Parker v The President of the Industrial Court of Queensland & Q-Comp

SUPREME COURT OF QUEENSLAND

CITATION: Parker v The President of the Industrial Court of Queensland & Q-Comp [2009] QCA 120

PARTIES: RACHEL NICOLE PARKER (applicant/applicant) v THE PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND (first respondent/not a party to the appeal) Q-COMP (second respondent/respondent)

FILE NO/S: Appeal No 11518 of 2008 / SC No 9190 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for Extension of Time/General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 8 May 2009

DELIVERED AT: Brisbane

HEARING DATE: 24 April 2009

JUDGES: Keane and Fraser JJA and White J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application for extension of time granted****Appeal dismissed

CATCHWORDS: ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – GROUNDS FOR CERTIORARI TO QUASH – GENERALLY – EXCESS OR WANT OF JURISDICTION – PARTICULAR MATTERS WHERE NO DEFECT OF JURISDICTION – where applicant alleged the President of the Industrial Court of Queensland failed to exercise jurisdiction by misconstruing s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – whether any alleged error in the construction or application of that section amounted to jurisdictional error / Industrial Relations Act 1999 (Qld), s 349 / Judicial Review Act 1991 (Qld), s 43, s 49 / Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32, s 561 / Bill Williams Pty Ltd v Williams (1972) 126 CLR 146; [1972] HCA 23, cited / Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, cited / Parker v Q-Comp, C/2007/24, 17 July 2007, cited / Parker v The President of the Industrial Court of Queensland & Q-Comp [2008] QSC 175, affirmed / Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2, cited / Q-Comp v Education Queensland [2995] QIC 46; (2005) 179 QGIG 491, cited / Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited / SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43; [2003] FCAFC 129, cited / The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30, cited

COUNSEL: S J Keim SC, with G J Rebetzke, for the applicant / G P Long SC, with S A McLeod, for the respondent

SOLICITORS: Peter Agerholm for the applicant / The Workers' Compensation Regulatory Authority (Q-Comp) for the respondent

1. KEANE JA: On 1 October 2003 Ms Parker lodged an application with WorkCover Queensland ("WorkCover") for workers' compensation. She claimed that a pre-existing mental illness from which she suffered had been aggravated in the course of her employment at Metro Ford as a result of a campaign of verbal abuse by a fellow employee while she was employed by that organisation. This aggravation was said to be a compensable injury under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act").

2. Ms Parker's claim was rejected by WorkCover. WorkCover's decision was upheld by the Industrial Magistrate who held that, by virtue of the operation of s 32(5) of the WCR Act, the aggravation of her mental illness was not a compensable injury. This was said to be because the aggravation occurred in the course of, or arose out of, reasonable management action taken by her employer in relation to her complaints about her abusive co-worker. Ms Parker appealed to the Industrial Court.

3. On 17 July 2007 the President of the Industrial Court of Queensland dismissed Ms Parker's appeal against the decision of the Industrial Magistrate. Ms Parker then sought judicial review of that decision pursuant to s 43(1) of the Judicial Review Act 1991 (Qld) ("the JR Act") on the ground that it was affected by an error of law which went to the jurisdiction of the President of the Industrial Court.

4. The learned primary judge dismissed Ms Parker's application for judicial review. Ms Parker now appeals to this Court contending that the learned primary judge failed to appreciate that the President of the Industrial Court had not applied himself "to the question which the law prescribes".¹ Because the appeal was filed out of time, an order for an extension of time is necessary to enable the appeal to proceed. The extension of time was necessitated by Ms Parker's disability. Whether that extension should be granted is a question which is better considered after a consideration of the arguments agitated on Ms Parker's behalf.

5. The principal submission which is advanced on behalf of Ms Parker is that, because the President of the Industrial Court approached questions of causation otherwise than in conformity with s 32(5) of the WCR Act, he failed to conduct the inquiry required of him on an appeal from the Industrial Magistrate.

6. In order to evaluate the merits of this submission one must begin by setting out the relevant terms of s 32 of the WCR Act. I will then summarise the findings of the Industrial Magistrate and the reasoning of the President of the Industrial Court. I propose then to summarise the reasons of the learned primary judge. I will then address the arguments agitated in this Court by the parties.

