20. [30]
    The Regulator also determined that MrLowis had not suffered an injury within the meaning of s32 of the WCRA, but for different reasons, namely, the Regulator found that MrLowis had suffered from a psychiatric injury that arose out of his employment. While the Regulator found the employment was the significant contributing factor for the injury, it also found that “[t]he injury arose out of reasonable management action taken in a reasonable way by Hardcastle in connection with [Mr Lowis’] employment”.
  21. [31]
    In accordance with the standard precedent, the senior review officer of the Regulator advised “[i]f either party disagrees with this decision then either party may appeal to the Queensland Industrial Relations Commission in Brisbane”.
  22. [32]
    Although MsNixon as the employer had ‘won’, she disagreed with the decision and on 19December 2016 she lodged an appeal with QIRC seeking to have the decision set aside on the basis that she, the employer, had not taken “reasonable management action”.[17]
  23. [33]
    The Notice of Appeal was filed on 21December 2016[18] and directions were made concerning the conduct of the appeal which required a s552A telephone conference to occur on 16February 2017.[19] That conference occurred on 22February 2017 after having been adjourned from 16February 2017.[20] The transcript summarises the further unusual circumstances that occurred.
  24. [34]
    On 23 December 2016, following the lodgement of MsNixon’s appeal, WorkCover sent to MrLowis an email of 23December 2016 advising MrLowis that MsNixon had appealed against the decision of the Workers’ Compensation Regulator.[21] While MrLowis could have only understood this decision as meaning that his application had been rejected, the email conversely also advised MrLowis “[i]n effect, this means that your employer has appealed the decision to accept your claim for compensation”. Plainly, the email of 23December 2016 was in error when it informed MrLowis that his claim for compensation had been accepted.
  25. [35]
    Counsel for the Regulator explained that the error was caused by “the fact that the regulator doesn’t have appeals where the employer is appealing a decision to reject a claim.”[22] Counsel for the Regulator further pointed out that the error had been explained to MrLowis in four separate telephone conversations and was also explained in the email from the Regulator of 7February 2017. The email of 7 February explained that the letter contained an administrative error and that the first sentence of the second paragraph “should read ‘reject’, not ‘accept’”.[23] WorkCover made an apology for that error.
  26. [36]
    On 6February 2017 MrLowis sent an email to the Regulator by which MrLowis expressed his gratitude that his claim had been accepted.[24] The email also included the following:

“I confirm that I seek to ‘exercise my right to become a party to this appeal’ and ‘assist the Regulator to defend its decision’ of my accepted claim.

Please contact me at your earliest convenience to discuss those rights and arrange for me to ‘join as a party to the appeal’.”

  1. [37]
    In the Regulator’s response of 7February 2017, the Regulator advised Mr Lowis:

“In relation to joining as a party to the appeal, you will need to make that enquiry directly with the Registry of the Qld Industrial Relations Commission on 1300 592 987.”[25]

  1. [38]
    It is apparent that MrLowis took up the suggestion of the Regulator because MrLowis by his email of 10February 2017 advised QIRC that:

“I am now considering joining as a ‘third party’ to the appeal. I will explain my position at the telephone conference set down for 16February 2017 which I seek your assistance to join.”[26]

  1. [39]
    As discussed above, the conference set down for 16 February 2017 was adjourned to 22February 2017. MrLowis was not invited to join in the conference and did not participate in the conference. The transcript of that conference records that MrLowis had expressed an interest that he wanted to be a party to the appeal but had not lodged any formal application to be joined as a party.
  2. [40]
    The Deputy President of the Commission then set the matter down for hearing before Commissioner Fisher for a conference so that “these sort of things can be ventilated”.[27] As it turns out Commissioner Fisher did not hear the matter but rather it was set down in front of Commissioner Roney on 31May 2017.
  3. [41]
    The transcript of the conference records[28] on the following exchange on page 3:

“COMMISSIONER RONEY:Can I say – my understanding of Mr Lowis’ position is that he will seek to either be joined in this action or to bring his own claim. Can I ask what your attitude is to that?

MS NIXON: Well, my attitude towards that is that MrLowis did suffer a workplace injury, and he is still suffering. He is the father of my two children.”

  1. [42]
    MsNixon, then confirmed that she would not object to MrLowis being joined in the action.[29] At the commencement of the conference, Commissioner Roney stated:

“MsNixon will join us first. MrLowis wants to be involved. My preliminary view is that his involvement might confuse things somewhat, and I propose to hear from him separately after hearing from MsNixon. I’m unclear what the position is as between the two of them.”[30]

  1. [43]
    Following an extensive discussion, Commissioner Roney sought to privately confer with MsNixon and did so. The recording of the open conference was ceased therefore at 9:54am and resumed at the direction of the commissioner at 10:05am.[31]
  2. [44]
    In paragraph 14 of her affidavit, MsNixon gives her recollection of the private conference with Commissioner Roney.[32] In short, MsNixon says that Commissioner Roney said that the prospects of MsNixon’s appeal were regarded as generally poor as opposed to MrLowis’ prospects in his Fair Work application which were considered to be better. MsNixon says of that discussion “[t]his made sense to me. I recall asking commissioner Roney to put to the respondent that they pay all of their own costs (to date) if I discontinued the appeal. I understand that condition was accepted by the respondent but I had no record of that at the time.”
  3. [45]
    In paragraph 17 of her affidavit, MsNixon says:

“MsNixon now concedes that she made a ‘poor decision’ to discontinue her employer appeal based upon the (11 minute ‘off the record’ discussion) with commissioner Roney.”

  1. [46]
    On 13July 2017, the Commission issued MsNixon with a Notice of Approval of Withdrawal.[33] MsNixon deposes in paragraph19 of her affidavit:

“Ms Nixon states that she now understands the gravity of her decision to discontinue the employer appeal which has dramatically and adversely affected the level of medical treatment ordinarily entitled to a ‘worker’ and that has significantly affected the workers (sic) recovery and his ability to provide for his family.”

