Moller v Queensland Rail
[2014] QSC 71
•24 April 2014
SUPREME COURT OF QUEENSLAND
CITATION:
Moller v Queensland Rail [2014] QSC 71
PARTIES:
NORMAN BRUCE MOLLER
(applicant)
v
QUEENSLAND RAIL
ABN 68 598 268 528(respondent)
FILE NO/S:
SC No 2830 of 2014
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
24 April 2014
DELIVERED AT:
Brisbane
HEARING DATE:
16 April 2014
JUDGE:
Chief Justice
ORDER:
The applicant’s application filed 25 March 2014 be dismissed.1.
2. The applicant pay the respondent’s costs of and incidental to his application, and the respondent’s application, to be assessed on the indemnity basis.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – EXCLUDED DECISIONS – OTHER DECISIONS – the applicant was employed by the respondent as Chief Management Account until his employment was terminated on 20 February 2014 – the applicant applied for relief under the Judicial Review Act 1991 (Qld) (“the Act”) – section 18A of the Act provides that a decision of a rail government entity in relation to its commercial activities is excluded from the operation of the Act – whether the applicant is excluded from applying for relief under the Act – whether the applicant’s judicial review application should be dismissed pursuant to s 48 of the Act
Judicial Review Act 1991 (Qld), s 18A, s 43, s 48
Transport Infrastructure Act 1994 (Qld), s 486
COUNSEL:
A D Scott for the applicant
M Hinson QC for the respondent
SOLICITORS:
Milner Lawyers for the applicant
Clayton Utz for the respondent
CHIEF JUSTICE: The applicant, Mr Moller, was until 20 February 2014 employed by the respondent, Queensland Rail, as Chief Management Accountant. His employment was terminated by letter of that date.
He applied, on 25 March 2014, under the Judicial Review Act 1991 (“the Act”), for relief in respect of aspects of that decision.
The respondent seeks the dismissal of the application because the decision is not subject to review under the Act. Section 18A provides that “This Act does not apply …” to such a decision (because it was made in carrying out the respondent’s commercial activities, see s 486 of the Transport Infrastructure Act 1994).
Mr Scott, who appeared for the applicant, submitted that it is arguable s 18A excludes only the statutory review mechanism under Part 3 (“Statutory orders of review”), and not Part 5 (“Prerogative orders and injunctions”).
The language of s 18A is however intractably clear. Nothing in the Act applies to such a decision.
Mr Scott alternatively submitted that s 43 of the Act allows the amendment of the application, to claim relevant declarations, with an order under (3) that it continue as if begun in accordance with (3)(b)(ii).
The application does not presently claim declarations. Even if it did, s 43 of the Act simply would have no application to it because of s 18A. I note, incidentally, that the applicant is not left bereft of remedy. He may apply under the general law for relief in respect of the termination of his employment, if he contends that to have been unlawful.
Mr Scott sought an adjournment so that he could re-cast the application. He was briefed in the matter only the night before. He is in no way responsible for the current state of the matter. But as emerges from what I have said already, there would be no point in adjourning the matter.
I should say, in fairness, that Mr Scott handled a difficult situation well.
I order, on the respondent’s application, that the applicant’s application filed 25 March 2014 be dismissed.
Mr Hinson QC, for the respondent, sought costs, and that they be assessed on the indemnity basis.
Costs should follow the event. As to the basis for assessment, the applicant was advised in advance of an intended application under s 48 of the Act, asked to withdraw his application, and advised that indemnity costs would otherwise be sought. Allowing for those circumstances, and the patent untenability of his application because of s 18A, he should be required to pay indemnity costs.
I order that the applicant pay the respondent’s costs of and incidental to his application, and the respondent’s application, to be assessed on the indemnity basis.
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