BP Refinery (Bulwer Island) Ltd (Appellant) v Bloor & Anor [2003] ICQ 11 (2003) 172 QGIG 1844

1844 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 2003 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – S. 509 – appeal against decision of industrial magistrate BP Refinery (Bulwer Island) Ltd (Appellant) AND Christopher Alan Bloor (First Respondent) AND WorkCover Queensland (Second Respondent) (No. C10 of 2003) PRESIDENT HALL 7 April 2003 DECISION On 16 March 2000 Christopher Alan Bloor applied for compensation under the WorkCover Queensland Act 1996. On 18 August 2000 WorkCover rejected the claim. On 2 October 2000 Mr Bloor sought statutory review of the rejection. On 27 February 2001 the Statutory Review Unit overturned WorkCover’s decision and accepted Mr Bloor’s claim. On 27 March 2001 BP Refinery (Bulwer Island) Ltd, which corporation was at all material times -- 1 of 3 -- 24 April, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1845 Mr Bloor’s employer, filed an appeal to the Industrial Magistrate’s Court. In or about late May 2001 Ms Moroney, a review officer of the Review Unit Q-Comp, informed Mr Bloor of his right to seek leave to be heard in the appeal. A first direction’s hearing in the Industrial Magistrate’s Court occurred on 17 July 2001. Mr Bloor was present, observed the proceedings without participating in them, and ought (as a reasonable man) to be treated as having heard the directions issued orally in the Court. On 18 July 2001 the member of the bar who had been instructed to appear for Q-Comp spoke to Mr Bloor and informed him – (i) that he represented Q-Comp’s interests, which might or might not coincide with the interests of Mr Bloor; (ii) that he could not and would not take instructions or directions from Mr Bloor; (iii) that Q-Comp had conduct of the matter not Mr Bloor, and that Mr Bloor should consider retaining his own solicitors to look after his interests. On 23 October 2001 Q-Comp’s barrister (in the presence of Ms Moroney) confirmed that advice to Mr Bloor. On 19 July 2002 Q-Comp contacted Mr Bloor and advised him that Q-Comp intended to concede the appeal and that the effect of the concession would be that Q-Comp’s decision would be set aside. On 6 August 2002 BP Refinery (Bulwer Island) Ltd and WorkCover signed a consent order disposing of the appeal. The matter was listed for mention in the Magistrates Court on 7 August 2002 in order that a consent order might be made. On the mention the solicitors representing Mr Bloor appeared and made an oral application for an adjournment in order that Mr Bloor might make application for leave to be heard. The application for an adjournment was granted. On 20 September 2002 Mr Bloor’s application for leave to be heard came before the Industrial Magistrate. (The application seems (initially) to have been made pursuant to s. 498(2) which, of course, had no application to the pre 1 July 2001 injury. It is common ground that the power to grant Mr Bloor leave to be heard (not to be a party) arose under s. 320 of the Industrial Relations Act 1999). The Industrial Magistrate granted Mr Bloor’s application and issued the following directions: “1. The respondents disclose to Christopher Alan Bloor within 21 days all information and documents pertaining to Christopher Alan Bloor’s claim in reliance of which the review decision dated 27 February 2001 was made including but not limited to the documents which constitute – (a) the explanations and examples referred to in the last paragraph on page 3 of the decision; (b) the detailed information provided by Mr Bloor referred to in the last paragraph on page 5 of the decision; and (c) the medical reports referred to in the decision. 2. That Christopher Alan Bloor by his legal representatives inspect the documents produced under order 1 within 14 days of access being made available by the respondents; 3. That Christopher Alan Bloor file a statement of issues by 3 January 2003; 4. The respondents each file a reply to the statements of issues by 7 February 2003; 5. The parties confer to agree on matters that can be agreed upon by 12 February 2003; 6. There be a further mention of this matter on 19 February; 7. There be liberty to the parties to apply; 8. Costs to be reserved.”