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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Brett Reynolds v Workers' Compensation Regulator & Ors  QIRC 140
Workers' Compensation Regulator
Aurizon Operations Limited
WC/2017/6 and WC/2019/20
Application in existing proceedings
19 September 2019
19 July 2019
WORKERS' COMPENSATION – INDUSTRIAL LAW – APPLICATION FOR JOINDER – where Applicant seeks joinder of two appeals – where First and Second Respondents resist the joinder.
Industrial Relations Act 2016 s 539
Industrial Relations (Tribunals) Rules 2011 r 98
Workers Compensation and Rehabilitation Act 2003 s 32, s 549, s 552A
Bishop v Bridgeland Securities (1990) 25 FCR 311
Cameron v McBain  VLR 245
Gambaro v Workers' Compensation Regulator  ICQ 5
Ghose v CX Reinsurance Co Ltd  NSWSC 110
Humphries v Newport Quays Stage 2A Pty Ltd  FCA 699
Seymour v Workers' Compensation Regulator  QIRC 61
Mr R. D. Green of Counsel instructed by Chris Trevor & Associates for the Applicant
Mr S. R. McLeod of Queens Counsel directly instructed by the First Respondent
Mr P. B. O'Neil of Counsel directly instructed by the First Respondent
Mr P. B. Rashleigh instructed by McInnes Wilson Lawyers for the Second Respondent
Reasons for Decision
- This is an application in existing proceedings filed by Mr Brett Reynolds seeking an order for the joinder of two separate appeals against a decision of the Workers' Compensation Regulator made pursuant to s 550 of the Workers Compensation and Rehabilitation Act 2003.
- Mr Reynolds seeks orders that proceedings in WC/2017/6 and WC/2019/20 be joined and that the evidence in one be the evidence in the other.
The Relevant Law
- The Commission may join proceedings under r 98 of the Industrial Relations (Tribunals) Rules 2011 ("IR Rules"). Rule 98 provides as follows:
98 Joining proceedings
- (1)A party to a proceeding before the court or commission may apply to the court or commission for the proceeding to be joined with another proceeding.
- (2)The court or commission may order 2 or more proceedings to be joined if it considers—
- (a)substantially the same question is involved in the proceedings; or
- (b)the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or
- (c)it is otherwise appropriate or desirable.
- It is clear that r 98 of the IR Rules confers a broad and unfettered discretion upon the Commission to order two or more proceedings to be joined and heard together. Assistance in exercising that discretion can be gleaned from the following authorities.
- In Humphries v Newport Quays Stage 2A Pty Ltd Besanko J said:
The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows:
- Are the proceedings broadly of a similar nature?
- Are there issues of fact and law common to each proceeding?
- Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
- Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
- Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
- Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
- Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
- Is one proceeding further advanced in terms of preparation for trial than the others?
- Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?
- Whilst the authorities suggest that a number of factors have been considered relevant in exercising such a discretion, there are no inflexible rules.
- In Cameron v McBain Herring CJ wrote:
The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order.
- In Bishop v Bridgeland Securities, Wilcox J said:
The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.
- In Ghose v CX Reinsurance Co Ltd Austin J said
Although his Lordship speaks of consolidation, in my view the same principles apply where the application is for a joint hearing. His Lordship's observations make it clear that the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court. I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings. that the task of the Court is to 'work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, sequential hearing, entirely separate hearings or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings).
- The first appeal, WC/2017/6, was lodged by Mr Reynolds on 12 January 2017.
- By way of background, Mr Reynolds commenced employment with Aurizon Operations Limited in Mackay in 2009. Mr Reynolds was transferred to work as a Service Delivery Manager at Acacia Ridge in January 2013. In 2014 the Mr Reynolds worked as Acting General Manager for Queensland and in early 2015 he became a project manager. From about 12 June 2015 Mr Reynolds alleges that he was subjected to bullying and harassment from two colleagues, Mr Troy Sparkman and Mr Neil de Silva, culminating in an incident with Mr Sparkman on 11 August 2015 which resulted in Mr Reynolds psychiatrically decompensating. Mr Reynolds has been certified as totally incapacitated for work since 11 August 2015 with his psychiatrist, Dr Jodie Carter, diagnosing his condition as "depression and anxiety resulting from bullying and harassment…."
