Green v President of the Industrial Court of Qld
[2009] QSC 180
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- Unreported Judgment
- Green v President of the Industrial Court of Qld[2009] QSC 180
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Green v President of the Industrial Court of Qld[2009] QSC 180
Green v President of the Industrial Court of Qld[2009] QSC 180
SUPREME COURT OF QUEENSLAND
CITATION: | Green v President of the Industrial Court of Qld & Anor [2009] QSC 180 |
PARTIES: | WILLIAM NOEL GREEN |
FILE NO/S: | QS942 of 2009 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 7 July 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 June 2009 |
JUDGE: | Dutney J |
ORDER: | the application is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – CERTIORARI – EXCESS OR WANT OF JURISDICTION – Where applicant seeks an order in the nature of certiorari quashing the first respondent’s decision which set aside a decision of an industrial magistrate – whether first respondent fell into jurisdictional error Industrial Relations Act 1999 (Qld), s 341(2) Judicial Review Act 1991 (Qld), s 41(2) WorkCover Queensland Act 1996 Workers’ Compensation Act 1916 Workers’ Compensation Act 1990 Workers’ Compensation and Rehabilitation Act 2003, s 36A, 561(4) Briffa v Q-Comp [2005] QIC 55 Craig v South Australia (1995) 184 CLR 163 Labaj v WorkCover Queensland [2004] QSC 189 Parker v President of the Industrial Court (Qld) & Q-Comp [2009] QCA 120 |
COUNSEL: | D Rangiah SC for the applicant G Long SC for the first respondent |
SOLICITORS: | Turner Freeman Lawyers for the applicant Crown Solicitor for the first respondent |
- The applicant seeks an order pursuant to s 41(2) of the Judicial Review Act 1991 (Qld) in the nature of certiorari quashing the first respondent’s decision of 31 October 2008 which set aside a decision of an acting industrial magistrate made in favour of the applicant.
- The applicant suffers from lung cancer. The disease was first diagnosed in the applicant’s left lung in June 2006.
- The applicant contends that the cancer was caused or contributed to by his exposure to asbestos over a period of five to six weeks when he was employed at the Plane Creek sugar mill at Sarina between April and May 1965.
- The applicant has been a heavy smoker for many years.
- Central to the application was the application of s 36A of the Workers’ Compensation and Rehabilitation Act 2003 (“the 2003 Act”). That section provides:
"36ADate of injury
(1)This section applies if a person-
(a)is diagnosed by a doctor after the commencement of this section as having a latent onset injury, and
(b) applies for compensation for the latent onset injury.
(2)The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained-
(a)whether the person was a worker under the Act when the injury was sustained,
(b)whether the injury was an injury under the Act when it was sustained.
(3)Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor's diagnosis.
(4)Subject to subsections (2) and (3), this Act applies in relation to the person’s claim as if the date on which the injury was sustained is the date of the doctor's diagnosis.
(5)To remove any doubt, it is declared that nothing in subsection (4) limits section 236.
(6) Subsections (2) to (4) have effect despite section 603.
(7)In this section--
relevant compensation Act means this Act or a former Act.”
- The expression “a former Act” is defined in the Schedule to the 2003 Act to mean the Workers’ Compensation Act 1916 (“the 1916 Act”), Workers’ Compensation Act 1990 (“the 1990 Act”), or the WorkCover Queensland Act 1996 (“the 1996 Act”).
- On 27 September 2006 the applicant made an application to WorkCover Queensland for workers’ compensation in relation to the lung cancer. That application was rejected by WorkCover on 10 March 2007.
- The applicant sought a review by the second respondent of WorkCover’s decision on 6 June 2007. That application was rejected by the second respondent on 7 June 2007.
- The applicant then appealed to the Industrial Magistrates Court. His appeal was allowed by an acting industrial magistrate on 19 June 2008.
- Applying s 36A of the 2003 Act, the acting Industrial Magistrate determined that the injury was sustained when the applicant was exposed to the asbestos in 1965 and, therefore, the applicable legislation was the 1916 Act. The significance of this finding was that under the 1916 Act the applicant needed only to demonstrate that his employment was a cause of the injury. Under the 1996 Act and the 2003 Act it was necessary to demonstrate that the employment was a significant cause. On the evidence, the acting Industrial Magistrate was satisfied that the exposure to asbestos contributed to the development of the lung cancer.
