Plester v WorkCover Queensland - [2004] QCA 390

SUPREME COURT OF QUEENSLAND

CITATION:

Plester v WorkCover Queensland & Ors [2004] QCA 390

PARTIES:

SIMON EDWARD PLESTER
(applicant/appellant)
v
WORKCOVER QUEENSLAND
(first respondent/first respondent)
Q-COMP
(second respondent/second respondent)
ORTHOPAEDIC ASSESSMENT TRIBUNAL
(third respondent/third respondent)

FILE NO/S:

Appeal No 5521 of 2004
SC No 11538 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2004

JUDGES:

de Jersey CJ, Davies and Jerrard JJA
Separate reasons for judgment of each member of the Court, de Jersey CJ and Davies JA concurring as to the order made, Jerrard JA dissenting

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW – where the appellant appeals against the learned primary Judge’s dismissal of his application for the judicial review of a decision of the Orthopaedic Assessment Tribunal – whether the Tribunal’s determination, or the determination of the learned primary Judge was in error

WorkCover Queensland Act 1996 (Qld), s 440(2), s 442(2)

Maher v Dr Lawrence, Dr Hayes & Dr Coghlan as members of the General Medical Assessment Tribunal (Psychiatric) & Ors [2003] QCA 517; Appeal No 4806 of 2003, 21 November 2003, considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, cited

COUNSEL:

K D Dorney QC, with P F Mylne, for the applicant/appellant
P A Keane QC, with S A McLeod, for the respondents

SOLICITORS:

Ferguson Cannon Lawyers (Maroochydore) for the applicant/appellant
Bradley & Co for the respondents

de JERSEY CJ: The appellant appeals against the learned primary Judge’s dismissal of his application for the judicial review of a decision of the Orthopaedic Assessment Tribunal.

The appellant applied to WorkCover Queensland for a damages certificate pursuant to s 265(2) of the WorkCover Queensland Act 1996. WorkCover issued a conditional certificate but refused to make it unconditional, because not satisfied that the appellant had sustained an injury within the meaning of the Act. The matter was referred to the Orthopaedic Assessment Tribunal (“the Tribunal”) for decision.

Under s 440(2) of the Act, the Tribunal was obliged to “decide whether the matters alleged for the purpose of seeking damages constitute an injury … and, if so, the nature of the injury”. Section 442(2) obliged it to decide “(a) whether the worker has sustained a degree of permanent impairment; and (b) if the worker has sustained a degree of permanent impairment – (i) the degree of permanent impairment resulting from the injury; and (ii) the nature and degree of the impairment.”

The reference to the Tribunal stated that the appellant “applied for a Damages Certificate … in respect of a condition certified as ‘rotator cuff syndrome, significant tearing of supraspinatus tendon and involvement of subacromial bursa, psychological injury’ which he attributed to his employment as a Builder’s Labourer …”. The Tribunal determined that “the…

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: [2004] QCA 390
Decision Date: 22 October 2004

CaseChat Overview and Summary

In the case of Plester v WorkCover Queensland, the appellant sought judicial review of a decision made by the Orthopaedic Assessment Tribunal. The appellant contested the tribunal's determination and subsequently appealed against the primary judge's decision to dismiss his application for review. The court's task was to determine whether the tribunal's decision, or that of the primary judge, was in error.

The central issue before the court was whether the primary judge erred in law when dismissing the appellant's application for judicial review. The appellant argued that the tribunal had made an error of law in its determination, which in turn led to the primary judge's erroneous dismissal of his application. The court had to examine the tribunal's decision, the primary judge's reasoning, and the grounds for review as outlined in the relevant legislation.

The court held that the tribunal's decision was not in error, and neither was the primary judge's dismissal of the appellant's application for judicial review. The tribunal had correctly applied the relevant statutory provisions in reaching its decision, and the primary judge had properly exercised his discretion in dismissing the application. The court found no basis for the appellant's claim of error of law. Consequently, the appeal was dismissed, with the appellant to bear the costs of the appeal to be assessed.

Orders

Orders of the court

Appeal dismissed with costs to be assessed

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:	Plester v WorkCover Queensland & Ors [2004] QCA 390
PARTIES:	SIMON EDWARD PLESTER (applicant/appellant) v WORKCOVER QUEENSLAND (first respondent/first respondent) Q-COMP (second respondent/second respondent) ORTHOPAEDIC ASSESSMENT TRIBUNAL (third respondent/third respondent)
FILE NO/S:	Appeal No 5521 of 2004 SC No 11538 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Personal Injury
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2004
JUDGES:	de Jersey CJ, Davies and Jerrard JJA Separate reasons for judgment of each member of the Court, de Jersey CJ and Davies JA concurring as to the order made, Jerrard JA dissenting
ORDER:	Appeal dismissed with costs to be assessed
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW – where the appellant appeals against the learned primary Judge’s dismissal of his application for the judicial review of a decision of the Orthopaedic Assessment Tribunal – whether the Tribunal’s determination, or the determination of the learned primary Judge was in error
WorkCover Queensland Act 1996 (Qld), s 440(2), s 442(2) Maher v Dr Lawrence, Dr Hayes & Dr Coghlan as members of the General Medical Assessment Tribunal (Psychiatric) & Ors [2003] QCA 517; Appeal No 4806 of 2003, 21 November 2003, considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, cited
COUNSEL:	K D Dorney QC, with P F Mylne, for the applicant/appellant P A Keane QC, with S A McLeod, for the respondents
SOLICITORS:	Ferguson Cannon Lawyers (Maroochydore) for the applicant/appellant Bradley & Co for the respondents