MacDonald v. Q-Comp

[2008] QCA 319

SUPREME COURT OF QUEENSLAND

CITATION:

MacDonald v Q-Comp [2008] QCA 319

PARTIES:

STEPHEN HORACE MacDONALD
(appellant/applicant)
v
Q-COMP
(respondent)

FILE NO/S:

Appeal No 6627 of 2008
IC No 50 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

ORIGINATING COURT:

Industrial Court at Brisbane

DELIVERED ON:

10 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2008

JUDGES:

Keane and Fraser JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application struck out

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where the applicant was unsuccessful in his appeal to the Industrial Court from the refusal by an Industrial Magistrate of his claim for workers' compensation in respect of an injury said to have been suffered in the course of his employment – where the applicant applies to this Court for leave to appeal against this refusal – whether this Court has jurisdiction to hear an appeal from a decision of the Industrial Court

Workers' Compensation and Rehabilitation Act 2003 (Qld),
s 561(4)

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523; [1922] HCA 17, cited

COUNSEL:

The applicant appeared on his own behalf
P B Rashleigh for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Q-Comp Legal Services Unit for the respondent

1. KEANE JA:  On 31 January 2005 Mr MacDonald applied to WorkCover Queensland ("WorkCover") for workers' compensation benefits in respect of an injury to his back said to have been suffered by him in the course of his employment.  WorkCover decided to reject his application on the basis that it was out of time, and its decision was reviewed by the review unit of Q-Comp which upheld WorkCover's initial decision.  An appeal to an Industrial Magistrate was successful and resulted in the referral of Mr MacDonald's claim back to WorkCover.

1. On 21 September 2006 WorkCover decided that Mr MacDonald had not suffered a compensable injury.  This decision was upheld by the Q-Comp review unit. 

   
   

   Mr MacDonald appealed again to an Industrial Magistrate who confirmed the decision of the Q-Comp review unit on the basis that, in fact, any injury to

   
   

   Mr MacDonald's back had been sustained prior to the commencement of his employment.  Mr MacDonald then appealed to the Industrial Court.

1. On 12 June 2008 the Industrial Court dismissed Mr MacDonald's appeal.  The Industrial Court upheld the finding of the Industrial Magistrate that Mr MacDonald had not suffered a compensable injury.

1. Mr MacDonald now seeks leave to appeal to this Court. Mr MacDonald appreciates that s 561 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) is an obstacle in the path of an appeal to this Court in that it provides, by subsection (4), that a decision by the Industrial Court on appeal from an Industrial Magistrate "is final". Mr MacDonald apprehends that this obstacle may be overcome by the grant by this Court of leave to appeal. In this regard, he is mistaken.

1. There is no common law right of appeal to this Court.  An appeal to this Court, whether as of right or by leave, lies only pursuant to statute.[1] 

   [1]South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 at 533; Fox v Percy (2003) 214 CLR 118 at 124 – 125 [20].

1. There is simply no statutory authority for an appeal from the decision of the Industrial Court in this case to this Court. The express terms of s 561(4) of the Workers' Compensation and Rehabilitation Act serve to emphasise the point.

1. Mr MacDonald's application is misconceived.  It should be struck out.

1. FRASER JA:  I agree with the order proposed by Keane JA and with his Honour's reasons for the order.

1. JONES J:  I agree.