Section 32 of the WCR Act

7. The WCR Act establishes the entitlement of employees to recover compensation for injury. Section 32 of the WCR Act provides relevantly as follows:

"Meaning of injury

(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

…

(3) Injury includes the following–

…

(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation–

(i)a personal injury;

(ii)a disease;

(iii)a medical condition if the condition becomes a personal injury or disease because of the aggravation;

…

(4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.

(5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;

(b) the worker’s expectation or perception of reasonable management action being taken against the worker;

(c) action by the Authority or an insurer in connection with the worker’s application for compensation."

The decision of the Industrial Magistrate

8. Ms Parker was employed by Metro Ford as a spray painter for about three months in 2003. Six weeks into her employment she became involved in a verbal altercation with another employee, Mr Burgess, who was the leading hand. She complained to the manager, Mr King, about Mr Burgess' behaviour towards her and towards another employee, Mr Smith.

9. Mr King investigated Ms Parker's complaints. Following that investigation Mr King issued a written warning to Mr Burgess to mend his ways or face demotion or dismissal. Mr Burgess subsequently verbally abused Ms Parker to her face, and continued to engage in bullying behaviour towards her. She informed Mr King of this but asked him to take no further action against Mr Burgess. There was some repetition of this pattern of behaviour, ie of abuse, complaint and request that Mr King take no action. Ultimately, Ms Parker's mental illness degenerated into a psychotic state.

10. The case which was put to the learned Industrial Magistrate was that Ms Parker had suffered an aggravation of her pre-existing mental illness as a result of the workplace bullying by Mr Burgess during her employment at Metro Ford.

11. The Industrial Magistrate accepted that Ms Parker had suffered an aggravation of a pre-existing illness to which her employment at Metro Ford was a significant contributing factor. His Honour found that "the aggravation of [Ms Parker's] psychiatric condition occurred" during the period from 9 July 2003 to 29 August 2003 at which time Mr King had taken action to investigate Ms Parker's complaints about Mr Burgess and Mr Burgess' harassment of Ms Parker continued. His Honour went on to say:

"On [Ms Parker's] version, which I accept, the cause of the investigation on 9 July 2003 was her complaint to King about how Burgess was treating Terry Smith. On her version [Ms Parker] was intimately involved with the events giving rise to the investigation and subsequent management action. After that event the management action only related to [Ms Parker], and how Mr King and Mr Wells listened to and dealt with [Ms Parker's] complaints, and how they supported her.

Therefore, it is clear to me that such management action is connected with [Ms Parker's] employment. The aggravation of the disorder was incidental to the management action taken on [Ms Parker's] complaints, starting with the bullying of Smith. Thus, I am satisfied that the actions of Mr King and Mr Wells in the period 9 July to and including 29 August 2003 was management action within the meaning of the Act, and that the aggravation of the disorder was in the course of the management action.

The next question was whether the management action was reasonable.

In [WorkCover and Keel] President Hall said there seemed to be no reason why reasonable in the section should not be treated as reasonable in all the circumstances of the case, and I adopt his words.

The use of the word 'reasonable' indicates that an objective test is to be applied to the management action. Given that there were concerns about Burgess, and that Mr King had witnessed the end of the parking bay dispute on 9 July, it was perfectly appropriate for him to conduct an investigation into what was occurring at the workplace as regards Mr Burgess.

He conducted a thorough investigation in which he interviewed the staff and documented their complaints in his diary. He afforded procedural fairness to Burgess by putting the allegations to him, and allowing him an opportunity to respond. He reprimanded Burgess by a formal written reprimand, and it carried the threat of demotion or dismissal.

Mr King listened to and supported [Ms Parker], and ensured that she was aware that he would act further if she required it. Mr King was somewhat hamstrung in what he could do to manage the situation by [Ms Parker's] request that he not take further action.

I find that Mr King not taking further action was reasonable in the circumstances where [Ms Parker] specifically requested him not to act. He treated her with dignity and respect, and that is what a worker can demand.

In any event, the management action does not have to be perfect. It merely has to be reasonable, and this encompasses the notion that there may be blemishes in the management action."

