SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO: SC No 9190 of 2007 DIVISION: PROCEEDING: ORIGINATING COURT: Parker v The President of the Industrial Court of Queensland & Q-Comp [2008] QSC 175 RACHEL NICOLE PARKER (applicant) v THE PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND (first respondent ) and Q-COMP (second respondent) Trial Division Application Supreme Court at Brisbane DELIVERED ON: 15 August 2008 DELIVERED AT: Brisbane HEARING DATE: 12 May 2008 JUDGE: ORDER: CATCHWORDS: Lyons J Application dismissed JUDICIAL REVIEW GENERALLY GROUNDS OF REVIEW JURISDICTIONAL MATTERS applicant made claim under Workers Compensation and Rehabilitation Act 2000 (Qld) WorkCover rejected the applicant s claim applicant s appeal to Q-Comp unsuccessful applicant s appeal to Industrial Magistrate dismissed applicant s appeal to the President of the Industrial Court of Queensland dismissed the President of the Industrial Court of Queensland interpreted s 32(1) and s 32(5) of the Workers Compensation and Rehabilitation Act 2000 (Qld) so that s 32(5) prevailed and rejected the interpretation of words in the section which would maximise the reach of s 32(1) whether the President of the Industrial Court of Queensland failed to exercise his jurisdiction when construing and applying s 32 of the Workers Compensation and Rehabilitation Act 2000 (Qld) JUDICIAL REVIEW GENERALLY GROUNDS OF REVIEW JURISDICTIONAL MATTERS the President

2 2 of the Industrial Court of Queensland interpreted in the course of reasonable management action in s 32(5)(a) as not being concerned with temporal relationships whether the President of the Industrial Court of Queensland failed to exercise his jurisdiction when construing and applying s 32 of the Workers Compensation and Rehabilitation Act 2000 (Qld) JUDICIAL REVIEW GENERALLY GROUNDS OF REVIEW JURISDICTIONAL MATTERS the President of the Industrial Court of Queensland did not distinguish between employment and management action in terms of bullying and harassment whether the President of the Industrial Court of Queensland failed to exercise his jurisdiction when construing and applying s 32 of the Workers Compensation and Rehabilitation Act 2000 (Qld) Industrial Relations Act 1999 (Qld), s 349 Judicial Review Act 1991 (Qld), s 41, s 43 Workers Compensation and Rehabilitation Act 2000 (Qld), s 32, s 561 COUNSEL: SOLICITORS: AMACSU v Ergon Energy Corporation Ltd & Ors (2005) 149 IR 35; [2005] QCA 351, cited Carey v President of the Industrial Court of Queensland [2004] 2 Qd R 359; [2004] QCA 62, cited Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, cited Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, cited Parker v Q-Comp [2007] QIC 25, cited Prizeman v Q-Comp 180 QGIG; [2005] QIC 53, cited R v War Pensions Entitlement Appeal Tribunal and Anor; Ex Parte Bott (1933) 50 CLR 228; [1933] HCA 30, cited Rockdale Beef Pty Ltd v The Industrial Relations Commission New South Wales & Anor (2007) 165 IR 7; [2007] NSWCA 128, cited Q-Comp v Education Queensland [2005] QIC 46, cited Squires v President of the Industrial Court of Queensland & Ors [2002] QSC 272, cited S J Keim SC, with N Kidson for the applicant G P Long SC, with S A McLeod for the second respondent Peter Agerholm Solicitors for the applicant Workers Compensation Regulatory Authority for the second respondent

3 3 LYONS J: The facts [1] The applicant commenced employment as a spray-painter at Metro Ford at the end of May Six weeks later she witnessed her foreman, Burgess, being verbally abusive to her co-worker Smith, and she reported the abuse to her manager King. King then conducted an investigation into Burgess s behaviour. That investigation revealed that the foreman had been abusive and intimidating towards all staff in the workshop. King issued Burgess with a formal warning, which resulted in him retaliating against the applicant by verbally abusing her and sabotaging her work. The applicant became very stressed by Burgess s harassment and eventually left work. She was subsequently diagnosed as suffering from schizophrenia. [2] The applicant made a claim for workers compensation pursuant to the Workers Compensation and Rehabilitation Act 2000 (Qld) ( WCR Act ) to WorkCover Queensland on 1 October 2003 for an injury arising out of or during the course of her employment. 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. (3) Injury includes the following (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. (5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances (a) reasonable management action taken in a reasonable way by the employer in connection with the worker s employment; (b) the worker s expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker s application for compensation.

