Bundaberg Health Service District, Queensland Health v Brugman & Anor [2006] ICQ 7 (2006) 181 QGIG 276

[Extract from Queensland Government Industrial Gazette, dated 24 February, 2006, Vol. 181, No. 8, pages 276-277] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal against decision of industrial magistrate Bundaberg Health Service District, Queensland Health AND Gregory Thomas Brugman and Q-COMP (C/2005/80) PRESIDENT HALL 8 February 2006 DECISION Gregory Thomas Brugman was an applicant for compensation benefits under the Workers' Compensation and Rehabilitation Act 2003. WorkCover rejected his application. He sought a statutory review. Q-COMP confirmed the earlier decision of WorkCover. Mr Brugman then appealed to the Industrial Magistrates Court. His appeal was successful. The Bundaberg Health Service District, Queensland Health (the employer of Mr Brugman at all material times) now seeks to appeal to this Court against the decision of the Industrial Magistrate. The appeal is based on s. 341(2) of the Industrial Relations Act 1999. It is not based on s. 561 of the Workers' Compensation and Rehabilitation Act 2003 because s. 561 confines the right to appeal against the final decision of an Industrial Magistrate to "a party aggrieved by the Industrial Magistrate's decision". It is the effect of s. 552(1) that the parties to the proceedings in the Industrial Magistrates Court were the Appellant in those proceedings (Mr Brugman) and the Respondent (Q-COMP). The contention of Bundaberg Health Service District, Queensland Health is that s. 341(2) of the Industrial Relations Act 1999 is very much more expansive than s. 561 of the Workers' Compensation and Rehabilitation Act 2003. Section 341(2) provides: "A person may appeal to the court if dissatisfied with the decision of the magistrate in relation to a matter for which the magistrate has jurisdiction." The expression "person dissatisfied" - and I accept the submission that there is no distinction between the expression "person dissatisfied" which appears at each of s. 341(1) and s. 342(1) and the marginally different language which appears at s. 341(2) - is defined by Schedule 5 and means, inter alia, "a party to the proceedings" or "a person bound by the decision". In that context, the expression "person bound by the decision" is plainly intended to include persons who were not parties to the proceedings. For present purposes, I am prepared to assume that Bundaberg Health Service District, Queensland Health are "bound" by the Industrial Magistrates decision in that it will be conclusive against them in the determination of premiums payable under the Workers' Compensation and Rehabilitation Act 2003. The difficulty lies in the relationship between the Industrial Relations Act 1999 and the Workers' Compensation and Rehabilitation Act 2003. The Industrial Magistrates Court is brought into existence by Chapter 8, Part 3 of the Industrial Relations Act 1999. Materially, by s. 292(1)(a) an Industrial Magistrate has jurisdiction to exercise powers conferred on the Industrial Magistrates Court, or jurisdiction given to the Industrial Magistrates Court by the Industrial Relations Act 1999 or by another Act. One such other Act is the Workers' Compensation and Rehabilitation Act 2003, which by Chapter 13, Part 3, Division 1 provides for appeals to the Industrial Magistrate in certain matters arising under that Act. It follows that an Industrial Magistrate exercising jurisdiction in an appeal such as that taken to the Industrial Magistrates Court in this matter comes to the exercise of jurisdiction armed with the general powers of an Industrial Magistrate under the Industrial Relations Act 1999 as well as the specific powers of an Industrial Magistrate under the Workers' Compensation and Rehabilitation Act 2003. It was for that very reason the Bundaberg Health Service District, Queensland Health succeeded in its application to be heard by the Industrial Magistrates Court notwithstanding that the Bundaberg Health Service District, Queensland Health was not a party to the proceedings. Consistently with the decision of this Court in Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138 and State of Queensland v Squires and WorkCover Queensland (2002) 170 QGIG 20 the Industrial Magistrate permitted Bundaberg Health Service District, Queensland Health to be heard pursuant to s. 320(2) of the Industrial Relations Act 1999. Like the Industrial Magistrates Court, the Industrial Court was brought into existence (as a Superior Court of Record) by legislation