The decision of the President of the Industrial Court

12. Ms Parker's right of appeal to the Industrial Court from the decision of the Industrial Magistrate was conferred by s 561(1) of the WCR Act, which provides relevantly that "[a] party aggrieved by the industrial magistrate's … decision may appeal to the industrial court." Under s 561(4) of the WCR Act, the decision of the Industrial Court on such an appeal is "final".

13. On the appeal to the President of the Industrial Court, no attempt was made to challenge the factual finding on which the Industrial Magistrate proceeded to the effect that the aggravation of Ms Parker's mental illness occurred over the period of her employment with Metro Ford. The President of the Industrial Court held that "the Industrial Magistrate was correct to take the view that there was one continuum of management action over the period" between the first of Mr Burgess' acts of verbal abuse of Ms Parker and her departure from her employment.² On the appeal to this Court, this view was criticised by those appearing on behalf of Ms Parker who argued that the relevant management action occurred in "spurts". It was not entirely clear, however, that it was disputed that the decision to refrain from further attempts to discipline Mr Burgess as Ms Parker had requested when his bullying behaviour continued was management action for the purposes of s 32(5) of the WCR Act.

14. The President of the Industrial Court explained his understanding of the operation of s 32(5) of the WCR Act. His Honour said:³

"To begin with, particularly since the substitution of 'or' for 'and', the cases have proceeded on the view that workers' compensation legislation is beneficial legislation. To the extent that the Workers' Compensation and Rehabilitation Act 2003 provides benefits (not otherwise available) to workers who suffer work-related injuries, it seems to me that the statutory scheme is still properly to be characterised as beneficial, compare Q-COMP v Education Queensland (2005) 179 QGIG 491 at 492 and the cases there cited. Indeed, the objects of the Act at Chapter 1, Part 2, which by s. 4(2) are an aid to interpretation of the Act, so proclaim. However, by s. 5(4) it is also proclaimed that the scheme is to maintain a balance between providing fair and appropriate benefits for injured workers and ensuring reasonable premium levels for employers. On its face s. 32(5), which is an exclusionary provision, is part of that scheme. Because of the use of the word 'despite' at s. 32(5), where s. 32(1) 'ropes in' a psychiatric or psychological condition and s. 32(5) excludes the same psychiatric or psychological condition, the inconsistency is resolved by allowing s. 32(5) to prevail, compare Q-COMP v Education Queensland (2005) 179 QGIG 491 at 492. It is not legitimate to distort the balancing of competing community interests which the modification of s. 32(1) by s. 32(5) is intended to achieve - and the Explanatory Note to the Bill which introduced the forerunner of s. 32(5) showing an explicit intention to balance is reproduced in Q-COMP v Education Queensland, ibid, at 592 - by limiting the scope of the expression 'in the course of' or for that matter the expression 'arising out of' in order to maximise the reach of s. 32(1)."

15. One may pause here to observe that if the approach to the operation of s 32(5) of the WCR Act taken in Q-Comp v Education Queensland referred to in this passage was thought not to reflect the true intention of the legislature, the legislature has had ample opportunity to correct the position.

16. The President of the Industrial Court then stated what Ms Parker's counsel in this Court described as the central error in his Honour's decision:⁴

"It is neither necessary nor desirable to enter upon an exhaustive analysis of the connection with 'reasonable management action reasonably taken' that 'in the course of' requires. It is sufficient to acknowledge that a psychiatric or psychological disorder which is causally traceable to the 'reasonable management action reasonably taken' is excluded by s. 32(5)."

17. The President of the Industrial Court then adverted to an argument advanced on behalf of Ms Parker to the effect that Mr Burgess' misconduct towards Ms Parker took the case out of s 32(5) of the WCR Act. His Honour said:⁵

"It is then contended that any [chain] of causation was broken by the independent action of Mr Burgess. I quite accept that at common law there is a normative aspect to causation. However, an intentional act even of the person wronged will not necessarily break the chain of causation. The intentional act may be part of the chain, see Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 10 per Deane, Dawson, Toohey and Gaudron JJ and Holdlen Pty Ltd v Walsh [2000] NSWCA para 35 per Giles JA with whom Meagher and Heydon JJA agreed. It is impossible to accept a view of s. 32 which permits [Ms Parker] to rely upon the bullying and harassment by Mr Burgess to connect the aggravation of the underlying condition with [Ms Parker's] employment for the purposes of s. 32(1) and (2), whilst concluding that for the purposes of s. 32(5) the same bullying and harassment ruptured the chain of causation between the 'reasonable management action reasonably taken' and the aggravation of the underlying condition. [Ms Parker's] submission that there is a distinction between using the bullying and the harassment to link the aggravation of the condition with the employment, and using the bullying and harassment to link the 'reasonable management action reasonably taken' to the aggravation of the condition, can be correct only if the submission (previously rejected) be accepted that the complaint, investigation and warning of 9 July 2003 did not form part of the 'management action'.