  1. [47]
    Whilst in retrospect, Ms Nixon took the view that it was unwise to have discontinued her appeal, it is plain that she did not think so at the time. The logic of the decision can be seen at 8 of the transcript, in which MsNixon agreed that she had a valid policy of WorkCover insurance only for the period of the initial contract but did not renew it for the several further contracts because she was busy with her two small children and working.[34] MsNixon stated that she was “kicking [herself] for that”. The difficulty which has been caused by MsNixon failing to renew the policy was that MsNixon exposed herself to a fine of up to 275 penalty units ($36,688.75)[35] and penalties[36] including paying twice the premium owed and 50% of any compensation or damages paid.
  2. [48]
    In summary, MsNixon found herself in a position where she was an employer who had unlawfully failed to pay for workers’ compensation insurance whilst her partner MrLowis was working for her, and as a result potentially subjected herself to considerable fines and penalties. Whilst it plain that it may have been in MrLowis’ interests to appeal the WorkCover decision, it was not in MsNixon’s interest to appeal. From that perspective, the decision of MsNixon to discontinue her appeal in circumstances where the Regulator did not seek its costs, was an entirely reasonable decision. MsNixon’s appeal was the appeal WC/2016/247.
  3. [49]
    On 28June 2017, Commissioner Roney convened a further conference in the appeal, taking appearances from MsNixon, MrLowis and Mr Gray, counsel for the Regulator.[37] The conference was expressly said to be for the purpose of considering MrLowis’ “objection to the discontinuance of proceedings”.[38]
  4. [50]
    As the conference occurred on 28June 2017, it preceded the notice of approval for withdrawal by two weeks, as the notice of approval for withdrawal was dated 13 July 2017[39]. That is, before the withdrawal, MrLowis was afforded the opportunity that Commissioner Roney had referred to in the conference of 22February 2017. The transcript of the conference includes, on page 3, that MsNixon confirmed that she was happy with the outcome of the conference resulting in the discontinuance by MsNixon of her appeal. MsNixon confirmed that she was happy at the time of the conference, but since the conference had changed her mind.
  5. [51]
    MsNixon argued that the notice of discontinuance she signed and filed after the conference ought to have no effect. Commissioner Roney noted that although the notice of discontinuance had been signed and filed by MsNixon, it had not been issued by the QIRC “out of an abundance of caution” because Commissioner Roney identified Mr Lowis as someone who is objecting despite “the rules [requiring] that the person who objects has to be a party” to the appeal.[40] Commissioner Roney explained that “these proceedings are really convened as an indulgence to Mr Lowis.”[41]
  6. [52]
    In the hearing, MrLowis expressed his desire[42] to “be a party to this appeal”. Counsel for the Regulator objected to Mr Lowis’ becoming a party to the appeal because Ms Nixon had already filed a notice of discontinuance. Counsel for the Regulator referred to a decision of Miles v QComp[43] that held that once a Request for Discontinuance was filed, it could not be revoked.
  7. [53]
    The Commissioner explained to all parties the basis of MsNixon’s decision to discontinue as follows:[44]

“Now, at that time, MsNixon appeared to my mind to make a considered, sensible financial decision based, in part, on her own financial circumstances and the peculiar situation of being uninsured, with the consequences for her of recovery against her even if you were successful. So hence the observation if you win, you lose, because if successful, she would be funding the claim out of her own pocket, because she would be pursued by Workers’ Compensation.

It’s a very unusual set of facts but clearly one that does not favour MsNixon. And, of course, it’s her interest the Commission has to have principle regard to and consideration of.”

  1. [54]
    MrLowis made extensive submissions explaining that he did not wish to appeal in his own right because he had won four out of the five issues, and if he did appeal, the hearing would be “de novo” and that would mean that Mr Lowis may lose those four beneficial decisions.[45] MrLowis continued that he did not wish to appeal because “four out of five ain’t bad” but he did wish to join in the employer’s appeal on the fifth basis, namely that there was reasonable management action.
  2. [55]
    MrLowis then again stated that he wished to become a party to the appeal.[46] Commissioner Roney concluded that MrLowis had not brought his own application to review the decision of the Regulator, nor brought any formal application to be joined as a third party to MsNixon’s appeal.[47] Commissioner Roney concluded:

“… although he now today, on the 28th ofJune, brings an oral application to that effect. On all the material that I have looked at, I consider that the worker’s prospects of being joined as a third party would have been poor, noting the substantial objection taken by the regulator and the force that that objection carries.

The notice of discontinuance was executed by the parties to this dispute in good faith and after due consideration and conference. I have stayed the issue of the notice to allow the worker to be heard. That stay is an administrative process only. I’ve now heard from the worker. His objections to the process that has gone forth, I find to be misconceived and no effect of law. I consider I am obliged by the legislation to order the notice of discontinuance to issue. Thank you. That will be all.”

  1. [56]
    The above chronology shows that whilst the appeal was still on foot, MrLowis had expressed a wish to be joined as a party to the appeal of MsNixon. As with the balance of this matter, because of its complicated history, he subsequently stated that he wanted to consider his position[48] and then, in a complicated submission on 28June 2017, again affirmed his wish to be a party to the appeal in terms of s549(3)(a) of the WCRA.
  2. [57]
    Section 549 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides:

549Who may appeal

  1. (1)
    A claimant, worker or employer aggrieved by the decision (the appellant) may appeal to an appeal body against the decision of the Regulator or the insurer (the respondent).
  1. (2)
    An insurer aggrieved by a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi) may appeal to an appeal body against the decision of the Regulator.
  1. (3)
    If the appellant is an employer—
  1. (a)
    the claimant or worker may, if the claimant or worker wishes, be a party to the appeal; and
  1. (b)
    an insurer may, if the insurer wishes, be a party to the appeal if the appeal is against a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi).
  1. (4)
    If the appellant is WorkCover, an employer may, if the employer wishes, be a party to the appeal.
  1. [58]
    Although s32CA of the Acts Interpretation Act 1954 (Qld) applies with respect to the meaning of “may” it seems to me in the context of s549(3)(b) and 549(4) suggests that the election suggested by the word “may” depends upon the position of the party referred to in each sub-section.
  2. [59]
    In the present case under s549(3)(a), MrLowis, as a claimant or worker has expressed a wish to become a party to an appeal and prima facie therefore had a right to become a party to the appeal for any appeal which was competent and on foot.
  3. [60]
    That, however, does not conclude the matter. Section 549 needs to be read with s550 and s553 of the WCRA which provide:

550Procedure for appeal

  1. (1)
    The appeal must be made—
    1. if the appeal is about a review decision—within 20 business days after the appellant receives the notice of the review decision; or
    2. if the appeal is about a non-reviewable decision—within 20 business days after the appellant receives the notice of the decision stating the reasons for the decision.
  2. (2)
    For subsection(1)(b), if the notice of the decision did not state the reasons for the decision, the appellant must ask the respondent for the reasons for the decision within 20 business days after receiving the notice.
  3. (3)
    However, the appellant may ask the respondent to allow further time to appeal.
  4. (4)
    The appeal may be started only by filing a written notice of appeal with the appeal body.

(4A) If the appeal body is the industrial commission, the notice of appeal must be filed in the industrial registry.

