Macpherson v Rio Tinto Coal Australia Pty Ltd - [2005] QSC 120

SUPREME COURT OF QUEENSLAND

CITATION: Macpherson v Rio Tinto Coal Australia Pty Ltd [2005] QSC
120
PARTIES: PETER MACPHERSON
(applicant)
v
RIO TINTO COAL AUSTRALIA PTY LTD
(respondent)
FILE NO/S: BS 1538/05
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING Supreme Court at Brisbane
COURT:
DELIVERED ON: 12 May 2005
DELIVERED AT: Brisbane
HEARING DATE: 6 May 2005
JUDGE: McMurdo J
ORDERS: 1. It will be declared that upon the proper construction of s 49(2) of the Regulation, the respondent’s notice dated 24 February 2005 in relation to the applicant was not a notice which the respondent was permitted or obliged to give according to that section
2. It will be further declared that upon the proper construction of s 46 and s 49 of the Regulation, the respondent’s notice given to Dr Jonsson dated 24 February 2005 was not a notice given according to s 49(3) so as to empower Dr Jonsson as a nominated medical advisor to make a decision pursuant to s 46(4)(b)
CATCHWORDS: STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION – PARTICULAR WORDS – where section 49 of Coal Mining Safety and Health Regulation 2001 (Qld) required a coal mine’s safety and health management system to provide for notice of any “appreciable increase in the level of risk to a coal mine worker” – where worker developed a back injury and was off work – whether section required notice of increase in the level of risk which comes from a change to a worker’s own health – where section must be interpreted in the context of the Regulation and the Act
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF THE COURT – FUTILITY OF DECLARATION – where applicant employer may potentially use other provisions of the Regulation to achieve a similar result – where it is alleged the subject notices have no consequence on the applicant’s employment – whether declaration has no utility
Judicial Review Act
1991 (Qld), s 4, s 30 s 19, s 29, s 30, s 31, s 41, s 42, s 62
Coal Mining Safety and Health Regulation 2001 (Qld), s 45, s 46, s 48, s 49

COUNSEL: M D Hinson SC, with J W Merrell, for the applicant
P D Applegarth SC, with A W Duffy for the respondent
SOLICITORS: Hall Payne for the applicant Freehills for the respondent
McMURDO J:
The issues in outline

The applicant is employed by the respondent at its Tarong coal mine. His duties include driving graders, loaders and trucks. Last December he developed an aggravation of a lower back injury which caused him to be absent from work. He was still off work on 11 February of this year when his doctor issued a certificate that he would be fit to return to work on the following day. The respondent does not accept that opinion. Expressing a belief that the applicant is not fit to resume his duties, the respondent has taken steps to have the applicant assessed by…

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.

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Details

Case: [2005] QSC 120
Decision Date: 12 May 2005

CaseChat Overview and Summary

In the matter of Macpherson v Rio Tinto Coal Australia Pty Ltd, the applicant, Macpherson, sought a declaration that a notice provided by the respondent, Rio Tinto Coal Australia Pty Ltd, was not required under section 49(2) of the Coal Mining Safety and Health Regulation 2001 (Qld). Macpherson argued that the notice, which pertained to an appreciable increase in the level of risk to a coal mine worker, should not apply to changes in a worker's own health. The court was required to interpret section 49(2) of the Regulation in light of the Coal Mining Safety and Health Act 2001 (Qld) and determine if the notice was obligatory under the statutory provisions.

The court examined the language of section 49(2) and considered its context within the broader statutory framework. The court recognised that the section must be interpreted in light of the Regulation and the Act. The court concluded that the notice was not required because section 49(2) was intended to address changes in the working environment or conditions that affect workers’ safety and health, rather than changes in individual workers' health. Additionally, the court considered the potential futility of the declaration, given that the respondent could potentially use other provisions of the Regulation to achieve a similar result. The court also noted that the subject notices had no consequence on the applicant’s employment.

The court found that the declaration sought by the applicant had no utility and was unlikely to achieve any meaningful relief. The court held that upon the proper construction of section 49(2) of the Regulation, the notice dated 24 February 2005 in relation to Macpherson was not a notice which the respondent was permitted or obliged to give according to that section. The court therefore granted the declaration as sought by the applicant.

Orders

Orders of the court

1. It will be declared that upon the proper construction of s 49(2) of the Regulation, the respondent’s notice dated 24 February 2005 in relation to the applicant was not a notice which the respondent was permitted or obliged to give according to that section

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Macpherson v Rio Tinto Coal Australia Pty Ltd [2005] QSC 120
PARTIES:	PETER MACPHERSON (applicant) v RIO TINTO COAL AUSTRALIA PTY LTD (respondent)
FILE NO/S:	BS 1538/05
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING	Supreme Court at Brisbane
COURT:
DELIVERED ON:	12 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2005
JUDGE:	McMurdo J
ORDERS:	1. It will be declared that upon the proper construction of s 49(2) of the Regulation, the respondent’s notice dated 24 February 2005 in relation to the applicant was not a notice which the respondent was permitted or obliged to give according to that section
2. It will be further declared that upon the proper construction of s 46 and s 49 of the Regulation, the respondent’s notice given to Dr Jonsson dated 24 February 2005 was not a notice given according to s 49(3) so as to empower Dr Jonsson as a nominated medical advisor to make a decision pursuant to s 46(4)(b)

COUNSEL:	M D Hinson SC, with J W Merrell, for the applicant P D Applegarth SC, with A W Duffy for the respondent
SOLICITORS:	Hall Payne for the applicant Freehills for the respondent
McMURDO J:
The issues in outline