I am not persuaded that the Industrial Magistrate erred. It is unnecessary to deal with the Respondent's submission that not only did the aggravation occur 'in the course of the employment', the aggravation 'arose out of' the employment. I am content to say that giving 'arise' the perfectly normal meaning of 'spring from', the submission has much to commend it."

The reasons of the learned primary judge

18. The learned primary judge proceeded on the footing that s 349(2) of the Industrial Relations Act 1999 (Qld) ("the IR Act") immunised the decision of the President of the Industrial Court from judicial review by the Supreme Court unless the decision was affected by jurisdictional error.⁶ It was common ground between the parties that her Honour was correct to proceed in this way.

19. As to what is involved in "jurisdictional error", her Honour said:⁷

"… it is therefore important to distinguish between jurisdictional errors and demonstrable errors of law which are committed within jurisdiction. The difference between the two errors was discussed in the recent New South Wales Court of Appeal decision of Rockdale Beef Pty Ltd v The Industrial Relations Commission New South Wales & Anor ([2007] NSWCA 128 at [85]. See full discussion of the nature of jurisdictional error at [80]-[86]) where Basten JA stated:

'Each of the errors identified by the claimant is identified as an error of law. However, it is clear that that is not, of itself, sufficient. The error must amount to a decision beyond jurisdiction or, perhaps, a constructive failure to exercise the jurisdiction conferred on the Industrial Court. The flavour of the distinction can be understood by reference to the explanation given by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420:

'I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction ….. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply 'a wrong and inadmissible test': … or to 'misconceive its duty', or 'not to apply itself to the question which the law prescribes': The King v War Pensions Entitlement Appeal Tribunal [Ex parte Bott] (1933) 50 CLR 228 at 242-3]; or 'to misunderstand the nature of the opinion which it is to form': The King v Connell [(1944) 69 CLR 407 at 432], in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law … .''"

20. The principal submission made on Ms Parker's behalf to the learned primary judge was that the construction of s 32(5) of the WCR Act adopted by the President of the Industrial Court was erroneous in that it failed to reflect the intention of the legislature that innocent victims of workplace bullying should not be excluded by s 32(5) from the benefits conferred by the WCR Act. In particular, it was said that the Industrial Court had failed to appreciate that the causal connection contemplated by the expression "arising out of" employment in s 32(5) would not be sufficiently established by the indirect or remote causal connection sufficient to bring an injury within s 32(1) of the WCR Act. It was also argued that the President of the Industrial Court took an unduly narrow view of his function by erroneously assuming that the expression "in the course of … reasonable management action" in s 32(5)(a) did not signify a merely incidental temporal connection between management action and the relevant psychiatric or psychological disorder.

21. The learned primary judge held that, even if the President of the Industrial Court had misconstrued the scope of the exclusion in s 32(5) of the WCR Act, such an error was one within jurisdiction. Her Honour said:⁸

"Some of the arguments raised on behalf of [Ms Parker] have considerable force. However, it is clear that this application is not an appeal from the decision of [the President of the Industrial Court of Queensland ("the President")]. A consideration of this application does not involve a ‘merits review’ of [the President's] decision. This application involves a determination as to whether the decision of [the President] is infected with ‘jurisdictional error’. Without embarking on an examination of the question as to whether [the President] was actually in error in any respect, it is clear that an error of law by [the President] is not sufficient to found jurisdictional error. As Jordan CJ indicated in Ex parte Hebburn Ltd; Re Kearsley Shire Council ((1947) 47 SR (NSW) 416, 420), '…there are mistakes and mistakes.'