  1. (5)
    If the appeal body is an industrial magistrate, the notice of appeal must be filed at—
  1. (a)
    the Magistrates Court nearest to the place where the appellant resides or, if the appellant is an employer, carries on business; or
  2. (b)
    a Magistrates Court agreed to between the respondent and the appellant.
  1. (6)
    The appellant must, within 10 business days after filing the notice of appeal, serve a copy of the notice on—
  1. (a)
    if the appeal is about a review decision—the Regulator; or
  2. (b)
    if the appeal is about a non-reviewable decision—the insurer.
  1. (7)
    If the appellant is an employer, the appellant must also serve a copy of the notice on the claimant or worker.
  2. (8)
    If a notice of appeal required to be filed in a Magistrates Court mentioned in subsection(5)(a) is filed in another Magistrates Court, the registrar of the other Magistrates Court may send any relevant documents to the registrar of the appropriate Magistrates Court.
  3. (9)
    If a notice of appeal required to be filed in a Magistrates Court is filed in the industrial registry, the industrial registrar may send any relevant documents to the registrar of the appropriate Magistrates Court.
  4. (10)
    If a notice of appeal required to be filed in the industrial registry is filed in a Magistrates Court, the registrar of the Magistrates Court may send any relevant documents to the industrial registrar.

553 Application of Uniform Civil Procedure Rules1999 and Industrial Relations (Tribunals) Rules2011

  1. (1)
    The Uniform Civil Procedure Rules1999, chapter7, part2 and chapter9, part4 and the Industrial Relations (Tribunals) Rules2011 apply to an appeal under this division with necessary changes.
  2. (2)
    However, if there is an inconsistency between a provision of the rules mentioned in subsection(1) and a provision of this division, the provision of this division prevails to the extent of the inconsistency.
  1. [61]
    In the present case, MsNixon was an employer who made an appeal and accordingly pursuant to s550(7) it was MsNixon who carried the obligation to serve copies of the notice on the claimant or worker. Pursuant to the statute, the notice is an important source of information to the worker in respect of the appeal which may cause a worker to make his election pursuant to s549(3)(a) to elect to join or not to join as a party to the appeal.
  2. [62]
    It is important to note that although time limits are contained in many of the subsections of s550, there is no time limitation placed specifically upon the election of a worker or claimant to be joined as a party to the appeal under s549(3)(a). Although s549(3)(a) provides for a right for a worker or claimant to be joined as a party to the appeal upon election, it is plain that the election must be made to the Commission. Then, pursuant to s553, the Industrial Relations (Tribunals) Rules 2011 apply to matters of procedure (with the exception of Chapter 7 Part 2 of the Uniform Civil Procedure Rules 1999 (Qld) with respect to non-party discovery and Chapter 9 Part 4 of the Uniform Civil Procedure Rules 1999 (Qld) with respect to alternative dispute resolution).
  3. [63]
    The provisions of the Industrial Relations (Tribunals) Rules 2011 (Qld) are sufficiently broad to enable applications for workers or claimants to be joined as parties to employer appeals. In the present case, such application was made, and only with clarity at a very late stage. In the present case, MrLowis has brought an application for judicial review on the basis that the commissioner erred in making the decision of 28June 2017 not to allow MrLowis to be joined as a party to MsNixon’s appeal.
  4. [64]
    Regardless of whether the decision of Commissioner Roney may be viewed as a decision made under s549(3)(a), or by the exercise of the court’s procedural powers pursuant to the Industrial Relations (Tribunals) Rules 2011 engaged by s553, I accept that the decision made by Commissioner Roney is made under an enactment. However, in order to be a reviewable decision, it must be a “decision to which this act applies” which requires it to be in terms of s4(a) of the Act, being a “decision of an administrative character made … under an enactment”.

Substantive Decision

  1. [65]
    In Australian Broadcasting Tribunal v Bond[49], Mason CJ, with whom Brennan J and DeaneJ agreed, said:

“The definition in s. 3(1) does not elucidate significantly the meaning of the worddecision’ as it is used in the A.D.(J.R.) Act. It is clear that adecision to which this Act applies’ must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the worddecision’ upon which the definition in s. 3(1) is based.

The word has a variety of potential meanings. As Deane J. noted in Director-General of Social Services v. Chaney, in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see Chaney.

In the context of judicial proceedings, the Privy Council has accepted thatthe natural, obvious and prima-facie meaning of the worddecision’ is decision of the suit by the Court’: seeRajah Tasadduq Rasul Khan v. Manik Chand;The Commonwealth v. Bank of N.S.W. But here the relevant context is not that of a decision reached in curial or judicial proceedings, so that the meaning must be determined by reference to the text, scope and purpose of the statute itself.

The fact that the A.D.(J.R.) Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the worddecision’. In this respect it is significant that s. 5 does not speak offinal decision’. It is also significant that the jurisdiction of the Federal Court to grant declaratory relief is not confined to granting relief in respect of ultimate decisions. The jurisdiction extends to questions in issue in pending proceedings: cf.Forster v. Jododex Aust. Pty. Ltd. per Gibbs J. The existence of this jurisdiction, which antedated the A.D.(J.R.) Act, suggests that the concept of a reviewable decision is not limited to a final decision disposing of the controversy between the parties.

Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s. 3(1) toa decision of an administrative character made … under an enactment’ indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s. 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J.,a determination effectively resolving an actual substantive issue’. Thirdly, s. 3(3), in extending the concept ofdecision’ to includethe making of a report or recommendation before a decision is made in the exercise of a power’, to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended thatdecision’ comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s. 3(5) suggests that acts done preparatory to the making of adecision’ are not to be regarded as constitutingdecisions’ for, if they were, there would be little, if any, point in providing for judicial review ofconduct’ as well as of adecision’.

The relevant policy considerations are competing. On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept ofdecision’ is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpretdecision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewabledecision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s. 3(2)(g), the instances of decision mentioned in s. 3(2) are all substantive in character. Moreover, the provisions in sub-ss. (1), (2), (3) and (5) of s. 3 point to a substantive determination. In this context the reference in s. 3(2)(g) todoing or refusing to doany other act or thing’ (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s. 16(1)(b) or in par. (e) of Sched. 1 or par. (a) of Sched. 2 to the A.D.(J.R.) Act any contrary implication. These exclusions from the A.D.(J.R.) Act or from s. 13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.

Ifdecision’ were to embrace procedural determinations, then there would be little scope for review ofconduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is theconduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept ofconduct’ than with the notion ofdecision under an enactment’.”

