Dalrymple Bay Coal Terminal Pty Ltd v WorkCover Queensland [2000] ICQ 1 (2000) 163 QGIG 82

82 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 February, 2000 INDUSTRIAL COURT OF QUEENSLAND Workcover Queensland Act 1996 – s. 518 – appeal from decision of industrial magistrate Dalrymple Bay Coal Terminal Pty Ltd v WorkCover Queensland (No. C1 of 2000) PRESIDENT HALL 31 January 2000 REPORT ON DECISION (as edited) In giving his decision from the Bench on 28 January 2000, President Hall stated:– “This is an appeal from a decision of the Acting Industrial Magistrate, Mackay, given on the 24 th day of November, 1999. There has been some argument as to whether the appeal is under section 341 of the Industrial Relations Act 1999 or section 518 of the WorkCover (Queensland) Act 1996 in the form that it took prior to 1 July 1999. I entertain a clear view that section 518 is the relevant section. Save on the question of costs, that matter seems to me to be of no particular importance. I am of the view that whether one applies section 518 or section 341, there is no decision. It is not a matter of complaint that the appeal before the Industrial Magistrate is not yet complete. An interlocutory decision can finally determine a matter, and in such a case an appeal will lie. Here it seems to me that nothing has been finally determined. There is absolutely no reason why a further application of the type that was made to the Acting Industrial Magistrate may not be made in the future. Indeed, on the basis of the materials that I have seen today, there is every likelihood that if such an application were to be made, it would be successful. The application that was actually made was that the claimant in the proceedings “be independently assessed by a psychiatrist to be selected by Dalrymple Bay Coal Terminal for the purpose of obtaining a medico-legal report”. It is apparent from a perusal of the transcript that the Acting Industrial Magistrate understood that he was being asked to appoint a psychiatrist with a fresh mind, that is to say a psychiatrist who had not been involved in treating the claimant and who had not previously been involved in assessing the complainant to make an assessment of his condition. The application was not supported by evidence. The solicitor for the claimant was permitted to make submissions. Some criticism of the Acting Industrial Magistrate permitting that solicitor to make submissions has been made. It is, perhaps, surprising that on an application that somebody be examined by a psychiatrist against his will, that person is not allowed to say anything about the matter. But in any event, no objection was taken at the time and, indeed, no objection was taken to what was put from the bar table by the claimant’s solicitor. It was the effect of what was said, that an examination by a psychiatrist who came to the matter with a fresh mind had already occurred, and although the report of that psychiatrist was available on request to the appellant, it had not, to that time, been requested or perused. The Acting Industrial Magistrate indicated that he was not disposed to grant the request and that the existing assessment by the independent psychiatrist would suffice. In those circumstances, the appellant’s town agent indicated that he did not have specific instructions which enabled him to take the matter further, but argued that it was reasonable in the circumstances that “the applicant have an opportunity to obtain its own medical report through an independent psychiatrist”. The Acting Industrial Magistrate went ahead to refuse the application for an examination by a psychiatrist nominated by the appellant. It seems to me that it is not surprising that he took that course on the material and argument before him. It may be accepted that if the argument that was put today had been put to the Acting Industrial Magistrate a different outcome might have flowed. But the appeal under section 518 is an appeal by way of rehearing on the evidence in the proceedings before the Acting Industrial Magistrate, unless the Court orders additional evidence be heard. There is no basis here to order that additional evidence be heard and, indeed, such evidence is not presently available. Assessing the matter on the basis of the evidence in the proceedings before the Acting Industrial Magistrate, I rather think that the Acting Industrial Magistrate was correct. Whether one follows the decision in Warren v Coombes (1979) 142 CLR 531 or the decision in House v The King (1936) 55 CLR 499, there is no basis for setting aside his decision. That takes me to the matter of costs. It seems to me to be unavoidable that costs will be awarded against the appellant. By section 518 (4) costs of the appeal are in the Court’s discretion. Nothing that has been advanced would justify departure from the normal rule that costs follow the event. I have considered whether the conduct of the respondent led the appellant to believe that the matter of costs was to be dealt with under section 335 of the Industrial Relations Act 1999. It seems to me that when one examines the outline of submissions of the respondent, it is apparent that costs are being sought and that the reasons advanced for the granting of costs are foreign to section 335. In those circumstances, I am not satisfied that there has been any misleading. I order that the appellant pay the respondent’s costs of and incidental to the appeal, and that those costs be assessed as if this matter had been a Supreme Court matter. I adjourn the Court.”. Dated this thirty-first day of January, 2000. By the Commission, [L.S.] E. EWALD, Industrial Registrar. Appearances:– Mr J.G. Wells of Allen Allen and Hemsley for the appellant. Mr P.H. Major, instructed by WorkCover Queensland, for the respondent. Released: 1 February 2000 ########################################################################################################################## -- 1 of 1 --