4 4 Examples of actions that may be reasonable management actions taken in a reasonable way - action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker - a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker s employment. [3] On 15 December 2003 WorkCover advised the applicant that her application for compensation had been rejected. She appealed this decision to Q-Comp, the second respondent, and on 5 May 2004 the second respondent rejected the appeal on the basis that it was not satisfied that the medical condition, namely schizophrenia, arose out of or in the course of her employment. Furthermore, the second respondent was not satisfied that the applicant s employment had been a significant contributing factor to the development of this medical condition. [4] The applicant then filed an appeal to the Industrial Magistrate. In that appeal against the Q-Comp Review Decision the onus of proof was on the applicant on the balance of probabilities to bring herself within s 32(1) of the WCR Act. [5] At the conclusion of the trial on 27 September 2006 the Industrial Magistrate made the following findings: (a) Whilst the applicant was employed at Metro Ford she was subjected to acts of bullying by Burgess, which began after she had stuck up for Smith; (b) The acts of bullying included verbal abuse (she was called a dog ), being laughed at, having her work sabotaged (oven temperatures for drying paint were altered, a car panel was deliberately dented, and paint panels were deliberately exposed to dust); (c) The applicant now suffers from a schizophrenia type illness; and (d) The applicant had shown signs of developing a schizophrenia type illness prior to commencing at Metro Ford but the bullying at Metro Ford was a significant contributing factor to aggravating the developing schizophrenia type illness. [6] The Industrial Magistrate ultimately concluded that s 32(1) of the WCR Act had been satisfied as the applicant had demonstrated an aggravation of a pre-existing illness and that her employment at Metro Ford was a significant contributing factor to that aggravation. [7] At the end of the hearing, counsel for the second respondent raised the issue of the operation of the reasonable management exclusion contained in s 32(5)(a) of the WCR Act, whereby the applicant would have the onus of proof in establishing that the reasonable management exclusion in that section did not apply or that her condition arose from unreasonable management action. Accordingly, further written submissions were sought in that regard. [8] After considering those submissions, the Industrial Magistrate delivered judgment on 27 October 2006 and I adopt the applicant s summary of this decision as follows: (a) The term arising out of in s 32(5) connoted some causal or consequential relationship between the management action and the

5 5 (b) (c) (d) (e) (f) (g) psychological disorder. However, in the course of had no such causal connection and indicated a more temporal relationship although a mere temporal relationship alone would be insufficient; The management action commenced with the applicant s complaint to King about Burgess abusing Smith and the management action continued until she left her employment with Metro Ford. The management action therefore encompassed the investigation into and disciplinary action against Burgess, as well as the applicant bringing Burgess s retaliatory actions to the attention of King; Management s investigation into Burgess was taken as a result of the applicant s complaint and the applicant was a significant figure in that investigation. Therefore, the management action in investigating was closely connected to the applicant s employment and the aggravation of the disorder was incidental to the management action. On the basis of those findings, the Industrial Magistrate was satisfied that the aggravation of the applicant s psychological disorder was in the course of management action ; Whether management action was reasonable is an objective test; The investigation into Burgess was conducted appropriately by King and the reprimand was reasonable; King did not take any action in response to several of the applicant s other reports of abuse or harassment against her by Burgess, however, the Industrial Magistrate found that King s lack of response was reasonable given the applicant had requested that no action be taken; and The Industrial Magistrate was not satisfied that the management action was unreasonable and, therefore, the aggravation of the applicant s psychological disorder was exempted from the definition of injury in s 32 of the WCR Act. [9] The Industrial Magistrate concluded: Looking at the action in a global way, as I am bound to by the decision of President Hall in Delaney, I am not satisfied on the balance of probabilities that the management action was unreasonable, which appellant has the onus of proving. The management action was not perfect, but it was within reason. It perhaps could have been better with hindsight, but at the time it was taken it was in all the circumstances reasonable. [10] The action was accordingly dismissed with no order as to costs. The appeal to the Industrial Court of Queensland [11] The decision was then appealed to the President of the Industrial Court of Queensland, (the first respondent) and I again adopt the applicant s summary of that decision as follows: (a) The first respondent held that the Magistrate was correct to take the view there was one continuum of management action which commenced on 9 July 2003 with the complaints by the applicant to King and it included all subsequent transactions between King and the applicant until 26 August 2003, when she left the employment.

