State Reporting Bureau

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1 ^2.004) State Reporting Bureau Queensland Government Department of justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. REVISED COPIES ISSUED State Reporting Bureau SUPREME COURT OF QUEENSLAND Date 8 June, 04 CIVIL JURISDICTION DOUGLAS J No BS8798 of 03 JOHN LABAJ Applicant and WORKCOVER QUEENSLAND First Respondent And THE PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND Second Respondent BRISBANE..DATE 2/05/04 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal >ffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for heir protection under the Child Protection Act 999, and complainants in criminal sexual offences, but is not limited to those :ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. th Floor, The Law Courts, George Street, Brisbane, Q. 00 Telephone: (07) Fax: (07)

2 4 T6/TGC (Douglas J) HIS HONOUR: This is an application to review a decision of the Industrial Court. That Court had heard an appeal from an Industrial Magistrate rejecting the applicant Mr Labaj's claim for benefits under the WorkCover Queensland Act 996. The issues dealt with by the President included whether the 0 evidence before the Industrial Magistrate justified the factual finding made by him that he was not satisfied that there was any medical evidence supporting the proposition that the applicant's employment significantly contributed to his injury. The President concluded that while other persons may have taken a different view of the medical evidence, the view adopted by the Industrial Magistrate was plainly open to him. From what I have seen of that evidence, that conclusion by the 38 President seems to me to be correct. Another issue dealt with by the President was whether Mr Labaj suffered a lack of procedural fairness in being required by the Industrial Magistrate to call evidence from a Dr Dignam rather than admitting that evidence without her being called. The President dealt with this issue by pointing out that the appeal to the Industrial Magistrate was an appeal de novo, enabling the applicant to call evidence, requiring him to expose witnesses to cross-examination and where the burden of proof on the balance of probabilities lay with the applicant. 2 JUDGMENT 80

3 4 T6/TGC (Douglas J) When one examines the Act the conclusion that the appeal was an appeal de novo does seem to follow from the construction of the relevant provisions - see in particular sections, A, 2, 4, 5 and 6 which proceed on the basis, for example, that evidence will be called under the rules of evidence for the hearing and show that the powers of the Industrial Magistrate in section 6 are more extensive than one might expect simply from an appeal on the record from a decision by WorkCover or a review unit. The President also dealt with a number of complaints about the conduct of the matter procedurally before the Industrial Magistrate. They are detailed from paragraphs 5 to 9 of his decision and cover a number of Mr Labaj's concerns, including the admission of a decision of the Queensland Industrial Relations Commission dealing with an application by him for reinstatement where his complaint was that the procedural provisions of section 2 of the Industrial Relations Act were not complied with. The President convincingly dealt with the issues raised in the paragraphs to which I have referred. None of the matters to which I have referred allows me to conclude that this decision comes within the category of cases capable of review by this Court under section 349 of the Industrial Relations Act 999. That section applies to decisions of the Industrial Relations Court and prevents them from being reviewed in this Court so long as those decisions are made within the jurisdiction of the Industrial Court (see 3 JUDGMENT

4 4 T6/TGC (Douglas J) section 349 (3)). The Court of Appeal has recently considered that provision in Carey v. President of the Industrial Court Queensland [04] QCA 62 where McPherson JA, giving the principal judgment, said that the jurisdiction of the Supreme Court to entertain an 0 application for relief under the Judicial Review Act or otherwise was severely curtailed if not excluded by the provisions of the Industrial Relations Act section 349 (2)- and section 349(3). His Honour went on to say: "What is more, the operation of those provisions of the Act is expressly preserved from judicial review by s 8 (2) of the Judicial Review Act and Part of Schedule to that Act which identifies s 349 of the Industrial Relations Act as one of the enactments to which the review process does not apply... It is, despite these legislative exemptions or privative clauses, still possible for this Court to exercise jurisdiction in such a matter if there has been jurisdictional error on the part of the Industrial Court in determining the appeal to it from the Commission. The restriction imposed in s 349(3) is confined to proceedings in the Industrial Court 'within its jurisdiction'." 30 The Industrial Court itself is a superior Court of record (see section 242 of the Industrial Relations Act 999). 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 (995) 84 CLR 63 at 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 4 JUDGMENT 80

5 4 T6/TGC (Douglas J) subject of an application for review. On either test, whether it were appropriate for an administrative tribunal or for an inferior Court, the arguments by Mr Labaj have not persuaded me that the Court has acted outside its jurisdiction. In fact, it was quite within 0 its jurisdiction to examine the decision of the Industrial Magistrate and whether the evidence before him entitled him to reach the factual conclusion that he did about the effect of the evidence on establishing whether or not Mr Labaj's employment had significantly contributed to his injury. Similarly it was a matter within jurisdiction for the President to make the findings that he did in respect of the nature of the conduct of the proceedings before the Industrial Magistrate and it seems to me that he was correct, too, in the view that he adopted that the proceedings before the 30 Industrial Magistrate were an appeal de novo which required the calling of evidence of witnesses for cross-examination if required by the opposing party. For those reasons, I dismiss the application. MR HORNEMAN-WREN: I ask for costs, your Honour. HIS HONOUR: Anything to say about costs, Mr Labaj? Mr Horneman-Wren is asking for costs of his client. Do you have anything to say about that? APPLICANT: No, I don't want to say. 5 JUDGMENT 60

6 4 T6/TGC (Douglas J) HIS HONOUR: The application is dismissed with costs. MR HORNEMAN-WREN: Thank you JUDGMENT 60