  1. [66]
    The Judicial Review Act 1991 (Qld) is based upon the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Relevantly, the Queensland Act deploys the same words but contained in different sections as the Commonwealth Act. In particular, with reference to the reasons of MasonCJ, s3(1) of the Commonwealth Act is the same as s4 of Queensland Act, s3(2) of the Commonwealth Act is the same as s6 of the Queensland Act, s3(2) of the Commonwealth Act is the same as s5 of the Queensland Act, s3(3) of the Commonwealth Act is the same as s6 of the Queensland Act and s3(5) of the Commonwealth Act is the same as s8 of the Queensland Act.
  2. [67]
    As MasonCJ said at page 337, an essential quality of a reviewable decision is that it be a substantive determination, however, as Mason CJ said at page 336 not every substantive decision is reviewable. Plainly, procedural determinations are not considered substantive and not considered reviewable. The example given by Mason CJ is an adjournment application. Mason CJ said at page 337, generally but not always, a reviewable decision is a substantive decision that in a practical sense is operative, determinable, or final in respect of the issue falling for consideration.
  3. [68]
    It may be accepted that most decisions made preliminary to a hearing are properly classified as procedural. In the case of a party being denied the opportunity to appear at the hearing the particular preliminary decision must be not only substantive but also fulfil the criteria of being final, operative or determinative, at least in a practical sense, of the issue falling for consideration. Here, the issue falling for consideration is whether the MrLowis, suffered an injury. In circumstances where Ms Nixon decided to discontinue her appeal, the decision to refuse Mr Lowis leave to join the appeal had the character of finality and was a substantive decision. I therefore accept the Mr Lowis’ argument that the decision made by Commissioner Roney not to accept his application to be joined as a party to MsNixon’s appeal is ‘a decision’ within the meaning of s4 of the JRA.
  4. [69]
    I further accept the applicant’s argument that the decision is ‘made under enactment’. Section549(3)(a) of the WCRA provides for the applicant as a claimant or worker to be a party to an appeal and whilst pursuant to r9 of the Industrial Relations (Tribunals) Rules 2011 (Qld). While, MsNixon, as the applicant, had carriage of the proceedings, rule41 provides broad powers with respect to directions which may be made by the Commission regarding the parties and conduct of the proceedings. Additionally, I note the definition of party “for part 3, may include a person ordered or permitted to appear in proceeding.”[50]
  5. [70]
    As Mason CJ explains in Bond, as a matter of policy, not all decisions made by an administrative body may be subject to review as that would “lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process”.[51] This is to be balanced with the public policy of enacting legislation “to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes.”[52]Furthermore, it is not a matter for the courts to resolve those policy arguments but rather understand them and then answer them by “textual and contextual considerations” within the legislation itself.[53]
  6. [71]
    I conclude that the decision of Commissioner Roney is a substantive decision which is final, operative, or determinative in a practical sense of the issue falling for consideration, namely, whether the applicant suffered an injury within the meaning of the WCRA. I therefore conclude that the decision of Commissioner of Roney is a decision to which the Act applies and which is “made under enactment”. However, it is also necessary for the decision to be reviewable under the JRA to be of “an administrative character”.

Decision of Administrative Character

  1. [72]
    In Tasmanian Beweries[54], Kitto J described decisions of an administrative character as follows[55]:

“Thus the work of the Tribunal is work which would be appropriate for the legislature itself to do if it had the time to consider individual cases. It would be obviously impracticable for the Parliament to apply its own ideas as to what is contrary to the public interest, either by passing a special Act for every individual case or by laying down a definition which in every case would be sure to produce a result satisfactory to it. There is probably no practicable alternative to setting up an authority which with some but incomplete guidance from the legislature will apply its own notions concerning the public interest. This course theTrade Practices Actadopts, contenting itself with prescribing the qualifications for membership of the Tribunal, giving a limited measure of guidance, and then relying upon the Executive's choice of members to ensure, so far as assurance is possible, that the notions applied will be such as the Parliament would approve.”

  1. [73]
    After referring to several earlier authorities, Kitto J said:[56]

“Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.

The powers of the Tribunal do not present any such feature, and they are not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations. The Commissioner alone is authorized to institute proceedings before the Tribunal. He is of course a party to the proceedings (see e.g. s. 71), but he does not come before the Tribunal asserting a right to relief in either a personal or a representative capacity.”

  1. [74]
    In Hamblin v Duffy[57], Lockhart J, stated:

The phrase ‘decision of an administrative character’ suggests to me that the Judicial Review Act looks more to the nature or character of the decision itself than to the person or body making the decision. But the identity of the particular person or body must be relevant.

An exhaustive statement of the persons and bodies whose decisions are susceptible of review under the Judicial Review Act would be undesirable, prolix and repetitive. It is sufficient for present purposes to say that they include inferior statutory tribunals, and persons or bodies required to act judicially, though not, of course, courts exercising the judicial power of the Commonwealth: see generallyde Smith's Judicial Review of Administrative Action, 4th ed, pp 12–21;Halsbury's Laws of England, 4th ed, vol 1, paras 146, 148 and 149.

The expression ‘decision of an administrative character’ is incapable of precise definition; but in my opinion it includes at least the application of a general policy or rule to particular cases; the making of individual decisions. A decision which is required to be made, whether in the exercise of a discretion or not, is expressly included by s 3(1).”

  1. [75]
    Whilst I am prepared to assume QIRC is a court of the State of Queensland[58] it is necessary to “look more to the nature of or character of the decision itself.”
  2. [76]
    In Pancontinental Mining Ltd v Burns[59], von Doussa J analysed the context in which the decision sought to be reviewed was made and said:[60]

“Whilst it is the particular decision of the Tribunal to refuse to set aside the summonses which must be categorised as a ‘decision of an administrative character’ to attract the jurisdiction of the Court, it is necessary to consider that decision in the context of, and as part of, the process in which the refusal occurred. The phrase ‘decision of an administrative character’ is to be given a wide construction to reflect that ‘administration’ is not, as a rule, if ever, an isolated end but is part of a process: Evans v Friemann (1981) 53 FLR 229 at 237. Here the process under way before the Tribunal was the review of administrative decisions by a Tribunal empowered to exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision under review: s 43(1) of the AAT Act. The power of review is an administrative power. The issue of the summonses by the registrar of the Tribunal was plainly an administrative act in aid of the conduct of the review. The refusal to set aside those summonses by the Tribunal was a decision made in the course of the exercise of the administrative power of the Tribunal. It was a step in that process, and was an administrative function: cf Love v Attorney-General (NSW) (1990) 169 CLR 307 at 322; Ferris v Director of Quarantine (Cth) (1991) 29 FCR 147 because the Tribunal was required to act judicially, and in doing so was required to, and did, receive lengthy submissions on fact and law from counsel for the parties. The requirement to act judicially and to extend natural justice to each of the parties with an interest in the decision is no more than the requirement of the way in which the Tribunal is to perform its administrative function: Lamb v Moss (1983) 76 FLR 296 at 321; Love v Attorney-General (NSW) at 321-322. Nor does the decision cease to be one of an administrative character because it was based on conclusions on disputed questions of fact and law: cf Ross v Costigan (No 2) (1982) 64 FLR 55; Queensland v Wyvill (1989) 25 FCR 512. In my opinion the refusal by the Tribunal was a ‘decision of an administrative character’.”

