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- Unreported Judgment
 QIRC 189
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Sullaphen v Drilling Services Australia Pty Ltd & Ors; Sullaphen v Workers' Compensation Regulator  QIRC 189
Sullaphen, Darren Clement
Drilling Services Australia Pty Ltd
Sullaphen, Darren Clement
Workers' Compensation Regulator
Applications in existing proceedings
30 October 2020
Industrial Commissioner Dwyer
On the papers
INDUSTRIAL LAW – DISCRIMINATION – INTERLOCATORY APPLICATION – application for matter to be heard jointly with workers compensation appeal matter – powers of the Commission – application for evidence in chief by affidavit – pros and cons of affidavit evidence – parties to make their own election.
Anti-Discrimination Act 1991, s 174, s 208
Corporations Act 2001, s 440D
Industrial Relations Act 2016, s 539, s 553
Industrial Relations (Tribunals) Rules 2011, r 41, 50, 51, r 98
Workers' Compensation and Rehabilitation Act 2003, s 32, s 549
Brett Reynolds v Workers Compensation Regulator & Ors  QIRC 140
Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator)  QIRC 124
Deanne Maree King v Workers' Compensation Regulator  QIRC 134
Humphries v Newport Quays Stage 2A Pty Ltd  FCA 699
McCauley v Club Resort Holdings Pty Ltd (No.2)  QCAT 243
McCauley v Q-Comp and Club Resort Holdings Pty Ltd  QIRC 45
Reasons for Decision
Background and nature of applications
- Mr Darren Sullaphen is the Appellant in WC/2019/80 ('the workers' compensation appeal') and the Applicant in AD/2019/33 ('the discrimination matter'), (referred to together as 'the matters').
- The Workers' Compensation Regulator ('the Regulator') is the Respondent in the workers compensation appeal. The Respondents named in the discrimination matter are: (First) Drilling Services Australia Pty Ltd, (Second) Steven Bryant, and (Third) Michael Zarafa. The First Respondent went into administration in or about early February 2020. The Second Respondent is now an undischarged bankrupt.
- There are two interlocutory applications in the matters to be determined:
- The application of Mr Sullaphen for the hearing of matters AD/2019/33 and WC/2019/80 together ('the joint hearing application'); and
- The application on behalf of the Respondents in AD/2019/33 pursuant to r 50 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') for inter alia evidence to be given by way of affidavit ('the affidavit evidence application').
- The applications were previously listed for hearing before the Commission on 14 February 2020 however, it became apparent on the morning of the hearing that the First Respondent had recently entered administration and was precluded from participating by virtue of s 440D of the Corporations Act 2001 (Cth).
- The hearing of the applications was adjourned to allow the parties to consider the appropriate future conduct of the matter in the absence of the First Respondent. During that adjournment the Second Respondent entered bankruptcy.
- At a Mention of the matters on 28 May 2020 the solicitor for Mr Sullaphen, Mr Herd, confirmed that Mr Sullaphen no longer wished to proceed against the First Respondent in the anti-discrimination matter and there were no objections from the other parties to this course of action. Consequently, the proceedings against the First Respondent are dismissed.
- There is no barrier to the proceedings against the (now bankrupt) Second Respondent continuing. Mr Sullaphen, the Second and Third Respondents in the discrimination matter ('the Respondents'), and the Regulator agreed that the applications could proceed by way of written submissions.
- Directions for the filing of written submissions were issued on 13 June 2020 and the parties have filed submissions in accordance with those Directions. The applications have been dealt with on the papers.
The joint hearing application
Powers of the Commission
- In written submissions tendered on behalf of Mr Sullaphen on 14 February 2020, it was emphasised that the application was for the matters to be 'heard together'. It was expressly noted that the application was not one for the matters to be 'joined' pursuant to r 98 of the Rules. Those submissions then press for the hearing of the matters together but fail to cite any other source of the Commission's power to make such an Order.
- Submissions from the Respondents and the Regulator asserted the Commission did not have the power to join the proceedings in the manner sought by Mr Sullaphen. The submission of the Regulator acknowledges the power conferred by r 98 of the Rules for the joining of proceedings. The submissions of the Regulator further muse on the powers conferred by r 41 of the Rules but go on to submit that the language of r 41 limits its application to 'a proceeding' i.e. singular, and that it does not accommodate an order of the nature sought by Mr Sullaphen.
- Mr Sullaphen in his reply submissions filed on 1 July 2020 cites the source of the Commission's powers as being found variously at s 553 of the Industrial Relations Act 2016 (Qld) ('the IR Act') or r 41 of the Rules.
- No such power is obvious on a plain reading of s 553 or r 41. The reply submissions are not expansive on these points and do not fully particularise the proposed construction of s 553 of the IR Act or r 41 of the Rules that Mr Sullaphen says ought to be accepted as conferring the power to make the order sought.
- Section 553 of the IR Act provides:
553 General application of provisions
The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this Act or another Act, unless the contrary intention appears.
- Rule 41 relevantly provides:
41 Directions orders
- (1)The court, commission or registrar may make an order (a "directions order") about the conduct of a proceeding on the application of a party or on the initiative of the court, commission or registrar.
- (2)A directions order may, for example, relate to the following—
- the parties who are to be served with applications, related material or other documents;
- requiring evidence of the service;
- another matter relating to service of an application;
- scheduling of conferences, mediation conferences, preliminary hearings and hearings before the court, commission or registrar;
- requiring further and better particulars of an application;
- requiring the applicant to file and serve all material to be relied on in support of the application by affidavit or another form;
- requiring a party to respond to a notice to admit facts or documents;
- requiring the Respondent to file and serve material in reply;
- requiring the applicant to file and serve material in reply;
- requiring the parties—
- to confer to agree on matters that can be agreed on; and
- to identify points in issue; and
- to report back to the court, commission or registrar;
- requiring the parties to file—
- a written outline of submissions; or
- submissions about the subject matter of the application;
- evidence to be given by affidavit; or
- statements to be filed and served, in affidavit form, of the primary evidence of a witness;
- the identification of the provisions of relevant legislation or industrial instruments; and
- a list of cases to be relied on to be provided;
- requiring submissions in writing to justify the necessity to carry out inspections or hearings at other locations;
- requiring disclosure of documents;
- requiring inspection of documents.
- I do not accept that either s 553 or r 41 provide the Commission with the power to order that two proceedings be heard together in the manner proposed by Mr Sullaphen, or at all.
- In short, it seems that the logic of Mr Sullaphen's submission with respect to s 553 of the IR Act is: if the provisions of the IR Act granting powers to the Commission do not expressly exclude the joint hearing of proceedings, then they are to be read as conferring such a power.
- The clear and only function of s 553 is that it protects the provisions of the IR Act providing for powers unless a contrary intention appears i.e. it preserves the powers provided for by the IR Act. It does not grant powers by implication if they are not otherwise expressly excluded.
- The Regulator submits that r 41 of the Rules is not a source of power to make the order sought by Mr Sullaphen on the basis that r 41 expressly applies to directions orders that may be made in 'a proceeding' i.e. singular. The Regulator also relies on the comments of the Vice President in Reynolds v Workers' Compensation Regulator and Aurizon Operations Limited ('Reynolds') to the effect that the sole source of power to join proceedings is found under r 98 of the Rules. I agree with both of these submissions.
- I note that the term 'a proceeding' as it appears in r 41 of the Rules ought to be read consistently with the term 'a proceeding' as it appears in r 98. It is clearly a reference to an individual proceeding. While r 41 provides a non-exhaustive list of examples of the types of Direction that might be made in a proceeding, I am not convinced by Mr Sullaphen's submissions that such a power could be added to that list.
- The non-exhaustive nature of the powers listed as examples in r 41 does not, in the context of the Rules more broadly, give rise to a source of the power for the Commission to make the orders sought by Mr Sullaphen. The term 'joining' found at r 98 covers a broad range of concepts, including a proposal for the hearing of matters together as contemplated by Mr Sullaphen (as opposed to, or in addition to, 'joinder' which is the merging of matters). In my view, it would seem an illogical duplication for r 41 to incorporate an identical power to the one expressly conferred by r 98.
- Ultimately, Mr Sullaphen himself concedes (albeit as an alternative argument) that r 98 is the source of the power for the order he is seeking.
- I am satisfied that r 98 is the only source of the power to join proceedings. It is now a question as to whether I should exercise my discretion to do so in this application.
The discretion to join proceedings
- In Reynolds the Vice President provides a useful summary of the principles relevant to the exercise of the discretion to join proceedings pursuant to r 98 of the Rules. His Honour noted:
- 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).
- In Reynolds, having had regard to the above cited authorities, his Honour went on to apply the criteria identified by Besanko J in Humphries. I intend to adopt the same approach. Where I do not address a criterion identified by Besanko J it should be understood that I consider that criterion has no application in this matter.
- Before addressing the specific criteria it ought to be noted that my consideration of this application has, to some extent, been an exercise in speculating about the way in which the respective proceedings might be conducted. It has been necessary to take this approach because even though the material that has been filed in both matters provides some insight into how each matter might proceed, when it comes to hearings, a trial plan and the subsequent reality are rarely an exact match. Further, it is not uncommon for pleadings to be amended, plans to be altered, or witness lists to expand or contract. Even the most minor alteration to a pleading, or a plan, or a witness list can have a seismic effect on the proceedings. I have approached my consideration of this application with these vicissitudes in mind.
- Are the proceedings broadly similar in nature? In broad and simple terms, the two matters are factually founded in a series of interactions between Mr Sullaphen and the Respondents during the course of his employment between August and September 2018. Mr Sullaphen seeks to characterise these interactions as discrimination in the discrimination matter, and stressors in the workers' compensation appeal. In the latter he will additionally need to address the question of whether some or all of those actions amount to reasonable management action taken in a reasonable way.
- The Respondents and the Regulator have each provided summaries of the nature of each proceeding in their submissions. Each of their submissions correctly identify the critical differences in the proceedings with respect to the statutory framework and e.g. onus.
- Mr Sullaphen, citing the criteria identified by Besanko J in Humphries, submits that the proceedings are 'similar in nature' by reference to the issues of fact common to each proceeding with both claims stemming from interactions and meetings between Mr Sullaphen and the Respondents in August and September 2018. He also concedes that the issues of law are not similar.
- In this instance the proceedings are, on the whole, quite different. The matters independently arise under the wholly different statutory regimes of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') and the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act'). The proceedings advanced by Mr Sullaphen in each matter require the Commission to consider inter alia whether certain facts meet statutory criteria that are unrelated and completely dissimilar.
- The notion of 'broadly' similar ought to take into account all of the factual and legal matters in my view. For example, it might be that two worker's compensation appeals involving the same appellant with overlapping (but not the same) facts were broadly similar. Or two anti-discrimination matters involving different complainants impacted by the same or overlapping discrimination by a single Respondent would also be broadly similar.
- In this instance, while it might be that the factual matrix relevant to Mr Sullaphen is presented identically in each of his matters, the statutory regime in which each of his claims are founded is entirely unrelated and vastly different. For that reason I do not consider the matters to be 'broadly similar'.
- Are there issues of fact and law common to each proceeding? There are no common issues of law between the proceedings however, it is very likely that there will be replication of the facts in both matters. The critical period is August to September 2018. Mr Sullaphen alleges certain conduct during this period by the Respondents was less favourable and was because he held certain attributes prescribed by the AD Act. In the workers' compensation appeal Mr Sullaphen will contend that the same conduct that he alleges to be discrimination was causally linked to the development of his personal injury within the meaning of s 32 of the WCR Act.
- There will inevitably be substantially similar facts traversed in both matters.
- The question posed here though pertains to common issues of 'fact and law'. The issues of law in these matters are as different as the facts are similar. Similar or even the same facts alone are not enough to justify hearing the matters together in my view.
- Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? Given the substantially similar facts founding both matters, it is inevitable that there will be a number of witnesses common to both matters, but this commonality goes only to the common facts.
- Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? Given the nature of each of the proceedings, and having regard to the material filed, I would estimate that each matter would likely require approximately five hearing days.
- While there is an attractive logic to the proposition that hearing the matters together would reduce the hearing time, I am not convinced it would be a substantial reduction, and even then, it will largely be a saving of time for Mr Sullaphen only.
- The time allegedly 'saved' is something of an illusion in my view. Having regard to the total time required for both matters to be heard separately there would obviously be a time saving for e.g. Mr Sullaphen and his fourteen witnesses to give their evidence in chief only once at a combined hearing.
- However, it would not be a halving of the total time required for hearing because, given the wholly different statutory considerations, it is entirely likely that the Respondents and the Regulator would wish to conduct cross examination independently. Neither of the Respondents or the Regulator could (or should) be bound by the conduct of the other in their respective cases. The Respondents and the Regulator would be entitled to cross examine Mr Sullaphen and his fourteen witnesses to the fullest extent necessary for their respective (and different) cases.
- The time reduction would be limited to the evidence in chief of Mr Sullaphen and his fourteen witnesses. While that saving (in the context of Mr Sullaphen's case) could be significant, there will be a duplication of cross examination in combined proceedings which will ultimately add to hearing time for other parties, especially for the Regulator.
- If it transpires that each of the Respondents and the Regulator conduct independent cross examination of each of the fifteen witnesses called by Mr Sullaphen, then the Regulator will be required to 'sit through' the cross examination conducted by the Respondents for all fifteen witnesses. This will add significant time and cost to the total time the Regulator would otherwise be required to commit to the proceedings if their matter were heard alone.
- Further, witness lists can often be subject to change. If, for example, it arises that there is a witness or witnesses called by Mr Sullaphen that are not common to both matters, then in those circumstances one or other of the Respondents or the Regulator will be compelled to sit through evidence in chief and cross examination of a witness not relevant to their case.
- It is difficult to appreciate in the abstract how much (if any) time could be saved on the total hearing time however, in all of the circumstances, I am not satisfied that hearing the matters together will result in a substantial saving of time. Further, I am satisfied that there is every likelihood that hearing the matters together will add time and costs to the workers' compensation appeal proceedings for the (publicly funded) Regulator.
- 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? It is not possible to consider with precision what disputes might arise with respect to evidence in one or both of these matters. Many of these disputes are unlikely to take their form until witnesses are being questioned during the hearing. Notwithstanding this, given the number of witnesses, I consider it is likely that there will be disputation as to the admissibility of evidence lead in one proceeding as evidence in the other.
- Further, while I note that the Vice President has made certain observations about the application of the rules of evidence in workers' compensation appeals, he did not entirely exclude a departure from the rules in workers' compensation appeals.
- The real difficulty with admissibility of evidence in these matters will be where a contest emerges over evidence that is admissible in one proceeding but arguably not in the other. It is of no utility to go into lengthy speculation as to what evidence would fall into this category. Suffice is to say that, over the course of a five (or more) day hearing, involving twenty-three witnesses, the prospect of such a contest emerging is very likely in my view.
- If a contest emerges and it becomes apparent that certain evidence in one matter should not be received in the other, how does the Commission then delineate that evidence during its deliberations? It would be impossible for the objecting party or parties to be satisfied that the inadmissible evidence had not played some role in influencing the mind of the decision maker, especially oral evidence that e.g. goes to credit. Arguments about inadmissible evidence leading a decision maker into error in such circumstances are not difficult to foresee.
- Even if I am overstating the likelihood of such a contest emerging about the evidence, the mere risk of it occurring at all, and the likelihood of it leading to appealable errors by a decision maker would require extraordinarily compelling reasons for the matters to be heard together. There are no such compelling reasons advanced in this application.
- In addition to this, there is a further procedural complication for Mr Sullaphen's application. Both the Respondents and the Regulator have submitted that Brisbane City Council v Gillow prevents an order allowing these matters to be heard together because of the broad prohibition on employer's rights to intervene in workers' compensation appeals.
- Gillow dealt with an application by an employer for leave to be heard in the appeal of a worker against a decision of the Regulator. Prior to Gillow it was commonplace for employers, subject to certain conditions, to be granted leave to be heard but the effect of Gillow was that the practice ceased.
- The difficulty for the Respondents and the Regulator with their submissions on this point is that there is no application before me where the employer (or its directors) seek leave to be heard in Mr Sullaphen's workers' compensation appeal. On the contrary, it is Mr Sullaphen who is inviting, albeit consequentially, the participation of the employer in his workers' compensation proceedings.
- However, the absence of an application for leave to be heard by the employer does not mean that Gillow has no application. As the (then) President said in Gillow:
…It would be inconsistent with the history of the legislation to conclude that, notwithstanding the confined legislative provisions allowing an employer to be a party, the general provisions of the IR Act can be called upon to allow an employer to take part in an appeal by other means.
- Considering the narrow statutory scope allowing for employers to participate in workers' compensation appeals, it is clearly not a proper use of the discretions afforded to the Commission under the IR Act and the Rules to allow an employer to take part in a workers' compensation appeal outside of those statutory confines.
- The term 'take part' used by the (then) President extends the prohibition to circumstances beyond an application by an employer for leave to be heard. In my view it extends to circumstances where an appellant employee consents, or (as in this instance) where the employers participation in the workers' compensation appeal will be incidental to the proceedings being heard together.
- In circumstances where an employer cannot take part in an employee's workers' compensation appeal, I consider that attempting to hear these matters together would be something of a logistical nightmare. Trying to quarantine the employer from straying into the workers' compensation appeal throughout the proceedings would require almost constant attention to the issue, and the potential for disputation and error as to the boundaries would be high. It would add a highly complicated layer to the proceedings.
- 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? I can entirely understand the attraction of the proceedings being heard together for Mr Sullaphen. The prospect of one hearing rather than two for an individual conducting litigation of this nature has an alluring appearance of convenience and cost efficiency. But beyond a superficial consideration of the proposition, I consider that the practical reality is very likely to fail to deliver those perceived efficiencies even for Mr Sullaphen. That is: if the risk of error or disputation about evidence comes to pass, it could well result in either lengthy interlocutory proceedings or appeals (or both), which would ultimately consume any time or cost benefits sought to be gained by Mr Sullaphen.
- Further, if there are any benefits to be gained from hearing the matters together at all, they will only be benefits for Mr Sullaphen. My consideration of this application requires a broader focus than just the interests of one party.
- Given my comments above, it is anticipated that even if the matters were heard together, the Respondents and the Regulator would likely wish to conduct their part of the proceedings in precisely the same way as they would have had the matters been dealt with separately. As discussed above, this would lead to a duplication of evidence from the witnesses called by Mr Sullaphen.
- It might be argued that the Respondents and the Regulator could agree to coordinate the conduct of their respective cases to minimise duplication, but it is entirely beyond the powers of the Commission to order a party to conduct their case in that way.
- Even if the Respondents and the Regulator had an appetite for such an exercise (which they unequivocally do not) it would likely require more than a small amount of additional preparation time to plan for a coordinated approach, such that any time saving from hearing the matters together would be unlikely to be substantial.
- In all of the above circumstances I am not convinced a case can be made for hearing the matters together.
- Before concluding, it is necessary to address Mr Sullaphen's submission that the matters ought to be heard together (or at least by the same Member) to avoid the risk that, if heard separately there may be different findings of fact.
- It is not a novel event to find a litigant advancing claims under both the WCR Act and the AD Act. But for the introduction of relatively recent amendments to the AD Act giving jurisdiction to the Commission, there would have been no prospect of Mr Sullaphen having his two matters heard together. In those circumstances it would have been inevitable that two decision makers, in different jurisdictions, were required to make findings about the same facts.
- While the prospect of two Members adjudicating the same facts in separate proceedings may not be ideal, the risk of inconsistency in the findings is outweighed by inter alia the likely procedural difficulties and disadvantages to e.g. the Regulator that I have identified at length above.
- Further, where two matters involving the same facts are heard consecutively, the latter decision maker can be put on notice of the earlier findings (if available) and may even adopt them to avoid the risk of inconsistency. While it can be a delicate task, with proper notice of the findings of another decision maker about the same or similar facts, a Member dealing with the subsequent proceedings can adequately manage the risk identified by Mr Sullaphen in my view.
- In all of the circumstances, I do not consider there to be a compelling argument for the matters to be heard together. Further, I do not intend to retain the workers compensation appeal and will order for the file to be returned to the Registry for re-allocation.
The affidavit evidence application
- For clarity it ought to be noted at the outset that, given the matters will not be heard together, the orders I make as a consequence of this application will have no application to the Regulator.
- By way of application filed 21 October 2019 the Respondents sought inter alia an order in the following terms:
Pursuant to reg.50(1) the parties may give evidence in chief by affidavit.
- Rule 50(1) of the Rules relevantly provides:
50 Evidence on affidavit
- (1)Evidence may be given by affidavit under a direction of the court, commission or registrar.
- Rule 50 gives the Commission a wide and unfettered discretion to direct that evidence be given by affidavit. Further, the term 'evidence' in no way limits the discretion to an order that all evidence be given by affidavit i.e. the language contemplates a variety of scenarios were e.g. the evidence of individual witnesses may be given on affidavit, where others provide evidence viva voce.
- The language of the order sought in the application filed by the Respondents includes the limiting language 'parties' and 'may'. If granted in those terms, such an order would do no more than give the parties (as opposed to non-party witnesses) leave to exercise their own discretion as to how they give their evidence in chief. I note that Mr Sullaphen generally consents to the making of such an order, and further, appears to consent to the Respondent's lay witnesses also giving evidence by affidavit.
- However, it is apparent from the submissions of the Respondents and the minutes of proposed consent orders filed 17 June 2020 that the Respondents are seeking an order that all witnesses (including experts) file affidavit evidence in chief. I will consider their application on that basis.
- Mr Sullaphen resists the application to the extent that it seeks to compel him he and his witnesses to give evidence in chief by affidavit. In written submissions dated 14 February 2020 Mr Sullaphen submits that viva voce evidence ought to be preferred because:
- Credit of witnesses will be in issue; and
- Preparation of affidavits will cause increased cost to the parties.
- In their written submissions of 17 June 2020, the Respondents set out their reasons for seeking the order for affidavit evidence. I will deal with those in more detail below. Before doing so, I note that the Respondents also set out a number of propositions pertaining to affidavit evidence more generally in support of their application. I broadly agree with each of those general propositions.
- In particular, I do not consider that circumstances where the evidence of a witness is likely to be controversial, or where credit is in issue, should preclude affidavit evidence. Cross examination will ordinarily allow adequate challenges to be made regardless of the manner in which evidence in chief is delivered.
- I also do not consider that affidavit evidence is likely to add significantly to the cost of proceedings. As noted by the Respondents in their submissions, the proper preparation of witnesses will require comprehensive interviewing and often the preparation of a written proof of evidence. In addition, in hearings before this Commission where evidence is viva voce it is common practice to direct that parties exchange written summaries of witness evidence in advance. The preparation of an affidavit would replace two of those three steps.
- I am asked to take administrative notice that a worker such as Mr Sullaphen will be less well-resourced in the conduct of such proceedings. While I broadly agree with that proposition, it is too general to be of any real utility in influencing my discretion. I have no evidence before me that would permit me to reach any specific conclusions about Mr Sullaphen's resources and so I am not influenced, either way, with respect to considerations about his capacity to pay costs associated with the preparation of affidavits.
- I also have no evidence as to whether those costs incurred are being e.g. deferred by virtue of a speculative fee arrangement. I have no evidence before me that would allow me to reliably conclude the additional cost of preparing affidavits, whatever it might be, will unfairly impact on Mr Sullaphen.
- In addition to that, I note that of the remaining Respondents, both are individuals like Mr Sullaphen, and one is bankrupt.
- However, while I agree with the propositions cited by the Respondents in their submissions with respect to affidavit evidence generally, these are mostly broad propositions about the merits of affidavit evidence only. In my view the discretion needs to also be informed by considerations more specific to the parties and the particular proceedings they are in.
- At paragraph 15 of the Respondent's submissions filed on 17 June 2020 the Respondents submit that the Commission ought to exercise its discretion to compel all witnesses (including experts) to provide evidence by affidavit because, in essence:
- Given the number of witnesses to be called in total, the elimination of viva voce evidence in chief will shorten proceedings; and
- Affidavit evidence will assist the parties to narrow issues in dispute in advance of the hearing.
- I have no difficulty accepting that affidavit evidence from all witnesses can have the effect of reducing the hearing time, but it is impossible to say by how much.
- Estimating hearing time is probably the most vexed aspect of trial management and it invariably ends in disappointment. There are far too many uncontrollable factors. While affidavits might theoretically lead to a shortening of proceedings, it may not be a substantial time saving.
- For example, in circumstances where an affidavit delves into more detail than necessary, or attaches complex documents of peripheral relevance, there will often be a need for more extensive cross examination simply for the sake of thoroughness. Short of objectionable content, it is not within the powers of the Commission to strike out minutiae that has been included by the deponent, often on the advice of their lawyers.
- If this hypothetical scenario is repeated fifteen to twenty times for each witness, the cumulative effect will be the loss of some of the time savings intended to be achieved. In the circumstances, while one can be optimistic that affidavits will reduce hearing time, there is no guarantee that any reduction will be substantial.
- Similarly, while affidavits can have the effect of narrowing issues, there is no predicting whether they actually will, or by how much. In any event, the parties ought to be striving to narrow the issues in other ways too, including e.g. developing a set of agreed facts.
- While I accept that the grounds cited by the Respondents for the making of the order are worthy of consideration, there are other considerations unique to this matter that need to be taken into account.
- There is no static list of 'pros and cons' for the giving of evidence by affidavit. The benefits, advantages, or disadvantages will emerge in the unique circumstances of each matter. Some jurisdictions have adopted affidavit evidence as a routine practice, in others it is the exception. Contrary to Mr Sullaphen's submission there is no 'normal course' for giving evidence viva voce in matters of this type, especially where the Rules allow for a direction for affidavit evidence.
- Critics of affidavit evidence will commonly say that it is artificial, often authored by the lawyer for the witness, and devoid of the forensic advantage of the judge or opposing counsel seeing the witness 'tell their story' in the scrutinous environment of the hearing room. While these disadvantages (perceived or real) have the potential to occur, they are easily negated in my view by well prepared and well executed cross examination.
- Further, the mere fact that evidence in chief is reduced to affidavit form does not mean that a judge or (in this case) Commission member is bound to simply passively accept the sworn testimony. Observations of a witness being cross examined on his or her affidavit are often sufficiently insightful, as are responses to questions from the bench.
- Occasionally there can be serious disadvantages in the giving of viva voce evidence. Litigants or witnesses will each react differently to the experience of giving evidence. In some cases, especially where a witness is affected by mental health issues, the unfamiliar and formal surroundings of a hearing room, coupled with e.g. the distressing subject matter of the evidence, will have an emotional consequence that can impede their capacity to give a full and proper account of themselves. Wherever a witness is impeded in this way, a disadvantage arises.
- This is just one example of disadvantage arising from viva voce evidence. There are countless other imaginable scenarios that can be produced as cautionary tales, both for and against affidavit evidence. However, nothing serves better to guide the discretion granted by r 51 than the specific circumstances of the proceedings before the Commission.
- In the absence of a rule or practice direction prescribing that proceedings must be conducted by way of affidavit evidence, in my view it would be more than a little oppressive to compel a party or witness to provide their evidence by affidavit if their preference is to provide it viva voce.
- Further, while reducing hearing time and narrowing issues are always desirable outcomes, there would need to be compelling evidence effectively guaranteeing such outcomes before these considerations could take precedence over the wishes of a party opposed to giving affidavit evidence.
- While I support the Respondents optimism and aspirations in this regard, I am not persuaded that affidavit evidence for all witnesses would make the conduct of this matter markedly more efficient.
- In the circumstances, I am not prepared to grant an order that all witnesses provide evidence in chief by way of affidavit. I am however prepared to give an order that any or all of the parties and their witnesses may give evidence in chief by way of affidavit should they so choose. It follows that the form and content of those affidavits ought to be in compliance with the Rules.
- I propose to make an order sufficiently wide that in the event that Mr Sullaphen subsequently sees an opportunity where affidavit evidence from him or one of his witnesses might have the effect of shortening proceedings or narrowing issues, then he will have the opportunity to take advantage of that.
- I hasten to add one further observation before concluding. With respect to the expert witnesses, the common practice in this jurisdiction where a report has been prepared by an expert is to tender the report at hearing. Once the report is identified under oath or affirmation, it will serve as the expert's opinion evidence.
- Leave can be granted by consent (or without consent, in limited circumstances) for further evidence in chief to be led from the expert before cross examination. It is not usual for an expert to put their opinions into an affidavit in this jurisdiction, though I should add that there is nothing precluding expert testimony being presented in that way.
- Finally, I ought to note that the application filed 21 October 2019 included multiple other requests for orders regarding further and better particulars and disclosure. The Respondents have not pressed those matters, though I do not regard them as having been abandoned. Upon delivery of this decision this matter will be listed for further mention and the positions of the parties with respect to further programming of the matter will be discussed.
- I make the following order:
- The proceedings in AD/2019/33 against the First Respondent are dismissed;
- The application to hear matter AD/2019/33 and WC/2019/80 together is refused;
- Any or all of the parties and witnesses in matter AD/2019/33 may give evidence in chief by affidavit; and
- Matter WC/2019/80 will be returned to the Registry for allocation to another Member.
 Transcript 28/5/20, Page 1-2, Line 20-40.
 There is reference to authorities dealing with r 79 of the UCPR which does not form the basis of any powers of the Commission.
  QIRC 140 at .
 See paragraph 8 of Mr Sullaphen's reply submissions filed 1 July 2020.
 See paragraph 7 of Mr Sullaphen's reply submissions filed 1 July 2020.
  FCA699 .
 Respondents submissions filed 17 June 2020, paragraphs 2-11; Regulators submissions filed 13 February 2020, paragraph 5.
 Submissions of Mr Sullaphen dated 14 February 2020 at paragraph 7 and 13.
 Submissions of Mr Sullaphen dated 14 February 2020 at paragraph 13.
 Mr Sullaphen has filed a list of witnesses in his workers' compensation appeal naming fifteen persons. The Regulator has named eight witnesses.
 See s 531 of the Industrial Relations Act 2016 (Qld) and s 208 of the AD Act.
 Deanne Maree King v Workers' Compensation Regulator  QIRC 134 at -.
 See Deanne Maree King v Workers' Compensation Regulator  QIRC 134 at .
 As foreshadowed by the Regulator at paragraph 4 of its submissions filed 17 June 2020.
  ICQ 7.
 At .
 See s 549(3) and (4) of the WCR Act.
 See for example McCauley v Q-Comp and Club Resort Holdings Pty Ltd  QIRC 45 and McCauley v Club Resort Holdings Pty Ltd (No.2)  QCAT 243.
 Section 174B.
 See s 208(1)(b) and (c) of the AD Act.
 See for example McCauley v Club Resort Holdings Pty Ltd (No 2)  QCAT 243 at  – .
 See Mr Sullaphen's submissions dated 14 February 2020, at paragraph 5.
 See draft minutes of consent order at paragraphs 1-3.
 At paragraphs 3 and 4.
 Respondents submissions dated 17 June 2020 at paragraph 15.
 Respondents submissions dated 17 June 2020 at paragraphs 17 to 22.
 Mr Sullaphen's submissions dated 14 February 2020 at paragraph 5.
 See r 50-57.
- Published Case Name:
Sullaphen v Drilling Services Australia Pty Ltd & Ors; Sullaphen v Workers' Compensation Regulator
- Shortened Case Name:
Sullaphen v Drilling Services Australia Pty Ltd & Ors; Sullaphen v Workers' Compensation Regulator
 QIRC 189
Member Dwyer IC
30 Oct 2020