6 6 (b) (c) The first respondent accepted that neither the making of the complaints, nor the investigation by King caused anxiety or stress to the applicant but considered that those events were inextricably linked with all which subsequently happened. The first respondent held that there is nothing in the language of s 32(5)(a) of the WCR Act to suggest that it is confined to management action taken in a reasonable way solely in connection with the claimant worker s employment because management action often involves mediating between workers or otherwise adjusting their relationships; The Industrial Magistrate did not err in finding that King s actions were reasonable management action taken in a reasonable way, particularly in light of some of the applicant s behaviour of hearing voices in the painting booth and that a prudent management would have exercised caution in taking serious action against Burgess; In relation to whether the injury occurred in the course of reasonable management action, the first respondent held that it was neither necessary nor desirable to enter upon an exhaustive analysis of the connection with reasonable management action reasonably taken that in the course of requires. Rather, it was sufficient to acknowledge that a psychiatric or psychological disorder which is causally traceable to the reasonable management action reasonably taken is excluded by s 32(5). In arriving at this finding, the first respondent reasoned that: (i) The line of authority in relation to entitlement to benefits where an injury arises in the course of employment was so different in purpose to the WCR Act as to be unhelpful and distracting. To the extent that the Act provides benefits to workers who suffer work-related injuries, the statutory scheme is still properly to be characterised as beneficial. However, by virtue of s 5(4), the scheme is also to maintain a balance between providing fair and appropriate benefits for injured workers and ensuring reasonable premium levels for employers and it is not legitimate to distort the balancing of competing community interest by limiting the scope of the expression in the course of or, for that matter, the expression arising out of in order to maximise the reach of s 32(1); and (ii) The line of authority embraced the notion that, for an injury to occur in the course of employment, there must be a temporal connection between the employment and the injury although a temporal connection is insufficient. The first respondent reasoned that to impose upon the expression in the course of reasonable management action an unexpressed requirement of temporal connection is to ignore the subject matter of sub-section 32(5), which is psychiatric and psychological disorders. Because of the nature of those disorders, it is highly unlikely that de-compensation or aggravation will occur within working hours;

7 7 (d) (e) The chain of causation between management action and the aggravation of the applicant s psychological condition was not broken by the independent action of Burgess. The first respondent found that it is impossible to accept a view of s 32 which would permit the applicant to rely upon the bullying and harassment by Burgess to connect the psychiatric condition with her employment for the purposes of s 32(1) and (2), whilst concluding that, for the purposes of s 32(5), the same behaviour ruptured the chain of causation between the reasonable management action reasonably taken and the psychiatric condition. In the first respondent s view, therefore, the submission that there is a distinction between using the bullying and the harassment to link the psychiatric condition with the employment and using the bullying and harassment to link the management action to the psychiatric condition, can be correct only if the submission be accepted that the complaint, investigation and warning did not form part of the management action and this submission had been previously rejected. This application [12] In this application the applicant seeks prerogative orders in the nature of certiorari and mandamus against the first respondent pursuant to s 43(1) of the Judicial Review Act 1991 (Qld) ( JR Act ) in respect of the decision made on 17 July 2007 to dismiss the appeal by the applicant against the decision of the Industrial Magistrate made on 27 October [13] Pursuant to s 41(2) of the JR Act, the Supreme Court continues to have jurisdiction to grant relief by way of mandamus or certiorari. As McPherson JA stated in Carey v President of the Industrial Court of Queensland: 1 The change effected by the Act is in name only and the form of the relief or remedy by writ and not in the substantive jurisdiction or the power to grant it, In the case of certiorari and mandamus in particular, the courts always exercised a wide discretion in granting or withholding relief by prerogative writ, and, like the jurisdiction itself, the discretion has survived the alteration in form and nomenclature introduced in Queensland by the Act of The jurisdiction of the Supreme Court [14] Is this an appropriate case for judicial review pursuant to the provisions of the JR Act such that the prerogative orders should issue? It is clear that s 561(4) of the WCR Act and s 349 of the Industrial Relations Act 1999 (Qld) ( IR Act ) limit the occasions for an appeal to the Supreme Court. Section 561(4) provides that the decision of the Industrial Court is final. Section 349 then provides: 349 Finality of decisions (1) This section applies to the following decisions (a) a decision of the Court of Appeal under section 340; (b) a decision of the court under section 341; (c) a decision of the full bench under section 342; 1 [2004] 2 Qd R 359 at [23].