- The Regulator, through its statement of facts and contentions, submit that Mr Reynolds' psychiatric injury does not arise out of any bullying or harassment and that the injury is either a continuation of a pre-existing psychiatric condition or as a consequence of Post-Traumatic Stress Disorder which has not been accepted as a work-related condition. The Regulator's case is that Mr Reynolds' injury does not arise out of or in the course of his employment.
- The Regulator has accepted that Mr Reynolds was a worker and suffered a personal injury of a psychiatric nature. The central question for determination in appeal WC/2017/6 is whether Mr Reynolds' injury, that being the diagnosis of depression and anxiety, was caused by the alleged bullying and harassment from colleagues. If that question is answered in the affirmative the Commission must determine whether the injury arose out of reasonable management action taken in a reasonable way.
- On 19 February 2018 the parties participated in a s 552A conference.
- On 29 May 2018 the Commission listed the matter for hearing for eight days commencing 15 October 2018.
- On 27 August 2018 Mr Reynolds' solicitors wrote to the Industrial Registry requesting an adjournment of the hearing set down for 15 October 2018. The Regulator did not oppose the adjournment. On 31 August 2018 the Commission adjourned the hearing.
- The second appeal, WC/2019/20, was lodged by Aurizon Operations Limited on 23 January 2019.
- The central facts in the Appeal relate to a separate claim for compensation by Mr Reynolds on the basis that he suffered Post Traumatic Stress Disorder as a result of his attendance at several rail incidents involving fatalities over a period from 26 March 2010 to 30 December 2014. Aurizon, as a self-insurer, investigated and ultimately rejected the claim on the basis there was insufficient evidence to support Mr Reynolds' allegations. Mr Reynolds appealed Aurizon's decision to the Regulator.
- In a decision dated 21 December 2018 the Regulator set aside the decision of Aurizon finding that Mr Reynolds sustained a personal injury "best described as Post Traumatic Stress Disorder". It is that decision that Aurizon now appeals.
- Because the second appeal is in the relatively early stages of preparation for litigation the Regulator is yet to file its statement of facts and contentions. As such, it is not yet known with precision what the Regulator's case is. However, the Regulator's reasons for accepting the claim were expressed as follows:
I conclude on all of the evidence from Mr Reynolds and the witnesses referred to in this review decision that of events occurred involving the exposure of Mr Reynolds to fatalities at collisions between trains and vehicles.
…I prefer the weight of the medical evidence that Mr Reynold's injury is best described as PTSD, rather than major depressive disorder.
in consideration of the weight of medical evidence from Dr Carter and Dr Tucker, I am satisfied Mr Reynolds' injury arose as a direct result of the attendance at train incidents during his employment. As such, I am satisfied that Mr Reynolds employment is the major significant contributing factor.
- Aurizon contend that Mr Reynolds does not suffer from PTSD; that he did not attend the alleged railway incidents said to have caused the PTSD; that any personal injury suffered by Mr Reynolds is in the form of a major depressive disorder for which he has made an application for compensation and which has been rejected; and, in the alternative if Mr Reynolds does suffer PTSD then it did not arise out of or in the course of his employment and employment was not a significant contributing factor to his PTSD.
- It was raised as a preliminary point by Counsel for Mr Reynolds that an agreement was reached between the parties on 14 June 2019 that this application would not be opposed by the Regulator and Aurizon. The background to the "agreement" is the filing of an originating application in the Supreme Court at Rockhampton seeking a declaration as to the date of Mr Reynolds' injury in WC/2019/20. It was during an adjournment of those proceedings that the "agreement" was said to have been reached.
- In the affidavit of Ms Esdale the terms of the agreement were said to be that WC/2017/6 and WC/2019/20 would be heard together in the Commission and that Mr Reynolds would "intervene" in WC/2019/20.
- For present purposes, the draft order annexed to the affidavit of Ms Esdale provides, inter alia:
The Applicant will apply to the QIRC within 10 days for Orders that WC/2017/6 and WC/2019/20 be heard consecutively or alternatively, together, with evidence in one be evidence in the other.
