Witthahn v DG of Queensland Health; Johnstone v Comm of Police [2021] QCA 282
The Queensland Court of Appeal has held that the Supreme Court’s jurisdiction in respect of statutory grounds of judicial review for non-jurisdictional error under Part 3 of the Judicial Review Act 1991 (Qld) was not diminished or ousted by the conferral of exclusive jurisdiction on the Queensland Industrial Relations Commission in respect of “industrial matters”.
The relevant administrative decisions imposed conditions on the employment of State workers, being directions in respect of vaccine requirements for police officers and health workers. The State argued any controversy over the lawfulness of the directions fell within the exclusive jurisdiction of the Commission.
Sofronoff P held first that “whatever might be encompassed within the Commission’s exclusive jurisdiction, the present claim under the Judicial Review Act does not fall within its domain” (at [30]). His Honour further reasoned that even if the dispute between the parties did fall within the jurisdiction of the Commission, then the effect of section 18 and section 10 of the Judicial Review Act was to confer jurisdiction upon the Supreme Court to determine the dispute notwithstanding the exclusive jurisdiction of the Commission (at [31]-[32]).
That was made clear, Sofronoff P observed, by the Schedules to the Judicial Review Act by which (in similar terms to the Commonwealth AD(JR) Act) the legislature had made express provision for decisions to which the Act would not apply, and decisions in respect of which reasons would not be required even though the Act applied (at [48], [50], [52], [53]).
Morrison JA agreed, and McMurdo JA also agreeing added that the consequence of the primary judge’s decision as supported by the respondents on appeal “would not be the transfer of part of the court’s jurisdiction to the commission, but simply the loss of that jurisdiction” by the Supreme Court (at [67]).
Philip Santucci (led by C S Ward SC) appeared for the successful appellants.