In order to be successful in the current application, [Ms Parker] needs to establish that [the President] must have misunderstood the nature of his jurisdiction, applied a wrong or inadequate test, misconceived his duty, not applied himself to the question which the law prescribes, or misunderstood the nature of the opinion which he was to form. It is clearly established that in examining that question it is not appropriate to embark upon an examination of the correctness of the decision because the question of the correctness or incorrectness of the decision is not the question which needs to be determined (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; R v War Pensions Entitlement Appeal Tribunal and Anor; Ex Parte Bott (1933) 50 CLR 228). It is not a question as to whether this Court would come to a different view as to the interpretation of s 32. As Basten JA in Rockdale Beef stated (Rockdale Beef Pty Ltd v The Industrial Relations Commission New South Wales & Anor [2007] NSWCA 128, [80]):

'However, the central purpose of the supervisory jurisdiction of a superior court is to police the boundaries of powers of inferior courts, tribunals and other bodies. Similar imprecise concepts limit judicial review of administrative action, requiring the court to eschew review of a decision on its merits and limit its role to ensuring that the law prescribing the limits and governing the exercise of power have not been exceeded: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37 (Brennan J); see also Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [13]…'

Basten JA went on to further examine the concept of jurisdictional error and referred to the decision in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs and said ((2003) 199 ALR 43, [27]):

'The statement that a particular error is a ‘jurisdictional error’ is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void: Plaintiff S157[/2002 v The Commonwealth (2003) 211 CLR 476] at [79] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker’s lawful authority or it is not. If it falls within the decision maker’s lawful authority then the error is made ‘within jurisdiction’. If it does not fall within the decision maker’s lawful authority then the error is a ‘jurisdictional error’ and as such it cannot be a valid action or decision.'

Because of that fundamental threshold issue I agree with the submissions of counsel for [Q-Comp], that [the President's] approach to the construction of s 32 as outlined above was not such as to amount to jurisdictional error. I consider that [the President] embarked upon an analysis of the meaning of the section in an entirely orthodox manner by looking at the clear language of the statute. In particular, [the President] indicated that the scope of the section was to be determined by reference to the language used in the section and by the ordinary meaning of the phrase 'arising out of or in the course of' in relation to the concept of reasonable management action taken in a reasonable way. I do not consider that he restricted himself in the manner submitted by [Ms Parker]. I do not consider that the approach that he took was such as to found jurisdictional error. I consider that [Ms Parker's] submissions in this regard are, in essence, submissions about the correctness of the decision, rather than the existence of the jurisdiction of [the President]. Whilst I may have come to a different decision, I am not satisfied that the approach [the President] took is sufficient to establish a 'constructive failure of jurisdiction' as submitted by [Ms Parker]."

22. The learned primary judge went on to identify further difficulties in the argument advanced for Ms Parker. Her Honour said:⁹

"[The President's] role was to review the finding of the Industrial Magistrate that [Ms Parker] had not satisfied the onus of proof in establishing that the reasonable management exclusion in that section did not apply, or that [Ms Parker's] condition arose from unreasonable management action.

In embarking on this role, [the President] was essentially undertaking a review of the factual findings of the Industrial Magistrate. One of the factual findings of the Magistrate was that, whilst he did not consider that the making of the complaints by [Ms Parker], nor the investigation by King about those complaints caused [Ms Parker] any anxiety or stress, he considered that '…those events are inextricably linked with all that subsequently happened.' In particular, the Industrial Magistrate found that it was the investigation and the formal warning to Burgess by Smith that caused Burgess to retaliate to [Ms Parker]. In reviewing those and other factual findings, including the short period of time over which the incidents occurred, [the President] concurred that there was one continuum of management action between 9 July and 26 August 2003. A further relevant fact was that [Ms Parker] asked King not to take any further action steps although he did continue to check how she was going. It is clear that the management action had not been taken against [Ms Parker] directly.

In undertaking this exercise of reviewing the Industrial Magistrate’s decision, [the President] was determining whether the Industrial Magistrate had correctly applied the appropriate test and had viewed the facts correctly. In particular, in reviewing the words 'in the course of' management action, [the President] recognised that applying those words to a concept of management action may require a different conceptual approach than applying it to 'in the course of employment', as was contended by [Ms Parker]. [The President] concluded that he did not need to undertake an exhaustive analysis or decide the issue because, from a factual point of view, what had occurred in this case was that the Industrial Magistrate had found that the injury was causally traceable to the reasonable management action reasonably taken, whether it could be described as 'arising out of' or 'in the course of.'