. The directions issued by the Industrial Magistrate are not the subject of direct attack. However, it is said that they demonstrate that the Industrial Magistrate fundamentally misunderstood the nature of the proceedings before the Court and dealt with Mr Bloor’s application as the Industrial Magistrate’s Court should deal with an application to be heard made at the commencement of a trial on the merits, whereas because of the settlement the Industrial Magistrate’s Court was concerned only with whether the compromise had been “bona fide and truly made”. It seems to me, with respect, that the Industrial Magistrate made no such error. The decision of the Statutory Review Unit had affected Mr Bloor’s entitlement to benefits under the WorkCover Queensland Act 1996. Assuming (without deciding) that s. 24AA of the Acts Interpretation Act 1954 arms the Statutory Review Unit with power to revoke a decision of the Unit, in the absence of fraud or misrepresentation it might not be rescinded or varied by Q-Comp without the consent of Mr Bloor and of BP Refinery (Bulwer Island) Ltd, compare Campbell E, Revocation and Variation of Administrative Decisions (1996) 22 Monash University Law Review 30 at 53 adopted by Chesterman J in Firearms Distributors Pty Ltd v. Carson (Director Administration Division, Queensland Police Service) [2000] QSC 159 at para [40]. The decision of the Statutory Review Unit might of course be set aside by a decision of the Industrial Magistrate, see s. 506 (previously s. 515) of the WorkCover Queensland Act 1996. That is a why a consent order is being sought. But the Industrial Magistrate had an independent judgment to make in determining to set aside the decision of the Statutory Review Unit. A Court will not genuflect to a compromise “bona fide and truly made” if the compromise is not within the power of the parties, compare Dixon v. Evans (1872) LR5HL 606 at 618 to 619 per Lord Westbury. Here, the Industrial Magistrate has done no more than allow Mr Bloor to be heard upon the question whether Her Worship should give effect to the compromise. While some of the documents to be provided to Mr Bloor are documents which would inevitably relate to the matters in issue on a trial on the merits, they are also documents which relate to the question whether the Industrial Magistrate’s Court should give effect to the compromise. It is then contended that Mr Bloor has no pecuniary interest directly affected by the outcome of the appeal. With respect, the decision of the Statutory Review Unit gave Mr Bloor an entitlement to compensation. If the Industrial Magistrate gives effect to the compromise that entitlement will be taken away from him. It is contended that Mr Bloor has been tardy. I enthusiastically embrace the proposition that the power to grant leave to be heard pursuant to s. 320 is entirely discretionary. Delay by the applicant causing prejudice to the parties to the appeal, or (perhaps) to other litigants in the Court by delaying Court processes, will always be a material consideration. But the Industrial Magistrate recognised that. Her Worship accepted as an explanation for Mr Bloor’s delay that, until advised about the compromise, he was prepared to take the chance that in defending its decision Q-Comp would defend his interests. Notwithstanding that Her Worship recognised that allowing Mr Bloor to be heard might involve the consequence that proceedings could become “repetitious and wieldy (sic)” the Industrial Magistrate was prepared to act on the explanation. Others might not have done so. However, the Industrial Magistrate was involved in a quintessential exercise of discretion. Her Worship has referred to the relevant factors and to no factors which are not relevant. There is no palpable injustice in the decision. The criticisms really go to weighing and the use of measuring casts. A case for interference with the exercise of a discretion which is vested in the Industrial Magistrates Court and not in this Court, has not been made out. -- 2 of 3 -- 1846 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 2003 The (now) appellant entertains some apprehension that the proceedings in the Industrial Magistrates Court will become proceedings in which Mr Bloor (yet again) seeks to ventilate his grievances against the appellant and its servants and agents. The short answer is that s. 320 arms the Industrial Magistrate with ample power to impose conditions upon the grant of leave to be heard or indeed to vacate the order that Mr Bloor be granted leave to be heard, if it be necessary to do so to avoid vexation. I hasten to add that because a substantial issue is whether Mr Bloor’s injury was a result of reasonable management action reasonably taken there may well be some overlap between matters truly relevant to the proceedings and Mr Bloor’s previous grievances. I dismiss the appeal. I remit the matter to the Industrial Magistrate to be heard and determined according to law. Given that the application to appeal does not challenge the directions I decline to vary the directions. Doubtless the directions particularly about discovery and inspection need be a matter of vigorous debate when the matter is mentioned. I reserve the question of costs. Dated 7 April 2003. D.R. HALL, President. Released: 7 April 2003 Appearances: Mr A. Herbert, instructed by Freehills, Solicitors, for the appellant. Ms J. Ryrie, instructed by MacGillivrays Solicitors, for the first respondent. Mr P. Major, directly instructed, for the second respondent. -- 3 of 3 --