8 8 (d) a decision of the commission under section 343 or 344; (e) another decision of the court, the full bench, the commission, an Industrial Magistrates Court or the registrar. (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. (4) This section does not apply to a decision mentioned in subsection (1) to the extent that this Act or another Act provides for a right of appeal from the decision. (5) In this section industrial tribunal includes an Industrial Magistrates Court and the registrar. [15] Notwithstanding those provisions, it is accepted that if a decision is affected by jurisdictional error the Supreme Court retains the power to correct the error by way of judicial review. Accordingly, a decision of the Industrial Court which it had no jurisdiction to make can be subject to judicial review and may be set aside or quashed. This approach was confirmed in the 2005 decision of AMACSU v Ergon Energy Corporation Ltd & Ors 2 where it was held that the protection afforded by s 349 does not extend to decisions infected by jurisdictional error. The Supreme Court, therefore, retains jurisdiction to review decisions of the Industrial Court if jurisdictional error can be shown to infect its proceedings. This is because as Keane JA explained in that case, a decision infected by jurisdictional error is regarded in law as no decision at all and the protection afforded by s 349(2) only applies to decisions. [16] It is crucial therefore to understand what is meant by the term jurisdictional error, on which the leading authority is Craig v South Australia. 3 Jurisdictional error [17] The Industrial Court is a court of record in Queensland and the decision in Craig v South Australia 4 discussed jurisdictional error by an inferior court (as opposed to an administrative tribunal) in these terms: 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 (2005) 149 IR 35. (1995) 184 CLR 163. (1995) 184 CLR 163,

9 9 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. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern (61). the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. [18] This analysis shows that it is therefore important to distinguish between jurisdictional errors and demonstrable errors of law which are committed within jurisdiction. The difference between the two errors was discussed in the recent New South Wales Court of Appeal decision of Rockdale Beef Pty Ltd v The Industrial Relations Commission New South Wales & Anor 5 where Basten JA stated: Each of the errors identified by the claimant is identified as an error of law. However, it is clear that that is not, of itself, sufficient. The error must amount to a decision beyond jurisdiction or, perhaps, a 5 [2007] NSWCA 128 at [85]. See full discussion of the nature of jurisdictional error at [80]-[86].

10 10 constructive failure to exercise the jurisdiction conferred on the Industrial Court. The flavour of the distinction can be understood by reference to the explanation given by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420: I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction.. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply a wrong and inadmissible test : or to misconceive its duty, or not to apply itself to the question which the law prescribes : The King v War Pensions Entitlement Appeal Tribunal [Ex parte Bott] (1933) 50 CLR 228 at 242-3]; or to misunderstand the nature of the opinion which it is to form : The King v Connell [(1944) 69 CLR 407 at 432], in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law. Grounds for application [19] The essence of the applicant s argument in this case is that in construing and applying s 32(5)(a) of the WCR Act the first respondent committed errors that were so fundamental to the proper construction of that section that the first respondent failed, constructively, to conduct the appeal he was authorised by statute to undertake. In other words, there has been a constructive failure of the first respondent to exercise his jurisdiction. The applicant submits that the errors in this case are jurisdictional errors and they therefore form the basis for the relief sought. Has there been jurisdictional error? [20] The essential question to be determined therefore is whether the errors, as identified by the applicant, are in fact true jurisdictional errors given the importance of the distinction between jurisdictional error and error within jurisdiction. [21] One of the central issues for determination in the appeal before the first respondent was the interpretation of s 32(5)(a) of the WCR Act which related to the issue of whether the relevant injury was a psychiatric or psychological disorder which had arisen out of or in the course of reasonable management action taken in a reasonable way. [22] Essentially, the decision of the Industrial Magistrate was that, whilst he was satisfied that the applicant had sustained an injury, it was however an excluded injury under s 32(5) of the WCR Act and was not therefore a personal injury within