  1. [77]
    In Griffith University v Tang[61] Gummow, Callinan and Heydon JJ said:

“63.The second element of the definition to which attention is given by the case law is the expression ‘of an administrative character’. The evident purpose here is the exclusion of decisions of a ‘legislative’ or ‘judicial’ character. The instability of the distinctions which the statute thus preserves may be appreciated by regard to two Federal Court decisions. In Queensland Medical Laboratory v Blewett, a ministerial decision which took effect by substituting a new table of fees for the table set out in a Schedule to the Health Insurance Act 1973 (Cth) was held to have a legislative rather than an administrative character. Thereafter, in Federal Airports Corporation v Aerolineas Argentinas, a determination by the Corporation in exercise of power conferred by the Federal Airports Corporation Act 1986 (Cth) to make determinations fixing aeronautical charges and specifying those by whom, and the times at which, the charges were due and payable was held to have an administrative rather than legislative character.”

  1. [78]
    Daubney J in Medical Board of Queensland v Lip & Anor[62]carefully reviewed the leading authorities including Tasmanian Breweries, of which he said at paragraphs 35 and 36:

“[35]That the eye of Windeyer J was also on ‘judicial power’ is clear from this statement:

We are not here concerned with the nature of the judicial process but with the nature of the judicial power. A body whose primary purpose is administrative does not become a court merely because it must act judicially.

[36]Justice Windeyer canvassed the principal authorities in which statements of principle concerning ‘judicial power’ had been made, including the judgment of Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead. His Honour also referred to the following statement by Lord Sankey in the Privy Council in Shell Co of Australia Ltd v Commissioner of Taxation:

The authorities are clear to show that there are tribunals with many of the trappings of the court which, nevertheless, are not courts in the strict sense of exercising judicial power. … In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a court in the strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a court. 6. Nor because it is a body to which a matter is referred by another body.

See R v Electricity Commissioners [1924] 1KB 171.”

  1. [79]
    In Kerr v Mack[63], Justice North observed:

“[7] Authority in this State also recognises that committal proceedings in the Magistrates Court are primarily, if not exclusively, ministerial in character rather than judicial in character. But in the instant proceedings the magistrate was not conducting a direction hearing under section 83A of the JA ancillary to committal proceedings. The proceedings on foot in the Magistrates Court were summary charges for offences. In that circumstance his Honour was exercising a jurisdiction ‘as a Court of trial’ and jurisdiction ancillary thereto. The magistrate was exercising a judicial power in the case management of a pending matter awaiting determination by trial in that Court. In the premises the decision of the magistrate was not ‘administrative in character’ but, being ancillary to judicial proceedings was not within section 4(a) of the JRA. Consequently, and not without some misgiving, I uphold the preliminary jurisdictional objection raised by the second respondent. I mention misgivings because it does appear to me, as it appeared to his Honour, that there would be benefit in having the applicant psychiatrically assessed for the purposes of the proceedings before him and there is some attraction in the applicant's contention that his Honour may have taken an irrelevant consideration into account in the exercise of his discretionary power to decline the application.”[64]

  1. [80]
    Finally, in Medical Board of Australia v Judge Horneman-Wren & Leggett[65], Dalton J observed:

“[11]As to the first point, the distinction between administrative and judicial power isauthoritatively stated in Brandy v Human Rights & Equal Opportunity Commission.Judicial power is characterised by the making of a binding and authoritative decision, whether that decision is subject to appeal or not.The decision is reached by application of a judicial method: ‘… by applying the relevant principles of law to the facts as found’ – p 258.The point of a judicial decision is that it ascertains, and adjudicates upon, the rights of the parties.If a decision has these characteristics, it does not matter that it is made by a Tribunal and not a Court, the exercise of power, and the decision, is judicial.

[13] In this matter, as part of the judicial process being carried out in QCAT, an interlocutory application was made, expressly pursuant to s 64 or alternatively s58 of the QCAT Act.It was made on the papers pursuant to s 32 of the QCAT Act.That is part of Chapter 2 Part 2 of the QCAT Act which deals with practice and procedure.Section 28(3) obliges QCAT to observe the rules of natural justice.The Medical Board had every opportunity to place before the Deputy President anything it wished to in support of its application.It also had the opportunity to reply to DrLeggett’s submissions.The decision of the Deputy President was an interlocutory one, but nonetheless authoritative as to the Board’s right to amend its pleading.It was made by applying the relevant law to the facts.It binds the parties to it.It is a judicial decision.”

  1. [81]
    Courts have generally sought to avoid giving the phrase “administrative character” too narrow a construction recognising the judicial review acts are remedial.[66] It is also clear that it is the decision and not the subject matter of the decision which must be of administrative character.[67] Furthermore, the character of the decision maker is generally not relevant[68] but not completely irrelevant to characterisation.[69] For example, the Court of Appeal in Owen v Menzies[70] held that QCAT is a ‘court’ yet s 156 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) contemplates Part 3 of the JRA applying to decisions made by QCAT which are of an administrative character. As Deane J pointed out in Bond, the existence of a requirement to proceed judicially in non-curial statutory decision-makers, does not mean its decisions should be characterised as judicial.[71]
  2. [82]
    In this case, the decisions made by the officers of WorkCover Queensland to accept or reject applications for compensation are administrative in nature, as are the internal review procedures[72] and the Regulator’s power to review decisions.[73] This application, however, relates to the classification of the actions of QIRC exercising its review and appeals functions pursuant to Chapter 13, Part3, Division 1 of the WCRA. It is the decision of Commissioner Roney in the context of those sections which require close examination in order to determine whether its character is administrative.
  3. [83]
    Relevantly, s550 provides for the procedure of the appeal, including notification of all parties who may be affected by an appeal. Section 552B allows legal representatives at the hearing by agreement of the parties or by the appeal body’s leave. As previously noted, s553 applies the Industrial Relations (Tribunals) Rules 2011 (Qld) to the appeal process. Section554 requires the exchanging of evidence a minimum of 10 days prior to the hearing. Section 556 provides a procedure to obtain additional medical evidence and section 557 provides broad powers in the appeal body, the QIRC, to order “anything necessary be supplied or defects or errors corrected.”
  4. [84]
    Importantly sections 558, 559 and 560 provide:

558Powers of appeal body

  1. In deciding an appeal, the appeal body may—
  1. confirm the decision; or
  2. vary the decision; or
  3. set aside the decision and substitute another decision; or
  4. set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
  2. Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.