The way in which [the President] conducted the appeal before him was to review the facts and apply the law as he found it and as he had previously applied the law within that jurisdiction. Such an approach does not amount to jurisdictional error."

23. A further argument was put to the learned primary judge on Ms Parker's behalf. Her Honour summarised the argument, and rejected it, in the following passage:¹⁰

"The third ground is that [the President] restricted the exercise of his function by conflating management action and employment, and thereby failed to realise that actions of a co-employee comprising harassment and bullying could constitute part of the employment matrix for the purposes of s 32(1) of the WCR Act, but perform a different role in respect of management action, namely, by breaking the causal relationship between certain management action and certain subsequent injury to a worker.

I agree with the submissions of counsel for [Q-Comp], that [the President's] reasons about which the complaint is made are a response to arguments put to him by [Ms Parker] and as they were incidental to his conclusion they are in fact obiter dicta and do not, therefore, amount to jurisdictional error."

24. The learned primary judge concluded:¹¹

"The provisions of the WCR Act and the IR Act make it clear that the decision of the Industrial Court is final and there is no further right of appeal unless it can be established that the decision is affected by jurisdictional error. If such error is established, the Supreme Court retains the power to correct the error by way of judicial review. However, for the reasons set out above I am not satisfied that there has been jurisdictional error on the part of [the President] in the making of the decision on the appeal from the Industrial Magistrate. [The President] heard the appeal he was asked to hear and he applied the law as he had previously applied it within that jurisdiction to the facts as he found them. The error which has been asserted by [Ms Parker] goes to the substance of the decision rather than jurisdictional error. In the present circumstances, therefore, the relief sought by [Ms Parker] by way of prerogative writs is not available. As Mullins J stated in Squires v President of the Industrial Court of Queensland & Ors ([2002] QSC 272, [32])

'The express provisions of ss 349(2) and (3) of the IRA therefore have the effect of excluding this Court’s jurisdiction in granting prerogative relief in respect of the decision of [the President], if it was made within jurisdiction.'"

25. I have set out at length the passages cited from the reasons of the learned primary judge because they offer a comprehensive and, in my respectful opinion, correct response to the arguments agitated on behalf of Ms Parker.

The arguments in this Court

26. The argument advanced in this Court on behalf of Ms Parker is that the learned primary judge erred in failing to conclude that the President of the Industrial Court had failed to exercise his jurisdiction because he misconstrued s 32(5) of the WCR Act. As a result of that misconstruction, so it is said, the President of the Industrial Court failed to address the Industrial Magistrate's mischaracterisation of "reasonable management action" as a six week activity and the question of whether the bullying of a co-worker amounted to a novus actus breaking the causal relationship between the reprimand of the co-worker and the aggravation of Ms Parker's psychiatric condition.

27. It is argued in the written submissions made on Ms Parker's behalf that s 32(5) of the WCR Act must be construed in a way which recognises that:

"[i]t is clearly not the case that all psychiatric injury is intended to be excluded from the otherwise no fault universal workers' compensation scheme … an investigation into allegations against a particular employee may be seen to span the length of the investigation in respect of that employee but only be management action in connection with another employee's employment while that person is actually answering questions as part of the investigation."

28. On Ms Parker's behalf it is argued that the President of the Industrial Court erred in regarding the fact that her disorder was found to be "causally traceable to the 'reasonable management action reasonably taken'" as sufficient to bring her injury within s 32(5) of the WCR Act. It is argued that this erroneous misunderstanding of the true operation of s 32 meant that the President of the Industrial Court failed to exercise the jurisdiction conferred upon him.

29. On behalf of the respondent, Q-Comp, it is submitted that the function of the President of the Industrial Court was to determine whether the decision of the Industrial Magistrate was affected by error. In concluding that question in the negative, the President of the Industrial Court was acting within jurisdiction. That is said to be so:

"whatever construction might be put on the concept of 'arising in the course of reasonable management action taken in a reasonable way by the employer in connection with the worker's employment', a finding of such a causal nexus was sufficient for the condition to be excluded by s 32(5). Such a conclusion is essentially one as to fact as opposed to a conclusion as to the extent or degree of connection or nexus required, which is essentially one of law."

