M v P - [2011] QSC 350

SUPREME COURT OF QUEENSLAND

CITATION:

M v P [2011] QSC 350

PARTIES:

M

(Applicant)

V

P

(Respondent)

FILE NO/S:

S166/2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

28 November 2011

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

11 November 2011

JUDGE:

McMeekin J

ORDER:

Application is dismissed with costs.

CATCHWORDS:

STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION – PARTICULAR WORDS – where section 46 of Coal Mining Safety and Health Regulation 2001 (Qld) provides for a procedure for health assessments - where section 48(1) of the Coal Mining Safety and Health Regulation 2001 (Qld) applies to a health assessment report about a coal mine worker showing the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk – where worker is considered morbidly obese according to Body Mass Index calculation – whether respondents decision to declare worker unfit for duties followed requirements of regulations

Acts Interpretation Act 1954 (Qld)

Coal Mining Safety and Health Act 1999 (Qld)

Coal Mining Safety and Health Regulations 2001 (Qld)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353

Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors [2009] QSC 409

Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242

Johnson v Anglo Coal (Callide Management) Pty Ltd [2005] QSC 255

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222

Waterford v The Commonwealth (1987) 163 CLR 54

Re Minister for Immigration and Multicultural Affairs ex parte Applicant (2003) 198 ALR 59

Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343

COUNSEL:

C. Hartigan for the Applicant

D. O’Gorman SC for the Respondent

SOLICITORS:

Maurice Blackburn for the Applicant

Avant Law for the Respondent

McMeekin J: This is an application for a statutory order of review and for review of a decision of the respondent, Dr P, in the completion, and provision to the applicant’s employer, of a “Health Assessment Report” dated 16 March 2011 pursuant to the provisions of the Coal Mining Safety and Health Regulations 2001 (“the Regulations”) made under the Coal Mining Safety and Health Act 1999 (“the Act”).

Whilst I need to explain the facts and arguments in more detail, in short, the applicant complains that he has potentially been deprived of his occupation, one that he has followed for 30 years, because of his bodily habitus, and without proof or evidence that he has any present condition that makes him unfit to perform his duties safely.

The Background Facts

The applicant is employed as a heavy machinery operator at a coal mine. It is not a “low risk task” as defined in Schedule 9 of the Regulations. He is a “coal mine worker” as defined in the Regulations. Because of those two matters the applicant’s employer is entitled have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading M v P

Details

AGLC: M v P [2011] QSC 350
Case: [2011] QSC 350
Decision Date: 28 November 2011

CaseChat Overview and Summary

In the case of M v P, the applicant, M, sought a review of the respondent's decision to declare them unfit for duties at a coal mine under section 48(1) of the Coal Mining Safety and Health Regulation 2001 (Qld). The Queensland Court of Appeal was tasked with determining whether the respondent's decision complied with the relevant regulatory framework, specifically focusing on the interpretation and application of section 46 and section 48(1) of the regulations.

The central legal issue revolved around the interpretation of the statutory provisions concerning health assessments for coal mine workers. The court needed to ascertain whether the respondent's decision to deem the applicant unfit for duties was in accordance with the procedural requirements set out in section 46 and the substantive criteria in section 48(1) of the regulations. This included whether the classification of the applicant as morbidly obese based on the Body Mass Index calculation was a valid and reasonable ground for the unfitness determination.

The court determined that the respondent's decision was in compliance with the statutory requirements. The applicant's Body Mass Index was found to be a relevant and acceptable measure under the regulations to assess the risk posed by the applicant's fitness level. The court held that the respondent's decision to declare the applicant unfit for duties was a reasonable application of the regulatory provisions. Consequently, the court dismissed the application with costs.

The court's final order was to dismiss the application with costs, affirming the respondent's decision to declare the applicant unfit for duties at the coal mine.

Orders

Orders of the court

Application is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	M v P [2011] QSC 350
PARTIES:	M (Applicant) V P (Respondent)
FILE NO/S:	S166/2011
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Rockhampton
DELIVERED ON:	28 November 2011
DELIVERED AT:	Supreme Court Rockhampton
HEARING DATE:	11 November 2011
JUDGE:	McMeekin J
ORDER:	Application is dismissed with costs.
CATCHWORDS:	STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION – PARTICULAR WORDS – where section 46 of Coal Mining Safety and Health Regulation 2001 (Qld) provides for a procedure for health assessments - where section 48(1) of the Coal Mining Safety and Health Regulation 2001 (Qld) applies to a health assessment report about a coal mine worker showing the worker is unable to carry out the worker’s tasks at the mine without creating an unacceptable level of risk – where worker is considered morbidly obese according to Body Mass Index calculation – whether respondents decision to declare worker unfit for duties followed requirements of regulations Acts Interpretation Act 1954 (Qld) Coal Mining Safety and Health Act 1999 (Qld) Coal Mining Safety and Health Regulations 2001 (Qld) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353 Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors [2009] QSC 409 Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 Johnson v Anglo Coal (Callide Management) Pty Ltd [2005] QSC 255 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 Waterford v The Commonwealth (1987) 163 CLR 54 Re Minister for Immigration and Multicultural Affairs ex parte Applicant (2003) 198 ALR 59 Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343
COUNSEL:	C. Hartigan for the Applicant D. O’Gorman SC for the Respondent
SOLICITORS:	Maurice Blackburn for the Applicant Avant Law for the Respondent