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Queensland Judgments

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Authorised Reports & Unreported Judgments
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Nutley v President of the Industrial Court of Queensland & Anor  
Unreported Citation: [2019] QSC 167
EDITOR'S NOTE

The applicant was denied compensation for an alleged workplace injury, and unsuccessfully appealed that decision to the Queensland Industrial Relations Commission. After a further appeal to the Industrial Court of Queensland was denied, the applicant sought judicial review of the Industrial Court’s decision. On review, the applicant contended that the Industrial Court had erred by interpreting an appeal by way of re-hearing under s 561 Workers’ Compensation and Rehabilitation Act 2003 as being limited to the grounds of appeal set out in s 557 Industrial Relations Act 2016. Bradley J dismissed the application for review on the basis that there was no inconsistency between the two Acts and that the applicant’s contention that an appeal by way of rehearing necessarily permits an unrestricted range of grounds of appeal was simply wrong.

Bradley J

17 June 2019

Background 

The applicant sought compensation for an adjustment disorder with anxiety and depression that he alleged he had suffered as a result of the conduct of his co-workers, but his claim was refused. [2]. He appealed that decision to the Queensland Industrial Relations Commission, but was again unsuccessful on the basis that his employment was not the major contributing factor to his conditions, and that his conditions were otherwise not a compensable “injury” by reason of s 32(5)(a) Workers’ Compensation and Rehabilitation Act 2003 (“WCR Act”). [3]. After a further appeal to the Industrial Court of Queensland also failed because no appellable error was demonstrated in the Commission’s decision, the applicant sought to judicially review the Industrial Court’s decision. [4]–[5], [8].

On review, the applicant contended that the Industrial Court had erred by unduly limiting the scope of the appeal or the matters which the applicant could advance as grounds of appeal before that Court. [15]. In particular he argued that an appeal to the Industrial Court under s 561 WCR Act was “by way of re-hearing” and that to the extent s 557 Industrial Relations Act 2016 (“IR Act”) sought to limit the grounds available for that appeal, the WCR Act and IR Act were inconsistent, and that the WCR Act should prevail to the extent of that inconsistency. [23], [35]. The application for review proceeded without challenge to the right of the applicant to seek review in the circumstances, and it was not otherwise argued that it would be inappropriate for the application to continue on the basis of any existing right of appeal to the Court of Appeal. [8]–[9].

An appeal “by way of re-hearing”

In delivering his reasons ex tempore, Bradley J highlighted that appeals are creatures of statute, and that as such, an exercise of appellate power is dependent upon the terms of the statute conferring the right of appeal which is being invoked. [18]. In both Coal and Allied Operations Pty Ltd Australian Industrial Relations Commission (2000) 203 CLR 194 (at 203) and Fox v Percy (2003) 214 CLR 118 (at [23]–[24]), the High Court had specifically noted that the exercise of appellate power in an appeal by way of re-hearing is to be undertaken for the purpose of correcting error. [24], [34].

In this case, s 561(2) WCR Act expressed that the IR Act applied to an appeal by way of re-hearing under that provision, and s 557 IR Act specified the grounds available for that appeal, being an error of law or want or excess of jurisdiction, or upon other grounds by leave of the Court. [26]. There was no inconsistency between the Acts because the WCR Act described the nature of the appeal in terms of the material that could be considered and the approach to be taken by the appeal court toward the decision below, and the IR Act prescribed the grounds upon which that appeal could be founded. [26]. Bradley J explained that to the extent that the applicant had proceeded on the assumption that an appeal by way of re-hearing permitted broad and un-restricted grounds of appeal, that assumption was “simply wrong”. [35].

Order

In the result, his Honour dismissed the application with costs. [39].

B McNamara