30. It was also submitted on behalf of Q-Comp that the arguments put on behalf of Ms Parker fail to recognise that:

"the factual conclusion … that reasonable management action that was reasonably taken was causally related to the development of her psychological or psychiatric condition (whether properly described as one continuum or not) and that this management action extended to and included Mr King's management of the complaints/reports of [Ms Parker] as to the harassment of her."

Discussion

31. I turn now to discuss these arguments

Jurisdictional error?

32. As Hayne J said in Re Refugee Review Tribunal; Ex parte Aala,¹² the line between "jurisdictional error" and error within jurisdiction is often difficult to discern. The abstract notion of jurisdictional error affords little assistance in the determination of the question of statutory construction involved in determining whether error goes to jurisdiction. That is because "jurisdictional error" is the expression of a conclusion rather than an explanation of the process of reasoning whereby that conclusion is to be reached.¹³ The task of any court in seeking to discern where the line has been drawn by the legislature in any particular case is essentially one of statutory interpretation. In this case it is not said that there has been a failure to accord the parties procedural fairness, or a failure to observe an express statutory command as to the exercise of the Industrial Court's function on such an appeal.

33. Jurisdiction to resolve the controversy between the parties which came before the President of the Industrial Court was conferred by s 248 of the Industrial Relations Act 1999 (Qld) and s 561 of the WCR Act. Section 248(1) of the Industrial Relations Act provides relevantly that the Industrial Court "may … perform all functions and exercise all powers prescribed for the court by this or another Act".

34. Accordingly, the task of statutory interpretation, so far as the scope of the jurisdiction of the Industrial Court on appeal from the Industrial Magistrate is concerned, depends upon the construction of s 561 of the WCR Act. On the face of s 561 of the WCR Act, the Industrial Court has jurisdiction to hear and determine appeals from decisions of the Industrial Magistrate.

35. If there is a duly constituted appeal from an Industrial Magistrate, then the Industrial Court has jurisdiction to hear and determine that matter. The exercise of the jurisdiction of the Industrial Court to determine appeals from an Industrial Magistrate must inevitably involve the interpretation of the substantive provisions of legislation which give rise to the controversy between the parties. There is nothing in s 561 of the WCR Act which offers even the faintest support for the idea that the determination of the proper construction of substantive provisions of the WCR Act such as s 32(1) and (5) is not an issue committed to the jurisdiction of the Industrial Court. Indeed, s 561(4) of the WCR Act strongly suggests that the contrary is the case.

36. In this Court Ms Parker's counsel sought to rely upon the following observations of the High Court in Craig v South Australia:¹⁴

"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern (See, eg, R v Dunphy; Ex parte Maynes (1978) 139 CLR 482; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132)."

37. It is, I think, with respect, clear from this passage that an error of statutory construction by a decision-maker will constitute jurisdictional error on the part of the decision-maker only where the error goes to "a pre-condition of the existence of … authority to make an order or decision in the circumstances of the particular case." Even if that proposition is not abundantly clear from the passage cited above, it is made clear in relation to the position of a court, such as the Industrial Court, by the following further observations in Craig's Case:¹⁵

"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."

38. A misinterpretation of s 32(1) or s 32(5) of the WCR Act cannot be regarded as an error apt to deprive the President of the Industrial Court of the authority to determine the appeal which came before his Honour. In my respectful opinion, the argument made in this Court on Ms Parker's behalf is a gallant, but nonetheless unsuccessful, attempt to dress up, as an issue of law going to jurisdiction, a dispute about the conclusions which should follow from the application of s 32(1) and (5) of the WCR Act to the evidence before the Industrial Magistrate as to the temporal and causal connections between Ms Parker's employment, including the management action taken in the course thereof, and the aggravation of Ms Parker's mental illness.

Error?

39. What I have said is sufficient to dispose of the appeal; but as it happens, I do not consider that it is at all clear that the Industrial Magistrate erred in his application of s 32(1) and (5) of the WCR Act to the facts of the case as they were found by him.