11 11 the meaning of the WCR Act. This was consistent with the interpretation of the section on a number of occasions by the first respondent. 6 [23] The appeal to the Industrial Court was governed by s 561 of the WCR Act which provides that the appeal is by way of rehearing on the evidence and proceedings before the Industrial Magistrate unless the Court orders additional evidence be heard. It is clear that the appeal to the Industrial Court is for the purpose of the correction of error and that conclusions upon factual matters reasonably open to the Industrial Magistrate are not to be interfered with. 7 [24] The issue in the appeal before the first respondent was whether s 32(5)(a) had application to the circumstances of the case. The President concluded that, whilst neither the making of the complaints to King nor King s investigation caused any stress to the applicant, those events were, he considered, inextricably linked to what subsequently happened because it was those events which caused Burgess to retaliate upon the applicant in the way that he did. The President then concluded that the view of the Industrial Magistrate was correct; that there was: 8 one continuum of management action over the period 9 July 2003 to 26 August It is plain that the management action was not taken against the Appellant, but equally plain from the contrast in language between s. 32(5)(a) and s.32(5)(b) that s.32(5)(a) is not about reasonable management action taken in a reasonable way against a worker. [T]here is nothing in the language of s.32(5)(a) to suggest that it is confined to management action taken in a reasonable way solely in connection with the claimant worker s employment. Management action often involves mediating between workers or otherwise adjusting their relationships. [25] Turning then to the particulars of the jurisdictional error that the applicant has identified. Ground (a) [26] The first ground is that the first respondent restricted himself by an artificial and unnecessary concern not to upset the balance arrived at by s 32(5), rather than seeking to ascertain what that balance, in fact, was and in so doing the first respondent restricted his consideration to exclude matters that the section intended be made and that this represented a constructive failure of the first respondent to exercise the jurisdiction granted to him under the Act. [27] The applicant contends that the way in which the first respondent determined the issue indicated that he was maximising the reach of the exemption. It is clear that in his decision the first respondent held that where s 32(1) ropes in psychiatric or psychological conditions s 32(5) excludes the same conditions and that the inconsistency is resolved by allowing s 32(5) to prevail. He also held that it was not legitimate to distort the balancing of community interests by limiting the scope of the expression in the course of or arising out of in order to maximise the reach of s 32(1) See Q-Comp v Education Queensland [2005] QIC 46. Prizeman v Q-Comp [2005] QIC 53; 180 QGIG, 48. Parker v Q-COMP [2007] QIC 25.

