Nelson v Q-Comp - [2004] QSC 167

SUPREME COURT OF QUEENSLAND

CITATION:

Nelson v Q-Comp [2004] QSC 167

PARTIES:

MARK ANTONY NELSON
(applicant)
v
Q-COMP
(respondent)

FILE NO/S:

BS4067 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

9 June 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2004

JUDGE:

Mullins J

ORDER:

Application filed on 24 May 2004 is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION –QUEENSLAND – JURISDICTION AND GENERALLY – EXISTENCE OF OTHER RIGHTS OF REVIEW – application under s48(1) of Judicial Review Act1991 (Q) to strike out application for statutory order of review on the basis that there was a statutory right of appeal against the relevant decision – allegation of breach of the rules of natural justice – circumstances in which the decision was made and the public interest in having any procedural error in the decision making identified justify allowing the application for statutory order of review to proceed

Judicial Review Act 1991
WorkCover Queensland Act 1996

Ansell v Wells (1982) 43 ALR 41
Stubberfield v Webster [1996] 2 QdR 211
Turner v Valuers’ Registration Committee of Queensland [2001] 2 QdR 100

COUNSEL:

D C Rangiah for the applicant
M D Hinson SC for the respondent

SOLICITORS:

Maurice Blackburn Cashman for the applicant
C W Lohe, Crown Solicitor for the respondent

MULLINS J:On 10 May 2004 the applicant filed an application for statutory order of review pursuant to the Judicial Review Act 1991 (“JRA”) to review the decision of the respondent dated 27 April 2004 (“the decision”) confirming a decision by Qantas Airways Ltd (“Qantas”) to decline further liability to pay statutory workers’ compensation benefits to the applicant. The respondent’s decision was made under s 494 of the WorkCover Queensland Act 1996 (“WQA”). The respondent filed an application on 24 May 2004 seeking an order that the applicant’s application be dismissed under s 48(1) of the JRA.

Application for statutory order of review

The applicant’s application sets out 3 grounds for seeking an order quashing or setting aside the decision. The primary ground relied upon in the application is that a breach of the rules of natural justice happened in relation to the making of the decision. The particulars which are given of that ground are:

“(a)The Respondent was under an obligation to afford the Applicant natural justice prior to making its decision, including giving the Applicant a reasonable opportunity to present evidence to the Respondent and make submissions in support of his application for review of Qantas’ decision.

(b)On 31 March, 7 April and 8 April 2004 the Applicant’s solicitors informed the Respondent that they were seeking instructions concerning the obtaining of a further report from a medical specialist addressing the link between the applicant’s medical condition of Kienbock’s disease and his employment with Qantas and requesting that the decision not be made until any such report was obtained.

(c)On 14 April and 15 April 2004 the Applicant’s solicitors advised the Respondent that an appointment had been made for the Applicant…

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 Nelson v Q-Comp

Details

AGLC: Nelson v Q-Comp [2004] QSC 167
Case: [2004] QSC 167
Decision Date: 9 June 2004

CaseChat Overview and Summary

The applicant, Nelson, brought proceedings against Q-Comp, seeking a statutory order of review. The matter was heard in the Queensland Court of Appeal. The primary dispute centred on the existence of an alternative statutory right of review, specifically an appeal under the provisions of the Judicial Review Act 1991 (Q). The application to strike out the order of review was based on the argument that there was a statutory right of appeal available to the applicant against the decision in question. The applicant alleged a breach of the rules of natural justice in the context of the decision-making process. The court was tasked with determining whether the existence of a statutory right of appeal precluded the applicant from pursuing a statutory order of review, and whether the circumstances surrounding the decision and the public interest warranted allowing the application for statutory order of review to proceed.

The court examined the relevant provisions of the Judicial Review Act 1991 (Q) and considered whether the statutory right of appeal was an exclusive remedy. The court held that the existence of a statutory right of appeal did not necessarily preclude an application for a statutory order of review. The court further considered the nature of the alleged breach of natural justice and the circumstances under which the decision was made. The court determined that the public interest in ensuring that any procedural errors in the decision-making process were rectified justified allowing the application for statutory order of review to proceed.

The Queensland Court of Appeal dismissed the application to strike out the application for statutory order of review. The court found that the statutory right of appeal was not an exclusive remedy and that the applicant was entitled to pursue the statutory order of review. The court also found that the circumstances of the case, including the alleged breach of natural justice and the public interest, warranted allowing the application to proceed. The application filed on 24 May 2004 was dismissed.

Orders

Orders of the court

Application filed on 24 May 2004 is dismissed

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:	Nelson v Q-Comp [2004] QSC 167
PARTIES:	MARK ANTONY NELSON (applicant) v Q-COMP (respondent)
FILE NO/S:	BS4067 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	9 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2004
JUDGE:	Mullins J
ORDER:	Application filed on 24 May 2004 is dismissed
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION –QUEENSLAND – JURISDICTION AND GENERALLY – EXISTENCE OF OTHER RIGHTS OF REVIEW – application under s48(1) of Judicial Review Act1991 (Q) to strike out application for statutory order of review on the basis that there was a statutory right of appeal against the relevant decision – allegation of breach of the rules of natural justice – circumstances in which the decision was made and the public interest in having any procedural error in the decision making identified justify allowing the application for statutory order of review to proceed Judicial Review Act 1991 WorkCover Queensland Act 1996 Ansell v Wells (1982) 43 ALR 41 Stubberfield v Webster [1996] 2 QdR 211 Turner v Valuers’ Registration Committee of Queensland [2001] 2 QdR 100
COUNSEL:	D C Rangiah for the applicant M D Hinson SC for the respondent
SOLICITORS:	Maurice Blackburn Cashman for the applicant C W Lohe, Crown Solicitor for the respondent