559 Decision of appeal body

The appeal body must give a written copy of the decision to each party.

560 Recovery of costs

  1. If the appeal body makes an order for costs, the amount ordered to be paid is a debt payable to the party in whose favour the order is made.
  2. The order may be filed in the registry of a court having jurisdiction for the recovery of a debt of the amount.
  3. On being filed, the order—
  1. is taken to be an order properly made by the court; and
  2. may be enforced as an order made by the court.
  1. [85]
    While the above provisions have the hallmarks of a judicial decision, care must be taken not to confuse proceeding judicially with the exercise of judicial power. The relevant decision which is the subject of review was a decision not to include Mr Lowis’ as a party to the appeal after Ms Nixon had filed a notice of discontinuance. It was not a substantive determination of the original decision of the Regulator on 23 December 2016 as contemplated by the review and appeal provisions in Chapter 13, Part3, Division 1 of the WCRA. It did not involve evaluations of rival contentions as the controversy was developed in evidence and argument[74] nor did it apply the relevant principles of law to the facts of the case as found.[75] It was a hearing convened for the purpose of providing Mr Lowis’, as a non-party to the appeal, the opportunity to voice his objection to the discontinuance of the appeal.
  2. [86]
    Prior to the hearing, Ms Nixon had filed a notice of discontinuance of the appeal. Mr Lowis had not filed any formal material to become a party to the appeal either before the notice of discontinuance was filed or the hearing. Nevertheless, Commissioner Roney stayed the issue of the discontinuance “out of an abundance of caution” and convened the proceedings “as an indulgence to Mr Lowis”.[76] It does not appear that Commissioner Roney was obliged to convene the hearing yet did so, and in any event, it is doubtful whether any such appeal was capable of remaining on foot after the filing of the notice of discontinuance. Commisioner Roney convened the hearing and Mr Lowis was afforded procedural fairness by being provided with the opportunity to be heard prior to the finalisation of the matter. While a decision was made during the hearing to exclude Mr Lowis as a party to the appeal, it seems to me that much more is required to categorise Commissioner Roney’s decision as the exercise of judicial power during a hearing which was convened for a fundamentally administrative purpose.
  3. [87]
    Different considerations may arise had the decision been made during the proper process of an appeal. However, for present purposes, it is sufficient to conclude that in this context, Commissioner Roney was proceeding judicially but the particular decision to exclude Mr Lowis from becoming a party to the appeal in the context of issuing the discontinuance falls short of being categorised as the exercise of judicial power. As the decision was not in the exercise of judicial power, and as ‘decision of an administrative character’ ought to be given a wide construction[77], I conclude that the particular decision to exclude Mr Lowis’ as a party to the appeal was a decision of an administrative character.

Rights of Review

  1. [88]
    MrLowis faces the further difficulty that s561 and s562 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides a right of appeal from the Industrial Commission to the Industrial court. The WCRA does not impose a time upon such an appeal and by s 561(2) the Industrial Relations Act applies to the appeal. Section 12 and section 13 of the JRA provides:

12 When application for statutory order of review may be dismissed

Despite section 10, but without limiting section 48, the court may dismiss an application under section 20 to 22 or 43 that was made to the court in relation to a reviewable matter because –

  1. (a)
    the applicant has sought a review of the matter by the court or another court, otherwise than under this Act; or
  1. (b)
    adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the court or another court.

13 When application for statutory order of review must be dismissed

Despite section 10, but without limiting section 48, if –

  1. an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and
  2. provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person;

the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.

  1. [89]
    In terms of s12(b) and s13(b) of the JRA, the appeal process to the Industrial Court provides adequate provision under which the applicant is entitled to seek review of Commissioner Roney’s decision. There is no evidence before the Court that Mr Lowis’ has sought to pursue this avenue for review.
  2. [90]
    In Deng v Q-Comp[78] Ann Lyons J said:

“[45] It is significant in my view that the WCR Act and the IR Act there is a comprehensive scheme of reviews and appeals and Mr Deng’s case is an example of how that regime in fact operates in practice. He has successfully availed himself of his review rights to date and his current appeal is listed for a mention next week in the Industrial Relations Commission. The IR Act also provides at s 320 that the Commission is not bound by technicalities, legal forms or rules of evidence and may inform itself on a matter it considers appropriate in the exercise of its jurisdiction. Section 267 specifically provides that the original and appellate jurisdiction conferred on the Commission by an Act is ‘exclusive of the jurisdiction of the Supreme Court or another court of Tribunal unless otherwise prescribed under this Act’.

[46] The comprehensive scheme includes an appeal to the Industrial Court pursuant to s 561 of the WCR Act which provides:

561 Appeal to industrial court

  1. (1)
    A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 1999 applies to the appeal.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. (4)
    The court’s decision is final.’

[47]Section 561(4) explicitly states that the decision of the Industrial Court is ‘final’ although there can be an appeal on the basis of jurisdictional error. In my view therefore there is a clear legislative intention that all such appeals and reviews be carried out within the regime which has been specifically established for that purpose. Accordingly not only is there a comprehensive review process under the WCR Act and the IR Act which Mr Deng has availed himself of but significantly the hearing before the Commission is in fact a hearing de novo.

[52] Ultimately I consider that there is a comprehensive and appropriate review process laid down in the WCR Act and the IR Act. As Holmes J held in Turner ‘I conclude that there is adequate provision for review of the matter by another court.’ In particular I agree with the remarks of Thomas J in Stubberfield v Webster that with respect to judicial review applications “it is therefore important that it be clearly understood that this remedy is not regarded as a substitute of the appellate system within the ordinary judicial process”.