12 12 [28] The applicant contends that what the first respondent should have done was to interpret the exemption in a way which identified the kinds of claims that Parliament intended to exclude and interpret the section in a manner which limited the exclusion to these sorts of claims. The Explanatory Notes indicate that the exemption was inserted into the existing legislation to exclude psychiatric or psychological injuries which resulted from reasonable management action to improve a worker s poor performance. The applicant contends that the on the construction upheld by the President, any employee who complains to management about another employee, and who is then victimised will be excluded from the statutory scheme if the complainant suffers a psychological injury. In essence the applicant submits that the exemption was not intended to exclude innocent victims of workplace bullying. [29] The applicant contends that the first respondent s construction of s 32(5)(a), which extends the reach of the exclusion to an employee disgruntled by management action, who then takes action which causes another employee psychological harm, is not supportable. The applicant submits that such a construction offends the purpose of the legislation, which was to exempt injuries resulting from proper and reasonable management action. The applicant also contends that this construction extends the umbrella of protection to actions which would not otherwise be protected and that since bullying can never amount to reasonable management action which attracts the protection of s 32(5)(a), it would be perverse to allow such behaviour to gain protection. [30] The applicant also submits that such a construction is against public policy as it would be a disincentive for employees to report inappropriate behaviour and it also offends the principles of remoteness of damage as the actions of the disgruntled employee should be construed as separate acts. [31] The applicant contends that a correct approach to construction would have had an impact on all of the findings of the first respondent, particularly the finding that management action formed one continuum and the finding that the retaliatory actions of Burgess was not a novus actus which broke the causal link. [32] Consequently, the applicant submits that the error of construction was of such fundamental importance to the construction of the provision that it misdirected the first respondent s consideration of all other matters. [33] Some of the arguments raised on behalf of the applicant have considerable force. However, it is clear that this application is not an appeal from the decision of the first respondent. A consideration of this application does not involve a merits review of the first respondent s decision. This application involves a determination as to whether the decision of the first respondent is infected with jurisdictional error. Without embarking on an examination of the question as to whether the first respondent was actually in error in any respect, it is clear that an error of law by the first respondent is not sufficient to found jurisdictional error. As Jordan CJ indicated in Ex parte Hebburn Ltd; Re Kearsley Shire Council, 9 there are mistakes and mistakes. [34] In order to be successful in the current application, the applicant needs to establish that the first respondent must have misunderstood the nature of his jurisdiction, applied a wrong or inadequate test, misconceived his duty, not applied himself to the question which the law prescribes, or misunderstood the nature of the opinion 9 (1947) 47 SR (NSW) 416, 420.

13 13 which he was to form. It is clearly established that in examining that question it is not appropriate to embark upon an examination of the correctness of the decision because the question of the correctness or incorrectness of the decision is not the question which needs to be determined. 10 It is not a question as to whether this Court would come to a different view as to the interpretation of s 32. As Basten JA in Rockdale Beef stated: 11 However, the central purpose of the supervisory jurisdiction of a superior court is to police the boundaries of powers of inferior courts, tribunals and other bodies. Similar imprecise concepts limit judicial review of administrative action, requiring the court to eschew review of a decision on its merits and limit its role to ensuring that the law prescribing the limits and governing the exercise of power have not been exceeded: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37 (Brennan J); see also Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [13] [35] Basten JA went on to further examine the concept of jurisdictional error and referred to the decision in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs and said: 12 The statement that a particular error is a jurisdictional error is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void: Plaintiff S157[/2002 v The Commonwealth (2003) 211 CLR 476] at [79] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker s lawful authority or it is not. If it falls within the decision maker s lawful authority then the error is made within jurisdiction. If it does not fall within the decision maker s lawful authority then the error is a jurisdictional error and as such it cannot be a valid action or decision. [36] Because of that fundamental threshold issue I agree with the submissions of counsel for the second respondent, that the first respondent s approach to the construction of s 32 as outlined above was not such as to amount to jurisdictional error. I consider that the first respondent embarked upon an analysis of the meaning of the section in an entirely orthodox manner by looking at the clear language of the statute. In particular, the first respondent indicated that the scope of the section was to be determined by reference to the language used in the section and by the ordinary meaning of the phrase arising out of or in the course of in relation to the concept of reasonable management action taken in a reasonable way. I do not consider that he restricted himself in the manner submitted by the applicant. I do not consider that the approach that he took was such as to found jurisdictional error. I consider that the applicant s submissions in this regard are, in essence, submissions about the Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; R v War Pensions Entitlement Appeal Tribunal and Anor; Ex Parte Bott (1933) 50 CLR 228. Rockdale Beef Pty Ltd v The Industrial Relations Commission New South Wales & Anor [2007] NSWCA 128, [80]. (2003) 199 ALR 43, [27].