- The second respondent appealed to the Industrial Court on 8 July 2008. On appeal, the first respondent found that the exposure was not a significant cause of the cancer. The major contributor to the development of lung cancer was the applicant's long period of heavy smoking. The first respondent allowed the appeal, set aside the decision of the acting industrial magistrate and confirmed the second respondent's decision. The effect of allowing the appeal is that the applicant is not entitled to workers' compensation.
- The ground of the present application is that the first respondent fell into jurisdictional error by wrongly holding that until a tumour or cancer is ‘identifiable’, it has not been “sustained” within s 36A(2) of the 2003 Act and by misconstruing the expression "when the injury was sustained" in s 36A(2).
- Section 561(4) of the 2003 Act provides that the decision of the Industrial Court is final and no further right of appeal to a Full Bench of the Industrial Court, or any other court, is granted.
- Section 341(2) of the Industrial Relations Act 1999 (Qld) (“the IR Act”) provides for a right of appeal to the Industrial Court from the Industrial Magistrates Court. Section 349 applies to a decision of the Industrial Court made under s 341 and relevantly provides that:
“…
(2)The decision –
(a)is final and conclusive; and
(b)can not be impeached for informality or want of form; and
(c)can not be appealed against, reviewed, quashed or invalidated in any court.
(3)The industrial tribunal's jurisdiction is exclusive of any court's jurisdiction and an injunction or prerogative order can not be issued, granted or made in relation to proceedings in the court within its jurisdiction.
…”
- Despite the terminology of s 561 of the 2003 Act and s 349 of the IR Act, this court retains a power to set aside or quash a decision of the Industrial Court made without jurisdiction: see Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland [2007] 1 Qd R 1 at 4:
"[15] Despite the forcefulness of the language chosen for s.349(2) and (3), and its inviolability from the operation of the Judicial Review Act, a decision of the Industrial Court which it had no jurisdiction to make is amenable to judicial review and may be set aside or quashed. This is established by Carey v President of the Industrial Court of Queensland [2004] 2 Qd.R 359 per McPherson JA, 365-366 [4] and 371 [22] and Squires v President of the Industrial Court of Queensland & Ors [2002] QSC 272 in which Mullins J pointed out that:
‘... s.349(3) ... specifically proscribe[s] prerogative orders ... in relation to proceedings in the industrial tribunal within the jurisdiction of the industrial tribunal.
The express provisions of ss.349(2) and (3) ... therefore have the effect of excluding this court's jurisdiction in granting prerogative relief in respect of the decision of the [Industrial Court], if it was made within jurisdiction.’”
- To similar effect was the decision in Parker v The President of the Industrial Court of Queensland [2009] QCA 120. It follows, and the applicant accepts, that in order to have the decision set aside it is necessary to demonstrate jurisdictional error.
- The test for identifying jurisdictional errors differs depending upon whether the decision under review was made by a court or an administrative decision-maker. In Labaj v WorkCover Queensland [2004] QSC 189, Douglas J said, at [3]:
“The Industrial Court itself is a superior Court of record (see s 242 of the Industrial Relations Act 1999). It seems appropriate, therefore, when considering whether it has exceeded its jurisdiction to treat it as an inferior Court rather than as an administrative tribunal for the purposes of the discussion in Craig v South Australia (1995) 184 CLR 163 at 179-180. That decision recognised that inferior courts of that nature had authority to decide questions of law as well as questions of fact so that the power to review their conduct within jurisdiction was more limited than would be the case where an administrative tribunal had been made the subject of an application for review.”
- In Craig v South Australia (1995) 184 CLR 163 it was said at 176-180:
“An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.”
In Craig the Court distinguished between a jurisdictional error and an error within jurisdiction. Merely because the first respondent made an error, even an error of law, in determining a matter properly before him this court would have no power to intervene.
- The matter was recently made clear by Keane JA in the Court of Appeal in Parker v President of the Industrial Court (Qld) & Q-Comp [2009] QCA 120. Keane JA, with whom the other members of the court agreed, discussed the concept of jurisdictional error on the part of the present first respondent as follows:
“[32] As Hayne J said in Re Refugee Review Tribunal; Ex parte Aala ((2000) 204 CLR 82 at 141 [163]), the line between ‘jurisdictional error’ and error within jurisdiction is often difficult to discern. The abstract notion of jurisdictional error affords little assistance in the determination of the question of statutory construction involved in determining whether error goes to jurisdiction. That is because "jurisdictional error" is the expression of a conclusion rather than an explanation of the process of reasoning whereby that conclusion is to be reached. The task of any court in seeking to discern where the line has been drawn by the legislature in any particular case is essentially one of statutory interpretation. In this case it is not said that there has been a failure to accord the parties procedural fairness, or a failure to observe an express statutory command as to the exercise of the Industrial Court's function on such an appeal.
