Boral CMG Transport v Maddox [2003] ICQ 52 (2003) 174 QGIG 907

14 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 907 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Boral CMG Transport AND Douglas John Maddox (No. C60 of 2003) PRESIDENT HALL 3 November 2003 DECISION Douglas John Maddox was dismissed from his employment with Boral CMG Transport following an incident which occurred on 14 March 2002. He sought relief pursuant to Chapter 3 Part 2 of the Industrial Relations Act 1999. By a decision now reported at 173 QGIG 1040 the Queensland Industrial Relations Commission, constituted by a Commissioner sitting alone, found that the dismissal was harsh, unjust and unreasonable within the meaning of s. 73(1)(a). This is an appeal against that decision. The matter of remedy is yet to be addressed by the Commission. -- 1 of 2 -- 908 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 November, 2003 The appeal is brought pursuant to s. 341(1). Section 341(1) is in some respects an unusual provision. It allows for an appeal on the grounds, and only on the grounds, of error of law or excess, or want, of jurisdiction. Traditionally, the decisions of administrative tribunals have been attacked (by way of prerogative writ) on the ground of excess of jurisdiction, and the decisions of inferior courts (which have power to decide questions of law) taken within jurisdiction but taken erroneously have been appellable on the ground of error of law. However, there can be little doubt that whilst an error of fact is not an error of law, s. 341(1) permits this Court to intervene where it is shown that the Commission has identified a wrong issue, asked itself a wrong question, ignored relevant material, relied on irrelevant material or, at least in some circumstances, reached a mistaken conclusion: see generally Craig v. South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v. Yusuf (2001) 206 CLR 323 at 351 para [82] per McHugh, Gummow and Hayne JJ. Mr Maddox was a truck driver. The incident of 14 March 2002 involved the overturning of a truck as he negotiated a 90 degree corner. The Commission found that the speed at which Mr Maddox was driving the truck was “the most significant contributing factor” to the overturning of the truck. However, the Commissioner also found that the instability of the truck, which was of a type which Mr Maddox had not previously driven, was also a contributing factor to the incident. In light of what the Commission considered were inadequacies in the instruction given to Mr Maddox about the new truck the Commissioner, who followed the decision of Vice President Ross in Stewart v. University of Melbourne (U No. 30073 of 1999, print S. 2535) and split the adjectives “harsh”, “unjust” and “unreasonable”, found that the dismissal was harsh, and that the dismissal was unreasonable, and that the dismissal was unjust. The appellant’s contention is that the (very detailed) findings which the Commission made about the stability of the truck were based on a report of 16 October 2002 by Road User Systems Pty Ltd. The report had been prepared at the request of the manufacturer of the “oscillating turntable” which was said to be the cause of the instability. In having regard to that report the Commission is said to have regard to the “wrong material” and to “irrelevant material”. The short point is that the report, which was based on computer simulation using particular conditions and assumptions, was all about manoeuvres performed in highway conditions at speeds in the range of 90 to 100 kilometres per hour. On the evidence accepted by the Commission, the incident of 14 March occurred at a speed of no more than 54 kilometres per hour. The submission is that the report provides no foundation for any finding about the stability of the truck at such a dramatically lower speed. As a matter of first impression, I was somewhat taken with the submission. The decision of the Commission is a lengthy one. If one examines that which is written at the heading “Conclusions”, one would come to the conclusion that the findings about stability were based on the Report. However, one must read a decision of the Commission as a whole, with a presumption of correctness and with a concern for the decisions which are being recorded rather than with literary style. Reading the decision as a whole, it seems to me that the Commissioner did not simply rehearse all of the evidence before coming to the Commissioner’s conclusions at the heading “Conclusions”. It seems to me that the Commissioner made findings about the evidence as it was recounted. In particular, it seems to me that the Commissioner found: (a) Mr Maddox had driven the same truck with the same load around the same corner at the same speed earlier on the morning of 14 March. There being no suggestion that the road had changed in any way, the inference is that the truck had something to do with it. (b) The Commissioner accepted that on 15 March 2002 the respondent had conducted trials at the location involving a fully loaded vehicle and an empty vehicle. The loaded vehicle had just got around the corner at 30 kilometres per hour whilst the unloaded vehicle had managed the corner with difficulty at 44 kilometres per hour. That evidence went to the stability of loaded and unloaded trucks on that corner at those speeds. A finding that the instability of the truck was a contributing factor in its overturning was open on those findings of primary fact. What was needed to carry the Commission to its ultimate conclusion was evidence that the instability was not peculiar to the intersection. In part such an inference was justified by evidence that the “oscillating turntable”, which was used to connect the trailer to the prime mover, was designed to minimise stressors on the trailer but did that by allowing lateral movement which a fixed turntable would not. The inference is that to some extent the “oscillating turntable” was inherently unstable. The Report took the matter further. The Report was certainly not based on assumptions about speed relevant to the incident of 14 March 2002. But the Report did go to the stability of the truck at high speeds in highway conditions when performing various manoeuvres and compared its stability with that of a prime mover fitted with a fixed turntable. The Commission was entitled to regard the Report as indicating speeds, conditions and manoeuvres whereat the vehicle was much less stable than vehicles with which Mr Maddox was familiar. From that point, it was but a short leap to conclude that the appellant ought to have ascertained the (lower) speeds (if any) at which the stability became a problem and should have informed Mr Maddox. Whilst one may cavil at the conclusions reached by the Commission, they were reasonably open. I cannot, on the broadest view of the decisions to which I have previously referred, conclude that there was any excess of jurisdiction or error of law. I dismiss the appeal. I reserve all questions of costs. Dated 3 November 2003. D.R. HALL, President. Released: 3 November 2003 Appearances: Mr A. Horneman-Wren of counsel, instructed by Australian Industry Group, Industrial Organisation of Employers (Queensland), for the appellant. Mr S.J. Hamlyn-Harris of counsel, instructed by M.A. Kent & Associates, Solicitors, for the respondent. -- 2 of 2 --