- The application filed on behalf of Mr Reynolds does not fully reflect what was said to have been agreed to between the parties. The suggestion that the matters be heard consecutively does not, for example, form part of the application to the Commission.
- The Regulator submits that no such arrangement was entered into in relation to the proceedings in the Commission but rather the "agreement" merely confirmed that the Respondents would not object to either Mr Reynolds becoming a party in WC/2019/20 or making the present application. Equally, McInnes Wilson, the solicitors for Aurizon in a letter to Ms Esdale of 12 July 2019 emphasised that they did not agree to the matters being heard together in the Commission or Mr Reynolds "intervening" in WC/2019/20. The correspondence makes it clear that Aurizon agreed Mr Reynolds could bring this application but not the relief that he was seeking.
- Irrespective of what might have been agreed between the parties in respect of the proceedings in the Supreme Court, the parties cannot bind the Commission in the proper exercise of its discretion under the IR Act or the Tribunal Rules.
The case for joinder
- Mr Reynolds contends that the following factors indicate that the proceedings should be joined:
- The same employer and other parties are involved in both matters;
- There will be a significant cost saving;
- There will be a significant time saving;
- The possibility of inconsistent findings will be avoided;
- The personal wellbeing and the burden of the hearing process in terms of the fragility of the Applicant is better served;
- There are common questions of fact;
- The impact of findings in one proceeding will likely bear upon the findings in the other proceeding;
- The resources of all parties and the Commission will be better dealt with.
- Mr Reynolds submits that the application has been brought for the purpose of ensuring that the two proceedings are dealt with in a fashion that gives rise to decisions in each matter that are consistent with proper findings in relation to the nature of any injury sustained by Mr Reynolds as well as any relationship between his employment and any such injury particular to each of the proceedings. Further, that there are significant personal issues associated with Mr Reynolds' wellbeing if he is put to the requirements of two separate hearings, not only in terms of his psychological status but also his personal wellbeing.
- Mr Reynolds says it has been some three and half years since the lodgement of his claim against Aurizon in relation to psychological injuries sustained in the course of his employment. In the interim, Mr Reynolds says he has lost his family; he is financially distressed and he remains without social support.
- Counsel for Mr Reynolds submits that the joinder of proceedings will facilitate an expeditious hearing of the matters in a fashion that presents the least risk for Mr Reynolds. In the circumstances, it is submitted, the orders can be made pursuant to r 98(2)(c) of the IR Rules.
- It is further submitted that the Commission is able to grant the orders sought pursuant to r 98(2)(a) and (2)(b) of the IR Rules because some of the medico legal evidence identifies the prospect of identical issues; or, alternatively decisions in one proceeding is likely to determine or seriously impact upon the other proceeding.
The Respondents position
- Counsel for Aurizon, Mr Rashleigh told the Commission that his instructions were that his client would abide the decision of the Commission in respect of the joinder application.
- The Regulator opposes the joinder application and has instructed separate counsel for the appeals. Mr Peter O'Neil appears in WC/2017/6 and Mr Scott McLeod QC appears in WC/219/20.
- Mr McLeod QC submits that there is a "fundamental difficulty" with the application considering the decision of Martin P in Brisbane City Council v Gillow. That case involved a determination whether the Commission has the power to give an employer leave to appear on appeals under Chapter 13 Part 3 of the Workers’ Compensation and Rehabilitation Act 2003. Martin J concluded that the Commission does not have power to grant an employer leave to appear on appeals under Chapter 13 of the WCR Act. Consequently, if the application was granted and Aurizon was to become a party to appeal (WC/2017/6) it is contended that the joinder of the employer would be inconsistent with the reasoning in Gillow.
- In his submissions, Mr O'Neil raises several objections to the application based on both legal and factual grounds. In short, Mr O'Neil submits that the different issues to be determined (including issues of credit), the different onus of proof to be applied, the different factual matrix, the different psychiatric injuries and the different causal mechanisms are all matters which mitigate against making the orders sought.
- It is contended by Counsel for Mr Reynolds that the Commission can rely on s 539 of the IR Act to make an order joining the two appeals. However, Mr O'Neil argues that s 539(c) does not provide a source of power for the orders sought by the Applicant because neither appeal before the Commission involves an "industrial cause". I agree.
