van der Berg v WorkCover Queensland and another - [2021] QSC 28

SUPREME COURT OF QUEENSLAND

CITATION:

van der Berg v WorkCover Queensland & another [2021] QSC 28

PARTIES:

PETRUS STEFANUS VAN DER BERG

(applicant)

v

WORKCOVER QUEENSLAND

(first respondent)

WORKERS’ COMPENSATION REGULATOR

(Previously QCOMP)

(second respondent)

FILE NO/S:

BS 10250 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED EX TEMPORE ON:

11 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2021

JUDGE:

Bond J

ORDER:

1. The application for a statutory order of review filed by the applicant on 22 September 2020 be dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld).

2. The applicant should pay the costs of the first and second respondents to be assessed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – OTHER ORDERS – where the applicant seeks a statutory order of review of the respondents’ decision to refuse the applicant’s claim for compensation – where the respondents’ seek a summary dismissal of the application pursuant to the Judicial Review Act 1991 (Qld) – whether the applicant is a person aggrieved by the decision – where there was significant delay in bringing the application – where the matters in issue were considered and decided in previous proceedings

Judicial Review Act 1991 (Qld), s 13, s 20(2), 26, 48

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 108, Chapter 13, s 546A

Deloitte Touche Tohmatsu v Australian Securities Commission [1995] 128 ALR 318, cited

Deng v Q-Comp [2011] QSC 191, cited
Lowis v Queensland Industrial Relations Commission [2019] QSC 277, cited
Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Qld [2014] Qd R 592; [2014] QSC 196, cited
PB v WorkCover Queensland [2020] QCA 278, cited

Perry v Director of Public Prosecutions [1985] 6 FCR 578, cited

Van Der Berg v Key Solutions [2020] QSC 262, cited

COUNSEL:
The applicant appeared on his own behalf
S J Deves for the first respondent

M A Eade for the second respondent

SOLICITORS:
The applicant appeared on his own behalf with C M van der Berg assisting
Hall & Wilcox for the first respondent

Crown Solicitor for the second respondent

HIS HONOUR: By way of an application for a statutory order of review pursuant to the Judicial Review Act 1991 (Qld) (JR Act), the applicant seeks to have this court review a decision of the first respondent (WorkCover) made on 5 November 2013 to reject the applicant’s application for compensation pursuant to s 546(A) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act), and a decision of the second respondent (the Regulator) on 10 March 2014 to affirm the decision of WorkCover pursuant to s 545 of the Act. The application was filed on 22 September 2020.

I have before me applications by WorkCover and the Regulator for summary dismissal of the application pursuant to ss 12, 13 or 48 of the JR Act.…

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: [2021] QSC 28
Decision Date: 11 February 2021

CaseChat Overview and Summary

In the matter of van der Berg v WorkCover Queensland and another, the Queensland Court of Appeal was tasked with reviewing the decision of the respondent, WorkCover Queensland, to refuse the applicant's claim for compensation. The applicant sought a statutory order of review of the decision, contending that the refusal was unlawful. WorkCover Queensland, along with a co-respondent, sought a summary dismissal of the application, arguing that the applicant was not a person aggrieved by the decision and that there had been a significant delay in bringing the application. Additionally, it was argued that the matters in issue had already been considered and decided in previous proceedings.

The central legal issues before the court were whether the applicant was a person aggrieved by the decision and whether there were any grounds to allow the application despite the delay and previous proceedings. The court considered the definition of a "person aggrieved" under the Judicial Review Act 1991 (Qld) and whether the applicant met the criteria. The court also examined the impact of the significant delay in bringing the application and the preclusive effect of the previous proceedings. The court noted that the applicant had failed to demonstrate any exceptional circumstances that would justify the delay, and that the previous proceedings had indeed considered and decided the matters in issue.

The court found that the applicant was not a person aggrieved by the decision, as the matters had already been determined in prior litigation. Additionally, the significant delay in bringing the application, without any justification, further undermined the applicant's standing. The court held that the application should be dismissed pursuant to section 48 of the Judicial Review Act 1991 (Qld). Consequently, the application for a statutory order of review was dismissed, and the applicant was ordered to pay the costs of the respondents to be assessed.

Orders

Orders of the court

ORDER:

The application for a statutory order of review filed by the applicant on 22 September 2020 be dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld).

The applicant should pay the costs of the first and second respondents 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:	van der Berg v WorkCover Queensland & another [2021] QSC 28
PARTIES:	PETRUS STEFANUS VAN DER BERG (applicant) v WORKCOVER QUEENSLAND (first respondent) WORKERS’ COMPENSATION REGULATOR (Previously QCOMP) (second respondent)
FILE NO/S:	BS 10250 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED EX TEMPORE ON:	11 February 2021
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2021
JUDGE:	Bond J
ORDER:	1. The application for a statutory order of review filed by the applicant on 22 September 2020 be dismissed pursuant to s 48 of the *Judicial Review Act* 1991 (Qld). 2. The applicant should pay the costs of the first and second respondents to be assessed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – OTHER ORDERS – where the applicant seeks a statutory order of review of the respondents’ decision to refuse the applicant’s claim for compensation – where the respondents’ seek a summary dismissal of the application pursuant to the Judicial Review Act 1991 (Qld) – whether the applicant is a person aggrieved by the decision – where there was significant delay in bringing the application – where the matters in issue were considered and decided in previous proceedings Judicial Review Act 1991 (Qld), s 13, s 20(2), 26, 48 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 108, Chapter 13, s 546A Deloitte Touche Tohmatsu v Australian Securities Commission [1995] 128 ALR 318, cited Deng v Q-Comp [2011] QSC 191, cited Lowis v Queensland Industrial Relations Commission [2019] QSC 277, cited Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Qld [2014] Qd R 592; [2014] QSC 196, cited PB v WorkCover Queensland [2020] QCA 278, cited Perry v Director of Public Prosecutions [1985] 6 FCR 578, cited Van Der Berg v Key Solutions [2020] QSC 262, cited
COUNSEL:	The applicant appeared on his own behalf S J Deves for the first respondent M A Eade for the second respondent
SOLICITORS:	The applicant appeared on his own behalf with C M van der Berg assisting Hall & Wilcox for the first respondent Crown Solicitor for the second respondent