  1. [91]
    Accepting, as I do, the accuracy of the analysis of Ann Lyons J in Deng, that s 561 of the WCRA makes adequate provision under which Mr Lowis is entitled to seek a review of the matter by another court, this raises a general discretion to dismiss under s 12 and a discretion to dismiss under s 13 where it is in the interests of justice to do so. Having regard to the interests of justice, I conclude for the following reasons that Mr Lowis’ application ought to be dismissed.
  2. [92]
    The difficulties which bedevil success for MrLowis in his application for compensation are manifest. The original claim form for workers’ compensation benefits[79] completed by MrLowis’ identified his employer as North Queensland Bulk Ports Group, that the person he reported the injury to was a MsStLedger (an employee of NQBP), and describes MrLowis as a ‘worker’ and a ‘contractor’. That application was lodged 19 June 2015. On 20June 2015, WorkCover also received an application from MsNixon claiming she also was an employee of North Queensland Bulk Ports Corporation Limited.[80] As is set out in Ms Nixon’s affidavit[81], MsNixon stated to WorkCover “that MrLowis signed the contract and communicates with NQBP about the work to be performed” and that MsNixon does “not have any direct contact with NQBP”. Furthermore, in that same document, it is recorded “[o]n 7July 2015, WorkCover’s communication report notes that MrPatrick Cunningham of NQBP advised that all communication with Hardcastle was through MrLowis and they have never spoken with you”.
  3. [93]
    ‘Hardcastle Engineering Services’ or ‘Hardcastle Engineering & Project Services’ does not exist as a legal person. The Regulator’s reasons for rejecting Ms Nixon’s application[82] records “an ABN search confirms that you are the sole trader registered to ABN 52 596 854693 with a trading name of Hardcastle Engineering & Project Services. The ABN was at some point registered for GST and was cancelled on 31July 2015”.
  4. [94]
    The dictionary to A New Tax System (Australian Business Number) Act 1999 (Cth) defines an ABN as “ABN (Australian Business Number) for an entity means the entity’s ABN as shown in the Australian Business Register”. The Australian Business Register is the register established under s24 of that Act. Pursuant to s7 of the Act a person carrying on an enterprise in Australia is entitled to an ABN. The existence of an ABN issued to MsNixon does not prove that MsNixon or anyone else is the employer of MrLowis. MrLowis has, in numerous documents, alleged that he is a contractor engaged by NQBP under a personal services agreement[83]. It is a curious conclusion, if one could be reached upon the evidence, that MsNixon has a contract with NQBP when MsNixon has never communicated with NQBP. Perhaps it could be suggested that MsNixon had delegated entirely her authority to MrLowis and MrLowis was MsNixon’s agent for the purposes of arranging for, entering into and conducting completely, a professional services contract with NQBP. However, there is no evidence to suggest this occurred, MsNixon has no engineering qualifications, and, Ms Nixon has had nothing to do with NQBP.
  5. [95]
    As set out in Regulator’s reasons for rejecting Ms Nixon’s application[84] a personal services consultancy agreement signed by the CEO of NQBP, Bradley Fish, lists Hardcastle as the contractor and NQBP as the principal. The only copy of the agreement provided indicates that the person who would execute the agreement on behalf of Hardcastle (MsNixon) was Shannon Lowis (contractor). The personal services consultancy agreement provides, in schedule3, that MrLowis was personally to perform all the services (unless otherwise authorised in writing by NQBP)[85].
  6. [96]
    Whilst the WCRA defines a worker in s11, and further by reference to schedule2 and an employer by reference to s30, there remains great difficulty and uncertainty in determining whether MrLowis is a worker, and if so, for whom, and determing what the nature and the scope of that contract is, if any, that MrLowis works under[86]. In terms of the labels “employee” and “employer” as referred to by the plurality in Hollis v Vabu Pty Ltd[87], the actual control tests[88] could never be satisfied as MsNixon never had the capacity to exercise actual control over her purported employee, MrLowis, as she has never been to the premises of NQBP.
  7. [97]
    Accepting that the test has moved from “the actual exercise of control to the right to exercise it”[89] it is necessary to examine the control of the agreement or arrangement, if any, between MrLowis and MsNixon in circumstances where, despite multiple reviews, no written contract arrangement or agreement has been produced. Again, despite the multiple reviews, I have been unable to locate any evidence of any oral contract, arrangement or understanding MrLowis and MsNixon. Whilst it is accepted that “it is the totality of the relationship of the parties that must be considered”[90], that perhaps highlights the difficulty here, in circumstances where MrLowis and MsNixon were de facto partners.
  8. [98]
    The fact remains, despite multiple reviews and a great deal of correspondence, it has not yet been identified what, if any, contract it is alleged MrLowis worked under with MsNixon, which is a fundamental requirement to be proved if it is to be accepted that MrLowis was a worker pursuant to s11(1)(a) of the WCRA. Assuming it could be accepted that MrLowis was a worker, then even more difficult questions in relation to the psychiatric or psychological disorder suffered by MrLowis. As a result of s32(5)(a) of the WCRA, if the disorder resulted from “reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment” it is not an “injury”.
  9. [99]
    In MsDixon’s Notice of Appeal to the QIRC[91] and Ms Nixon’s statutory declaration dated 20January 2016[92], MsNixon says that she disputes that “reasonable management action was allegedly taken in a reasonable way by Hardcastle” because she took “no management action”. Furthermore, MsNixon declares “I have taken no action at any time to manage the matter.”
  10. [100]
    In both documents, MsNixon proceeds to criticise the lack of reasonable management action taken by NQBP. Given that it is plain that MsNixon has had no dealings with NQBP, has not been to NQBP, has no experience or dealings with respect to engineering matters, and has “taken no action at any time to manage the matter” it is difficult to understand how it can be concluded that MsNixon had a contract with NQBP and employed her partner, MrLowis. It is also difficult to gauge what reasonable management action can be in any factual scenario when there has never been any management action, or indeed any action on behalf of the suggested employer, Ms Nixon, but rather, perhaps a complete delegation of all matters to Mr Lowis.
  11. [101]
    The substantial documentary material available on this application expose the manifest difficulties faced by MrLowis to succeed in his claim and demonstrate that his claim has little merit.
  12. [102]
    It must be borne in mind that the decision of Commissioner Roney forms part of a wider process of appeal and review. The WCRA clearly provides for a party to pursue their own appeal, and provides for other relevant parties to become a party to each respective appeal, should they wish. In this case, Mr Lowis made a conscious decision not to pursue his own appeal, and only expressed an intention to join as a party to his former partner’s appeal after the notice of discontinuance was filed, and in circumstances where it was clearly against his former partner’s interests to do so. Then, Mr Lowis sought to extend the time limitation in his own appeal, and was unsuccessful. Mr Lowis has already sought judicial review of that decision before this Court, and was also unsuccessful.[93] In my view, adequate provision is provided for in law under which Mr Lowis was entitled to seek review by the Industrial Court. In the circumstances, I consider it appropriate to dismiss Mr Lowis application under s 12(b) of the JRA as his claim has no merit. Furthermore, having regard to the interests of justice and as MrLowis claim has no merit, I consider that Mr Lowis’ application ought to be dismissed under s 13(b) of the JRA.