- Section 539 of the Act relevantly provides:
539 Powers incidental to exercise of jurisdiction
Except as otherwise provided for by this Act or the rules, the court, commission or registrar may—
(a)at or before a hearing, take steps to find out whether all persons who are to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and
(b) direct, for proceedings—
(i)who the parties to the proceedings are; and
(ii) by whom the parties may be represented; and
(iii)persons to be called to attend the proceedings, if the persons have not been called and it appears the persons should attend the proceedings; and
(iv) parties to be joined or struck out; and
(v) who may be heard and on what conditions; and
(c) hear and decide an industrial cause in the way that appears best suited for the purpose; and
- In Gambaro v Workers' Compensation Regulator, Martin P discussed the definition of "industrial cause" under the IR Act and its applicability to the workers' compensation regime:
At the outset, it should be noted that the Respondent relies on s 541 of the IR Act as one basis for providing the court with the power to dismiss an appeal that is trivial or not in the public interest. The appellant relies on Pritchard v Blackwood. That case concerned the dismissal of an appeal under the predecessor of s 541 – s 331 of the Industrial Relations Act 1999. It also was a case concerning an appeal under the Workers Compensation and Rehabilitation Act 2003. Section 541 (like s 331 of the predecessor Act) applies only to an “industrial cause”, which is defined as an “industrial dispute” or “industrial matter”. No argument was addressed to the applicability of s 541 to workers’ compensation appeals and, in the absence of such submissions, I am not satisfied that I should follow the reasoning in Pritchard. It is well arguable that a claim for workers’ compensation does not fall within this definition and, consequently, the discretion under s 541 is not enlivened. In these circumstances, I will not rely on s 541.
- In Seymour v Workers' Compensation Regulator, I decided that a workers’ compensation appeal is not an industrial cause for the purposes of the IR Act:
In my view, this is not an industrial cause. An industrial cause is defined in schedule 5 of the IR Act, which makes reference back to section 9 of the Act, which defines an industrial matter by reference to schedule 1. Nothing contained within schedule 1, in my mind, assists in bringing a workers' compensation matter within the definition of "industrial cause", "industrial matter" or, for that matter, an "industrial dispute". It is, therefore, not an industrial cause, and, as a consequence, reference to or reliance upon section 541 in these sorts of circumstances is not appropriate. The appellant has failed – apart from attending a conference, and having some communication with the commission – to prosecute this matter.
- It is now accepted that a claim for workers' compensation does not fall within the definition of "industrial cause" and, consequently, the discretion under s 539 is not enlivened. It follows therefore, that the Commissions sole source of power to join proceedings is found under r 98 of the IR Rules.
- I will now apply the "relevant factors" as identified by Besanko J in Humphries.
- I would conclude, based on the material before me, that the two appeal proceedings are separate and distinct matters. Having regard to Factor 1 it might be said that the proceedings share some superficial similarity in that they are both statutory appeals against a decision of the Regulator which involve the same employer and the same injured worker. However, that is where the similarity ends.
- Turning to Factor 2, in considering whether there are issues of fact and law common to each proceeding, I observe that the two appeals involve different time frames; different geographical locations with WC/2019/20 occurring in Central Queensland and WC/2017/6 occurring in Brisbane; different mechanisms of injury; and different psychiatric injuries. The onus of proof is different in each appeal. In WC/2017/6 the onus of proof rests on Mr Reynolds to establish the elements of his claim. In WC/2019/20, Aurizon bears the onus of establishing an error in the Regulator's decision. Moreover, the issue of reasonable management action and the exclusion contained in s 32(5) of the WCR Act has application in appeal WC/2017/6 but does not have application in appeal WC/2019/20.
- Turning to Factor 3, the material before the Commission suggests that other than Mr Reynolds and Mrs Reynolds, there will no commonality of lay witnesses between the two appeals. However, to the extent that the expert medical witnesses will be the same, each expert will be called upon to consider substantially different mechanisms of injury giving rise to two distinct psychiatric injuries.
- Factors 4 and 5, are largely irrelevant to the current facts.