40. As a matter of the proper construction of s 32(1) and s 32(5) of the WCR Act, where s 32(5) applies, an injury, which would otherwise be compensable under s 32(1), is excluded from the operation of the Act. The introductory words of s 32(5), namely "Despite subsection (1)", clearly indicate a legislative intention that where both provisions apply to the facts of a given injury, the exclusionary effect of s 32(5) trumps the inclusionary effect of s 32(1). That was the interpretation adopted by the Industrial Court in 2005 in Q-Comp v Education Queensland, and, as I have already noted, if that interpretation did not accord with the intention of the Parliament, the Parliament has had ample opportunity to correct the position.

41. It may be accepted that the focus of the exclusionary provision is narrower than the inclusionary provision of s 32(1) so far as the connection between injury and employment is concerned. It is certainly arguable that the requirement in s 32(5) of a temporal or causal connection between the injury and the management of the employment of the injured employee may not be satisfied where the management decisions are related only to the employment of another employee. It is hardly to be supposed, for example, that an employee injured as the result of an assault by a fellow employee outraged over a refusal of a promotion was intended by the legislature to be denied worker's compensation.¹⁶ That having been said, it is far from apparent to me that in this case the Industrial Magistrate took a contrary view.

42. Whether, in any given case, the aggravation of a psychiatric condition of an employee as a result of the actions of a delinquent employee is a consequence of reasonable management of the employment of the injured employee which is distinct from the employment of the delinquent employee must be resolved by reference to the evidence in the case. It is not to be resolved by glossing the statute.

43. In this case, if the aggravation of the mental illness which Ms Parker claimed was a compensable injury was confined to the consequences of Mr Burgess' initial abuse, then the subsequent events were not apt to remove that injury from the scope of the WCR Act. But the Industrial Magistrate was not invited to determine that question.

44. Similarly, if it were the case that the only basis for saying that Ms Parker's injury arose out of, or in the course of, reasonable management action taken by the employer in connection with Ms Parker's employment was that it arose out of or in the course of the disciplining of Mr Burgess and his defiance of that action taken in connection with his employment, then it would be strongly arguable that such a connection was insufficient to engage s 32(5) against Ms Parker. But the case made by Ms Parker before the Industrial Magistrate did not invite or even allow the making of such subtle distinctions.

Conclusion and orders

50. The learned primary judge was correct to refuse Ms Parker's application for judicial review of the decision of the President of the Industrial Court.

51. The grant of the extension of time is warranted because the need for the extension arose because of Ms Parker's disability and because the issues agitated in this Court are of public importance. I would, therefore, grant Ms Parker's application for an extension of time, but dismiss her appeal.

52. Section 49 of the JR Act applies to the appeal in this Court.¹⁸ Having regard to this provision, I would not be disposed to make any orders for costs against Ms Parker bearing in mind Ms Parker's unfortunate circumstances and the circumstance that the proceeding involved the discussion of issues that may affect the public interest.

53. FRASER JA: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with those reasons and with the orders proposed by his Honour.

54. WHITE J: I have read the reasons for judgment of Keane JA and agree with his Honour and the orders which he proposes.

Footnotes

1. Cf The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242. ↩

2. Parker v Q-Comp (2007) 185 QGIG 269 at 270-272. ↩

3. Parker v Q-Comp (2007) 185 QGIG 269 at 272-273. ↩

4. Parker v Q-Comp (2007) 185 QGIG 269 at 273. ↩

5. Parker v Q-Comp (2007) 185 QGIG 269 at 273. ↩

6. Parker v The President of the Industrial Court of Queensland & Q-Comp [2008] QSC 175 at [15]. ↩

7. [2008] QSC 175 at [18] (citation footnoted in original). ↩

8. [2008] QSC 175 at [33] – [36] (citations footnoted in original). ↩

9. [2008] QSC 175 at [39] – [42]. ↩

10. [2008] QSC 175 at [43] – [44]. ↩

11. [2008] QSC 175 at [45] (citation footnoted in original). ↩

12. (2000) 204 CLR 82 at 141 [163]. ↩

13. SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 at 49 – 50 [27]; (2003) 211 CLR 476 at 489 [21].