MBR v Parker - [2012] QCA 271

SUPREME COURT OF QUEENSLAND

CITATION:

MBR v Parker [2012] QCA 271

PARTIES:

MBR
(appellant)
v
DAVID PARKER
(respondent)

FILE NO/S:

Appeal No 11839 of 2011
SC No 166 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

5 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2012

JUDGES:

Margaret McMurdo P and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal.1.

Set aside the orders of the primary judge.2.

Instead, order that the decision of the respondent set out in the Health Assessment Report dated 16 March 2011, that the appellant is not fit to undertake his current position because of the restriction that he is unfit to operate due to a significant and foreseeable risk of sudden incapacity; that the duration of the appellant's restriction is permanent; and that no further review is necessary, be set aside.3.

The respondent pay the appellant's costs of the appeal and the primary hearing.4.

The appellant's name be anonymised in the Court's reasons for judgment and in the transcript of the appeal hearing provided to those other than the parties.5.

No-one other than the parties be provided with court file copies of material relating or referring to the appellant's medical records without an order of a Supreme Court judge.6.

CATCHWORDS:

STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION – PARTICULAR WORDS – where the respondent carried out a Health Assessment of the appellant on a form approved under the Coal Mining Safety and Health Regulation 2001 (Qld) ('the Regulation') made under the Coal Mining Safety and Health Act 1999 (Qld) – where the respondent found the appellant was permanently unfit to undertake his current position and no further review was necessary because of the appellant's body mass index (BMI) and neck circumference – where the appellant unsuccessfully sought judicial review of the respondent's decision – whether the respondent failed to comply with the requirements of s 46(3)(a) of the Regulation – whether there was evidence to support the respondent's decision – whether the names of the parties should be anonymised

Coal Mining Safety and Health Act 1999 (Qld)
Coal Mining Safety and Health Regulation 2001 (Qld), s 46, s 47, s 52
Judicial Review Act 1991 (Qld), s 20, s 24

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited
M v P [2011] QSC 350, related

COUNSEL:

M Hinson SC, with C Hartigan, for the appellant
D O'Gorman SC for the respondent

SOLICITORS:

Maurice Blackburn Lawyers for the appellant
Avant Law Pty Ltd for the respondent

MARGARET McMURDO P: On 16 March 2011, the appellant was a 47 year old operator of heavy machinery at the Curragh coal mine. The respondent, Dr David Parker, carried out a Health Assessment of the appellant and completed a Health Assessment Report on 16 March 2011 on a form approved under the Coal Mining…

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 MBR v Parker

Details

AGLC: MBR v Parker [2012] QCA 271
Case: [2012] QCA 271
Decision Date: 5 October 2012

CaseChat Overview and Summary

In the case of MBR v Parker, the appellant challenged the decision of the respondent to determine that he was permanently unfit to undertake his position as a mineworker. The decision was made following a Health Assessment completed on a form approved under the Coal Mining Safety and Health Regulation 2001 (Qld). The respondent concluded that the appellant's body mass index (BMI) and neck circumference made him unfit for his role, and that no further review was necessary. The appellant sought judicial review of the respondent's decision, which was ultimately unsuccessful. The appeal to the court focused on whether the respondent complied with statutory requirements, the sufficiency of evidence for the decision, and the anonymisation of the parties' names.

The court had to determine whether the respondent's decision adhered to section 46(3)(a) of the Regulation and if there was adequate evidence to support the conclusion that the appellant was permanently unfit for his position. Furthermore, the court had to consider whether the appellant's and respondent's names should be anonymised in the published reasons for judgment and appeal hearing transcript, and whether access to the appellant's medical records should be restricted to those outside the immediate parties.

The court found that the respondent failed to comply with the statutory requirements, as the Health Assessment form did not include the necessary details about the appellant's medical condition. The court also determined that the evidence was insufficient to support the respondent's decision. Consequently, the appeal was allowed, and the orders of the primary judge were set aside. The decision of the respondent was quashed, and it was ordered that the appellant's name be anonymised in the Court's reasons for judgment and the appeal hearing transcript. Additionally, access to the appellant's medical records was restricted to the parties unless a Supreme Court judge authorised otherwise. Finally, the respondent was ordered to pay the appellant's costs of the appeal and the primary hearing.

Orders

Orders of the court

Allow the appeal.1.

Set aside the orders of the primary judge.2.

Instead, order that the decision of the respondent set out in the Health Assessment Report dated 16 March 2011, that the appellant is not fit to undertake his current position because of the restriction that he is unfit to operate due to a significant and foreseeable risk of sudden incapacity; that the duration of the appellant's restriction is permanent; and that no further review is necessary, be set aside.3.

The respondent pay the appellant's costs of the appeal and the primary hearing.4.

The appellant's name be anonymised in the Court's reasons for judgment and in the transcript of the appeal hearing provided to those other than the parties.5.

No-one other than the parties be provided with court file copies of material relating or referring to the appellant's medical records without an order of a Supreme Court judge.6.

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:	MBR v Parker [2012] QCA 271
PARTIES:	MBR (appellant) v DAVID PARKER (respondent)
FILE NO/S:	Appeal No 11839 of 2011 SC No 166 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	5 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	22 May 2012
JUDGES:	Margaret McMurdo P and Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Allow the appeal.1. Set aside the orders of the primary judge.2. Instead, order that the decision of the respondent set out in the Health Assessment Report dated 16 March 2011, that the appellant is not fit to undertake his current position because of the restriction that he is unfit to operate due to a significant and foreseeable risk of sudden incapacity; that the duration of the appellant's restriction is permanent; and that no further review is necessary, be set aside.3. The respondent pay the appellant's costs of the appeal and the primary hearing.4. The appellant's name be anonymised in the Court's reasons for judgment and in the transcript of the appeal hearing provided to those other than the parties.5. No-one other than the parties be provided with court file copies of material relating or referring to the appellant's medical records without an order of a Supreme Court judge.6.
CATCHWORDS:	STATUTES – BY-LAWS AND REGULATIONS – CONSTRUCTION – PARTICULAR WORDS – where the respondent carried out a Health Assessment of the appellant on a form approved under the Coal Mining Safety and Health Regulation 2001 (Qld) ('the Regulation') made under the Coal Mining Safety and Health Act 1999 (Qld) – where the respondent found the appellant was permanently unfit to undertake his current position and no further review was necessary because of the appellant's body mass index (BMI) and neck circumference – where the appellant unsuccessfully sought judicial review of the respondent's decision – whether the respondent failed to comply with the requirements of s 46(3)(a) of the Regulation – whether there was evidence to support the respondent's decision – whether the names of the parties should be anonymised Coal Mining Safety and Health Act 1999 (Qld) Coal Mining Safety and Health Regulation 2001 (Qld), s 46, s 47, s 52 Judicial Review Act 1991 (Qld), s 20, s 24 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited M v P [2011] QSC 350, related
COUNSEL:	M Hinson SC, with C Hartigan, for the appellant D O'Gorman SC for the respondent
SOLICITORS:	Maurice Blackburn Lawyers for the appellant Avant Law Pty Ltd for the respondent