Footnotes

[1] [2019] QSC 5.

[2]Attorney-General’s Submissions filed 3 October 2019 paragraph 22.

[3]Bundle of documents filed 24September 2019 (Bundle of Documents) – document 23.

[4][2019] QSC 5 [6].

[5] Lowis v Workers’ Compensation Regulator [2019] QSC 5 [6].

[6]Bundle of Documents - document 25.

[7]Bundle of Documents - document 22.

[8] Bundle of Documents - document 26.

[9] Bundle of Documents - document 28.

[10] Bundle of Documents - document 28.

[11] Bundle of Documents - document 28.

[12] Bundle of Documents - document 28.

[13] Bundle of Documents - document 35.

[14] Affidavit of Inez Dixon filed 4 April 2019 paragraphs 1 – 4.

[15] Exhibit IDN-1 of the Affidavit of Inez Dixon filed 4 April 2019.

[16] Exhibit IDN-3 to the Affidavit of Inez Dixon filed 4 April 2019.

[17] Exhibit IDN-4 to the Affidavit of Inez Dixon filed 4 April 2019.

[18] Exhibit IDN-4 to the Affidavit of Inez Dixon filed 4 April 2019.

[19] Exhibit IDN-5 to the Affidavit of Inez Dixon filed 4 April 2019.

[20] ExhibitIDN-7 to the Affidavit of Inez Dixon filed 4 April 2019.

[21] Bundle of Documents - document 5.

[22] Exhibit IDN-7 to the Affidavit of Inez Dixon filed 4 April 2019.

[23] Exhibit MS-5 to the Affidavit of Madonna Shelley filed 19 March 2019.

[24] Exhibit MS-4 to the Affidavit of Madonna Shelley filed 19 March 2019.

[25] Exhibit MS-5 to the Affidavit of Madonna Shelley filed 19 March 2019.

[26] Bundle of Documents – document 10.

[27] Bundle of Documents – document 11.

[28] Exhibit IDN-8 to the Affidavit of Inez Dixon filed 4 April 2019.

[29] Exhibit IDN-8 to the Affidavit of Inez Dixon filed 4 April 2019 (T1-4).

[30] Exhibit IDN-8 to the Affidavit of Inez Dixon filed 4 April 2019 (T1-2).

[31] Exhibit IDN-8 to the Affidavit of Inez Dixon filed 4 April 2019 (T1-11).

[32] Affidavit of Inez Dixon filed 4 April 2019.

[33] Exhibit IDN-9 to the Affidavit of Inez Dixon filed 4 April 2019.

[34] Exhibit IDN-8 to the Affidavit of Inez Dixon filed 4 April 2019 (T1-8/40-47).

[35] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s51.

[36] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s57.

[37] Bundle of Documents – document 40.

[38] Bundle of Documents – document 40 (T1-2).

[39] Appendix A to exhibit IDN-9 to the Affidavit of Inez Dixon filed 4 April 2019.

[40] Bundle of Documents – document 40 (T1-4/32).

[41] Bundle of Documents – document 40 (T1-4/32).

[42] Bundle of Documents – document 40 (T1-8/24).

[43] [2013] QIRC 133.

[44] Bundle of Documents – document 40 (T1-9).

[45] Bundle of Documents – document 40 (T1-11).

[46] Bundle of Documents – document 40 (T1-12/9).

[47] Bundle of Documents – document 40 (T1-13 - T1-14).

[48] Paragraph [39] above.

[49] (1990) 170 CLR 321, 335-338.

[50] Industrial Relations (Tribunal) Rules 2011 (Qld) Schedule 2.

[51] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337.

[52] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 336.

[53] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337.

[54] The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361.

[55] The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 377.

[56] The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374.

[57] Hamblin v Duffy (1981) 34 ALR 333, 339.

[58] The Australian Workers’ Union of Employees, Queensland v State of Queensland; State of Queensland v Together Queensland, Industrial Union of Employees & Anor [2012] QCA 353 [11].

[59] (1994) 52 FCR 454.

[60] Pancontinental Mining Ltd v Burns (1994) 52 FCR 454, 462-463.

[61] (2005) 221 CLR 99, 123 [63].

[62] [2007] QSC 271.

[63] [2011] QSC 313.

[64] [2011] QSC 313 [7].

[65] [2013] QSC 339.

[66] Evans v Friemann (1981) 35 ALR 428, 433-4.

[67] Evans v Friemann (1981) 35 ALR 428, 433.

[68] Glenister v Dillon [1976] VR 550.

[69] Hamblin v Duffy (1981) 34 ALR 333, 339.

[70] Owen v Menzies [2013] 2 Qd R 327.

[71] (1990) 170 CLR 321, 365-366.

[72] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s538.

[73] Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Chapter 13 Part 2 of the Act ss539 to 547).

[74] W & T Enterprises (Q) P/L v K O Taylor, Referee, Small Claims Tribunal & Ors [2005] QSC 360 [53].

[75] Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245.

[76] Bundle of Documents – Document 40 (T1-4/32).

[77] Evans v Friemann (1981) 53 FLR 229 at 237.

[78] [2011] QSC 191.

[79] Bundle of Documents - Document 22.

[80] Bundle of Documents - Document 1.

[81] Exhibit IDN-1 of the Affidavit of Inez Dixon filed 4 April 2019, page 3.

[82] Exhibit IDN-1 of the Affidavit of Inez Dixon filed 4 April 2019, page 3.

[83] Bundle of Documents - Document 20.

[84] Exhibit IDN-1 of the Affidavit of Inez Dixon filed 4 April 2019, page 3.

[85] Affidavit of Inez Dixon filed 4 April 2019.

[86] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s11(1)(a).

[87] (2001) 207 CLR 21, 37 [33].

[88] (2001) 207 CLR 21, 41 [44].

[89] Plurality in Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 41 at [44] citing with approval the judgment of Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 29..

[90]Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [44] citing Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 29.

[91] Exhibit IDN-4 to the Affidavit of Inez Dixon filed 4 April 2019.

[92] Exhibit IDN-6 to the Affidavit of Inez Dixon filed 4 April 2019.

[93] Lowis v Workers’ Compensation Regulator [2019] QSC 5.

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Editorial Notes

  • Published Case Name:

    Lowis v Queensland Industrial Relations Commission

  • Shortened Case Name:

    Lowis v Queensland Industrial Relations Commission

  • MNC:

    [2019] QSC 277

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    18 Nov 2019

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status