[33] Jurisdiction to resolve the controversy between the parties which came before the President of the Industrial Court was conferred by s 248 of the Industrial Relations Act 1999 (Qld) and s 561 of the WCR Act. Section 248(1) of the Industrial Relations Act provides relevantly that the Industrial Court ‘may … perform all functions and exercise all powers prescribed for the court by this or another Act’.
[34] Accordingly, the task of statutory interpretation, so far as the scope of the jurisdiction of the Industrial Court on appeal from the Industrial Magistrate is concerned, depends upon the construction of s 561 of the WCR Act. On the face of s 561 of the WCR Act, the Industrial Court has jurisdiction to hear and determine appeals from decisions of the Industrial Magistrate.
[35] If there is a duly constituted appeal from an Industrial Magistrate, then the Industrial Court has jurisdiction to hear and determine that matter. The exercise of the jurisdiction of the Industrial Court to determine appeals from an Industrial Magistrate must inevitably involve the interpretation of the substantive provisions of legislation which give rise to the controversy between the parties. There is nothing in s 561 of the WCR Act which offers even the faintest support for the idea that the determination of the proper construction of substantive provisions of the WCR Act such as s 32(1) and (5) is not an issue committed to the jurisdiction of the Industrial Court. Indeed, s 561(4) of the WCR Act strongly suggests that the contrary is the case.”
- In this case what is said to constitute a jurisdictional error, at best, is merely a complaint that the first respondent fell into error in his construction of the statute which was properly before him. This assumes that when an injury is sustained in this particular case involves a question of statutory construction. Ordinarily, this would be a question of fact. The first respondent concluded that the evidence did not establish that the exposure to asbestos played any significant role in the development of the cancer. In any case, he drew a distinction between the exposure to a risk and the subsequent development of the illness. These seem to me to be findings of fact. Despite this, for the purposes of this argument, I am prepared to assume that the case turns on a legal definition of “sustained” in s 36A(2) of the 2003 Act.
- There is, in my view, no sustainable argument that the questions posed by s 36A(2) of the 2003 Act raise any preliminary question. Rather, the first respondent in determining the appeal from the acting industrial magistrate was merely conducting a conventional review of the decision to determine whether the questions the acting industrial magistrate had decided had been decided correctly. This included the question of what was meant by the term "sustained."
- Senior Counsel for the applicant developed an argument that the first respondent had no jurisdiction to allow an appeal against findings of fact by the acting industrial magistrate. He referred to the first respondent’s own decision in Briffa v Q-Comp [2005] QIC 55 where the President said:
“The Appeal to this Court is by way of re-hearing on the record. ‘Re-hearing’ is here used in the sense elaborated upon in Warren v Coombes (1979) 142 CLR 531 and Fox v Percy (2003) 214 CLR 118. This Court if required to decide on the proper inference to be drawn from facts which were undisputed at first instance or which, having been disputed, are established by the findings of the Trial Judge. Whilst paying due deference to the very real advantage enjoyed by the tribunal of first instance in hearing and observing the witnesses, this Court is not to hide behind that advantage and is to consider whether incontrovertible facts or uncontested testimony demonstrate that findings which appear to be (or are even stated to be) based on credibility, are erroneous. All of that falls well short of a mandate to treat the Appeal as a re-trial on the record. The caveat is that appeals are about the correction of error and that this Court should not interfere with inferences which are easily open on the evidence at first instance on the ground (merely) that this Court would have preferred a different view.”
- There seems to be nothing controversial or novel in that passage from the first respondent’s decision which I have just quoted. Even were the first respondent to disregard his own caveat and to overturn findings of fact, provided the matter was one within jurisdiction, the first respondent’s decision would be final and this court would have jurisdiction to interfere.
- In any event, as is clear from the passage cited, the first respondent does have power to overturn findings of fact by an acting industrial magistrate where the first respondent is of the view that there has been a demonstrable error. The passage merely acknowledges that an appellate court, recognising the advantages enjoyed by the trial judge, exercises the power sparingly.
- I am satisfied that no jurisdictional error has been demonstrated on the part of the first respondent. The first respondent was properly seized of the appeal. It is not appropriate for me to express any view on the correctness or otherwise of the first respondent's disposition of that appeal.
- As between themselves, I was informed that the parties had agreed that I should make no order as to costs.