14 14 correctness of the decision, rather than the existence of the jurisdiction of the first respondent. Whilst I may have come to a different decision, I am not satisfied that the approach the first respondent took is sufficient to establish a constructive failure of jurisdiction as submitted by the applicant. [37] This first ground must therefore fail. Ground (b) [38] The second ground is that the applicant submits that the first respondent restricted the exercise of his function by assuming that the expression in the course of reasonable management action in s 32(5)(a) did not signify a temporal connection between management action and the relevant psychiatric or psychological disorder, when that phrase was necessarily concerned with temporal relationships. [39] The first respondent s role was to review the finding of the Industrial Magistrate that the applicant had not satisfied the onus of proof in establishing that the reasonable management exclusion in that section did not apply, or that the applicant s condition arose from unreasonable management action. [40] In embarking on this role, the first respondent was essentially undertaking a review of the factual findings of the Industrial Magistrate. One of the factual findings of the Magistrate was that, whilst he did not consider that the making of the complaints by the applicant, nor the investigation by King about those complaints caused the applicant any anxiety or stress, he considered that those events are inextricably linked with all that subsequently happened. In particular, the Industrial Magistrate found that it was the investigation and the formal warning to Burgess by Smith that caused Burgess to retaliate to the applicant. In reviewing those and other factual findings, including the short period of time over which the incidents occurred, the first respondent concurred that there was one continuum of management action between 9 July and 26 August A further relevant fact was that the applicant asked King not to take any further action steps although he did continue to check how she was going. It is clear that the management action had not been taken against the applicant directly. [41] In undertaking this exercise of reviewing the Industrial Magistrate s decision, the first respondent was determining whether the Industrial Magistrate had correctly applied the appropriate test and had viewed the facts correctly. In particular, in reviewing the words in the course of management action, the first respondent recognised that applying those words to a concept of management action may require a different conceptual approach than applying it to in the course of employment, as was contended by the applicant. The first respondent concluded that he did not need to undertake an exhaustive analysis or decide the issue because, from a factual point of view, what had occurred in this case was that the Industrial Magistrate had found that the injury was causally traceable to the reasonable management action reasonably taken, whether it could be described as arising out of or in the course of. [42] The way in which the first respondent conducted the appeal before him was to review the facts and apply the law as he found it and as he had previously applied the law within that jurisdiction. Such an approach does not amount to jurisdictional error.

15 15 Ground (c) [43] The third ground is that the first respondent restricted the exercise of his function by conflating management action and employment, and thereby failed to realise that actions of a co-employee comprising harassment and bullying could constitute part of the employment matrix for the purposes of s 32(1) of the WCR Act, but perform a different role in respect of management action, namely, by breaking the causal relationship between certain management action and certain subsequent injury to a worker. [44] I agree with the submissions of counsel for the second respondent, that the first respondent s reasons about which the complaint is made are a response to arguments put to him by the applicant and as they were incidental to his conclusion they are in fact obiter dicta and do not, therefore, amount to jurisdictional error. Conclusion [45] The provisions of the WCR Act and the IR Act make it clear that the decision of the Industrial Court is final and there is no further right of appeal unless it can be established that the decision is affected by jurisdictional error. If such error is established, the Supreme Court retains the power to correct the error by way of judicial review. However, for the reasons set out above I am not satisfied that there has been jurisdictional error on the part of the first respondent in the making of the decision on the appeal from the Industrial Magistrate. The first respondent heard the appeal he was asked to hear and he applied the law as he had previously applied it within that jurisdiction to the facts as he found them. The error which has been asserted by the applicant goes to the substance of the decision rather than jurisdictional error. In the present circumstances, therefore, the relief sought by the applicant by way of prerogative writs is not available. As Mullins J stated in Squires v President of the Industrial Court of Queensland & Ors 13 The express provisions of ss 349(2) and (3) of the IRA therefore have the effect of excluding this Court s jurisdiction in granting prerogative relief in respect of the decision of the first respondent, if it was made within jurisdiction. Orders [46] I therefore order that the application filed on 15 October 2007 be dismissed. [47] The second respondent seeks an order that the applicant pay its costs, which is the usual order following the dismissal of the application, however, I will hear the parties as to whether such an order is appropriate in the particular circumstances of this case. 13 [2002] QSC 272, [32].