- Counsel for Mr Reynolds submitted that Factor 6 was answered in the affirmative because there would be time saving from joining the appeals as "…all of the issues can be dealt with in the one instance before the Commission". Further, it was contended Factor 7 could be dealt with by way of "appropriate directions" from the Commission. However, the mere fact that matters are joined does not necessarily mean that time would be saved. I am of the view that having regard to the distinct nature of the appeals it would be unlikely that any significant savings could be achieved if the matters were heard together.
- Similarly, if the proceedings are tried at the same time then difficulties are likely to be created in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence. In this regard, the Regulator submits that the different factual matrix; the different mechanisms of injury; the different dates, places and times of the injuries would create a logistical nightmare for the parties and the Commission. The Regulator contends that in appeal WC/2019/20, it will be reliant on Mr Reynolds being found to be a credible witness. By contrast, in WC/2017/6, Mr Reynolds' recollection of events, and the accuracy of the history he has provided the various medical practitioners will be contested by the Regulator.
- Counsel for Mr Reynolds seeks 12 days set aside by the Commission to hear both appeals together. Even if this was an appropriate matter to make an order, it would be well into 2020 before such a substantial block of hearing time could be allocated. A further complicating feature is that the Regulator has different legal representation for each of the appeals as it is submitted it would not be possible for the same counsel to represent the Regulator in both appeals. I also note the submission of Mr McLeod QC that if the application was granted and Aurizon was to become a party in the Applicant's appeal (WC/2017/6) a fundamental error would occur. In my view, the difficulties in terms of trial management and the procedural issues that would arise as a result of the joinder are unlikely to be ameliorated by directions from the Member who has conduct of the matter.
- With respect to Factor 8 it is the case that the two appeals are at dissimilar stages in terms of readiness for trial. Appeal WC/2017/6 was filed in the Industrial Registry on 12 January 2017 and the appeal was listed before Industrial Commissioner Knight on 15 to 19 and 23 to 24 October 2018 but the dates were vacated at the request of the Applicant. The second appeal WC/2019/20 was filed in the Industrial Registry on 23 January 2019. The latter appeal is, as I understand it, at a preliminary stage of preparation, with the Regulator yet to file its statement of facts and contentions. The Regulator submits that a substantial amount of work remains to be undertaken before the matter is ready to proceed for hearing. It is apparent that WC/2017/6 is ready to proceed and can be set down for hearing without undue delay.
- Finally, I turn to Factor 9. The Regulator submits that there are parties in both appeals who will be inconvenienced if the proceedings are tried together. Whilst the nature of the inconvenience has not been fully articulated by the Regulator, it is possible to contemplate that the disparate and discrete nature of the two appeals will potentially involve a number of logistical and, indeed, procedural issues for the parties.
- Having considered the matter I have formed the view that I should not exercise the discretion to join the appeals pursuant to r 98 of the IR Rules. The appeals do not involve substantially the same question; the decision in one proceeding is not likely to determine or seriously impact the other proceeding; and it is not otherwise appropriate or desirable to join the matters.
- The above consideration of the factors identified by Besanko J in Humphries supports that conclusion.
- Notwithstanding my conclusion, I am cognisant of the opinion expressed by Dr Jodie Carter which suggests that there is a risk of Mr Reynolds decompensating if the hearing of the matter is further delayed. In this regard, I will hear the parties in relation to securing, if possible, an expedited hearing date for WC/2017/6.
- Application refused.
- Costs reserved.
  FCA 699 .
  VLR 245, 247.
 (1990) 25 FCR 311, 314.
  NSWSC 110  (Citations omitted.)
 Workers Compensation and Rehabilitation Act 2003 s 552A.
 Workers' Compensation Regulator Reasons for Decision 51808, 21 December 2018.
 Affidavit of Margaret Esdale sworn 26 June 2019.
 Exhibit MAE5 to the Affidavit of Margaret Esdale sworn 19 July 2017.
 House v King (1936) 55 CLR 499, 504-505.
  ICQ 7.
  ICQ 5 .
  QIRC 61 .
 T1-9 Ln 35–37.
- Published Case Name:
Brett Reynolds v Workers' Compensation Regulator and Aurizon Operations Ltd
- Shortened Case Name:
Reynolds v Workers' Compensation Regulator
 QIRC 140
Member O'Connor VP
19 Sep 2019