Lowis v Queensland Industrial Relations Commission

Case [2019] QSC 277

SUPREME COURT OF QUEENSLAND

CITATION:

Lowis v Queensland Industrial Relations Commission [2019] QSC 277

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) s 549, 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) s 32CA
Industrial Relations (Tribunals) Rules 2011 (Qld)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3
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. By application for review filed by Mr Lowis on 25 July 2017, Mr Lowis sought:

    “Application to review the decision…

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Details
AGLC
Lowis v Queensland Industrial Relations Commission [2019] QSC 277
Case
[2019] QSC 277
Decision Date

CaseChat Overview and Summary

Lowis v Queensland Industrial Relations Commission involved a dispute where the applicant sought judicial review of a decision by the Queensland Industrial Relations Commission (QIRC) to refuse his application to become a party to an appeal. The legal issues were whether QIRC's decision to refuse the applicant's application to join the appeal was a decision of an administrative character, and if the applicant was entitled to seek a review under the relevant law. The court considered whether the QIRC had the power to make such a decision and if the applicant's application fell within the scope of the Judicial Review Act.

The court found that QIRC's decision to refuse the applicant's application to become a party to the appeal did not constitute a decision of an administrative character as defined by the Act. The court reasoned that QIRC's role was not to determine the merits of the appeal but rather to manage the proceedings. The court also held that the decision to refuse the application did not settle any rights or obligations between defined persons or classes of persons, which is a characteristic of a judicial power. Therefore, the decision was not subject to judicial review under the Act.

Based on the findings, the court dismissed the applicant's application for judicial review. The court concluded that the QIRC did not make a reviewable decision when it refused the applicant's application to join the appeal. The court did not find that the applicant was aggrieved by a decision to which the Act applied, and thus, the application for review was dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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.”[56] The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374. 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 generally de 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).”[57] Hamblin v Duffy (1981) 34 ALR 333, 339. 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.”[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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 20(1) of the Act provides:20 Application for review of decision(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. Section 4(a) of the Act provides:4 Meaning of decision to which this Act appliesIn this Act—decision to which this Act applies means—(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); … Mr Lowis alleges the Decision was made pursuant to s 549(3)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA). Counsel for the Attorney-General submits that no such decision was made. The Attorney-General submits that Mr Lowis 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 s 20(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][2] Attorney-General’s Submissions filed 3 October 2019 paragraph 22.The First Issue In order to determine whether Mr Lowis is correct that a decision was made on 28 June 2017 to refuse his application to become a party to proceeding, it is necessary to have some reference to the history of the matter. Mr Lowis was in a domestic relationship with Ms Inez Danielle Nixon from in or about 2004 until August 2016. Mr Lowis and Ms Nixon have two children. Ms Nixon was employed as a permanent part-time cook in Mackay and, according to Mr Lowis, has never set foot in the North Queensland Bulk Ports Corporation Limited (NQBP) facility nor had anything to do with NQBP. Mr Lowis is a registered civil engineer with broad and impressive industry experience.[3][3] Bundle of documents filed 24 September 2019 (Bundle of Documents) – document 23. Mr Lowis 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 Ms Nixon. The only contract provided between NQBP and Hardcastle related to the period between 4 April 2014 and 9 October 2014. Mr Lowis alleges that the contract had been renewed on a number of occasions and that would appear to be correct. As is set out in Lowis v Workers’ Compensation Regulator[4], Mr Lowis’ troubles began early in the morning of 22 March 2015 when he received a sexually explicit text message from a female employee of NQBP. Ms Nixon read the message. Mr Lowis said of the message that it had “immediate negative consequences for … my marriage.”[5] Accordingly, Mr Lowis complained to NQBP management. [4] [2019] QSC 5 [6].[5] Lowis v Workers’ Compensation Regulator [2019] QSC 5 [6].

Ratio Decidendi

Legal Principle Established

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