and, by s. 242 of the Industrial Relations Act 1999, was continued in existence as the Industrial Court of Queensland. By s. 248 the Court may, inter alia, perform all functions and exercise all powers prescribed for, to the Court by the Industrial Relations Act 1999 or by another Act. One such other Act is the Workers' Compensation and Rehabilitation Act 2003 which (by s. 561) invests the Court with power to hear an appeal against a final decision of the Industrial Magistrate in a matter such as that currently "before" the Court. But s. 561 is the very section of the Workers' Compensation and Rehabilitation Act 2003 which limits the right to appeal against a final decision to "a party aggrieved by the Industrial Magistrate's decision". I am prepared to accept that if Q-COMP had appealed against the decision of the Industrial Magistrate, this Court would have had a discretion to permit Bundaberg Health Service District, Queensland Health to be heard. The discretion arises -- 1 of 2 -- 2 from s. 329(b)(v). It is quite another matter to assert that s. 341(2) may be utilised to permit a person, who was heard in the Industrial Magistrates Court on an appeal to which that person is not a party, to launch an appeal against the final decision of the Industrial Magistrates Court. I accept that the ratio decidendi of the State of Queensland v Cole (2004) 176 QGIG 153 does not reach the present matter. In that case, the putative Appellant had not sought leave to be heard in the Industrial Magistrates Court and was quite a stranger to the proceedings. But some of the comments in that case, admittedly directed at the relationship between the Industrial Relations Act 1999 and the earlier WorkCover Queensland Act 1996 are entirely apposite. It remains the case that whilst appeals under s. 341(2) of the Industrial Relations Act 1999 and s. 561 of the Workers' Compensation and Rehabilitation Act 2003 are appeals by way of re-hearing, in each case there is a power to admit evidence. The power to admit evidence under the Industrial Relations Act 1999 and the power to admit evidence under the Workers' Compensation and Rehabilitation Act 2003 are not expressed in the same terms. Each section confers a discretion, and the objects of the statutes are not the same. Further, and I think more importantly, the powers available to the Industrial Court in deciding an appeal under s. 561 of the Workers' Compensation and Rehabilitation Act 2003 are not as wide as the powers available in the determining of an appeal under s. 341(2) of the Industrial Relations Act 1999. Materially, on an appeal under s. 561, this Court has no power to remit a matter to be heard and determined according to law. But such an order may be made pursuant to s. 341(2) of the Industrial Relations Act 1999. On general principles, the special provisions of the "other Acts", viz the Workers' Compensation and Rehabilitation Act 2003, which vest in the Queensland Industrial Court jurisdiction additional to that vested by the Industrial Relations Act 1999, should be allowed to prevail. It is both the special Act and the latter Act. Doubtless, one might resolve the inconsistency by denying the availability of relief pursuant to s. 341(2) to the "parties" who have a remedy under s. 561 whilst extending relief under s. 341(2) to persons who are not a "party" and for that reason have no remedy under s. 561. But on such a construction, in a matter such as this, the relief available to a person who is not a party to the proceedings before the Industrial Magistrate is potentially very much more beneficial than the relief available to a party to those proceedings. Such an outcome is bizarre. In my view, a person permitted to be heard in the Industrial Magistrates Court in a matter such as this has no right to appeal against the final decision pursuant to s. 341(2). In fact, the merits of the appeal were fully argued. I have considered dealing with the issues for "completeness". But if this Court should not entertain the appeal, those who participated at first instance should not be burdened with the Court's opinion. I dismiss the Appeal. I reserve all questions as to costs. Dated 8 February 2006 D.R. HALL, President. Released: 8 February 2006 Appearances: Mr A. Horneman-Wren instructed by Minter Ellison, Lawyers, for Bundaberg Health Service District, Queensland Health. Mr M. Horvath instructed by Quinn and Scattini, Lawyers for Gregory Thomas Brugman. Mr A.B. Johnson directly instructed by Q-COMP. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --