Brisbane City Council v Gillow[2016] ICQ 7

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   This decision concerns two appeals. The first raises issues with respect to the power of the Queensland Industrial Relations Commission to grant leave to appear at the hearing of appeals under the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act). The second concerns the requirements of s 559 of the WCR Act.

Background

2. [2]
   The first respondent, Mr Gillow, claimed that he had suffered compensable injuries arising out of his employment with the appellant, the Brisbane City Council (BCC). BCC is a self-insurer under the WCR Act. Mr Gillow claimed that his injuries had been sustained on three separate days. City WorkCover (the body within BCC which deals with these matters) rejected his claims. The Regulator confirmed the decisions of City WorkCover. On 16 April 2015 Mr Gillow instituted 3 appeals against the decisions of the Regulator.
3. [3]
   The appeals were listed for hearing for three days from 6 July 2015.
4. [4]
   At a callover on 30 April 2015 BCC appeared and informed the Vice President that it intended to file applications for leave to be heard on the appeals. In response, the Vice President made it clear that the applications would have to be filed promptly not least because of the timetable which had already been set. The representative of BCC told the Vice President the application would be filed by 11 May.
5. [5]
   The applications were not filed until 23 June. They were heard on 26 June with further written submissions provided on 29 and 30 June. Her Honour gave her decision on 1 July and dismissed the applications. This decision gives rise to the first appeal.
6. [6]
   Before the date set for the hearing, the appeals were settled, the parties signed consent orders and Commissioner Thompson made those orders but, and this is the basis of the second appeal, did not give the decision in “open court”.

Statutory Structure

7. [7]
   These appeals require a consideration of parts of both the Industrial Relations Act 1999 (IR Act) and the WCR Act.
8. [8]
   The relevant sections of the IR Act are as follows.
9. [9]
   Section 265 deals with the Commission’s jurisdiction. It relevantly provides:

“(1) The commission may hear and decide the following matters—

…

4. (d)
   all appeals properly made to it under this or another Act;

5. (e)
   all matters committed to the commission by this or another Act.”

10. [10]
    Part 3 Division 1 of Chapter 13 of the WCR Act provides that the Commission can hear appeals from “review decisions” within the meaning of that Act.
11. [11]
    Section 677 is contained within the chapter of the IR Act which deals with legal proceedings. That section provides:

“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 or another Act, unless the contrary intention appears.” (emphasis added)

12. [12]
    Section 329 deals with powers incidental to the exercise of jurisdiction and, so far as is relevant, provides:

“Except as otherwise prescribed by this Act or the rules, the court, commission and registrar may—

1. (a)
   at or before a hearing, take steps to find out whether all persons who ought to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and

2. (b)
   direct, for proceedings—

1. (i)
   who the parties to the proceedings are; and

2. (ii)
   by whom the parties may be represented; and

3. (iii)
   persons to be called to attend the proceedings, if they have not been called and it appears they should attend the proceedings; and

4. (iv)
   parties to be joined or struck out; and

5. (v)
   who may be heard and on what conditions;

…”

13. [13]
    Section 320 is concerned with the basis of decisions of the Commission and provides, in relevant part:

“(2) In proceedings, the commission or Industrial Magistrates Court—

1. (a)
   is not bound by technicalities, legal forms or rules of evidence; and

2. (b)
   may inform itself on a matter it considers appropriate in the exercise of its jurisdiction.

3. (3)
   Also, the commission or Industrial Magistrates Court is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—

1. (a)
   the persons immediately concerned; and

2. (b)
   the community as a whole.”

14. [14]
    The relevant sections of the WCR Act are as follows.
15. [15]
    Section 549 sets out who may appeal from a “review decision”:

“(1) A claimant, worker or employer aggrieved by the decision (the appellant) may appeal to an appeal body against the decision of the Regulator or the insurer (the respondent).

3. (2)
   An insurer aggrieved by a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi) may appeal to an appeal body against the decision of the Regulator.

3. (3)
   If the appellant is an employer—

1. (a)
   the claimant or worker may, if the claimant or worker wishes, be a party to the appeal; and

2. (b)
   an insurer may, if the insurer wishes, be a party to the appeal if the appeal is against a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi).

3. (4)
   If the appellant is WorkCover, an employer may, if the employer wishes, be a party to the appeal.”

16. [16]
    Section 558 deals with the powers of an appeal body. The Commission is an appeal body within the meaning of the WCR Act:

“(1) In deciding an appeal, the appeal body may—

1. (a)
   confirm the decision; or

2. (b)
   vary the decision; or

3. (c)
   set aside the decision and substitute another decision; or

4. (d)
   set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.

3. (2)
   If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.

3. (3)
   Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.”

17. [17]
    Section 559 sets out how an appeal body must give a decision:

“The appeal body must give—

1. (a)
   the appeal body’s decision in a hearing in open court; and

2. (b)
   a written copy of the decision to each party.”

18. [18]
    Sections 561 and 562 deal with appeals to this Court and this Court’s powers.

“561 Appeal to industrial court

3. (1)
   A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.

3. (2)
   The Industrial Relations Act 1999 applies to the appeal.

3. (3)
   The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.

3. (4)
   The court’s decision is final.

562 Powers of industrial court

3. (1)
   In deciding an appeal, the industrial court may—

1. (a)
   confirm the decision; or

2. (b)
   vary the decision; or

3. (c)
   set aside the decision and substitute another decision.

3. (2)
   If, on an appeal in relation to a decision mentioned in section 560A(a), the court acts under subsection (1)(b) or (c), the decision of the court is taken for this Act, other than this division, to be the decision of the industrial commission.

3. (3)
   If, on an appeal in relation to a decision mentioned in section 560A(b), the court acts under subsection (1)(b) or (c), the decision of the court is taken for this Act, other than this division, to be the decision of the insurer.”

Standing to bring the appeal in C/2015/34

19. [19]
    The first respondent, Mr Gillow, contends that BCC does not have the necessary standing to bring appeal C/2015/34, the appeal concerning the making of consent orders. He argues that BCC is not a “party aggrieved” within the meaning of s 561 of the WCR Act. That question would be determined, at least in part, if BCC is successful in the other appeal because it could argue that had it been given a right to appear then the outcome of the proceedings before Commissioner Thompson might have been different.
20. [20]
    This point depends upon the outcome in the other appeal, to which I now turn.

The first appeal – what was the decision of the Commission?

21. [21]
    The Vice President approached the application by BCC by undertaking a detailed examination of the history of the matter and considering whether, if the Commission had the discretion to allow BCC to appear on the hearing of the appeal, she would exercise that discretion in BCC’s favour. Put another way, the Vice President considered the “merits” of the application before discussing the law.
22. [22]
    Her Honour decided that: “If I have a discretionary power to deal with an application from an employer for leave to be heard in a workers' compensation appeal then I do not exercise that discretion on this occasion.”^[1]  In arriving at that conclusion the Vice President referred to the substantial delay in making the application, the absence of any explanation for the delay, and the failure by BCC to attempt to comply with the directions which had been given (which it might have done as a means of demonstrating that leave should be granted).
23. [23]
    The Vice President also considered BCC’s position as a self-insurer and determined: “If I have a discretionary power then I would not exercise that discretion to grant the Brisbane City Council a right to be heard in Mr Gillow's Notices of Appeal given that the applications for a right to be heard have been made by the self-insurer.”^[2]
24. [24]
    Thus, the Vice President made it plain that if there was a discretion BCC would not be the beneficiary of a favourable determination.
25. [25]
    Her Honour then went on to consider the fragmented approach which has been taken to the exposition of this question in the Industrial Court. Her Honour did not reach an unconditional conclusion. She said: “If the decision of Hall P in Frazer v Gardner is correct then neither s 320(2) nor s 329(b)(v) of the Industrial Relations Act 1999 can give the Commission power to deal with these applications.”^[3] 

The grounds of appeal

26. [26]
    The appellant relies upon the following omissions or acts to demonstrate errors in law or fact:

    1. (a)
       a failure to find that the Commission had power pursuant to s 320(2) and/or s 329(b)(v) of the Act to order that the appellant have leave to appear and be heard at the appeals;
    2. (b)
       a failure to exercise the discretion in favour of the application by the appellant;
    3. (c)
       a failure to find that the appellant was the employer of Mr Gillow and was applying for leave to appear as an employer and not as a self-insurer; and
    4. (d)
       ordering the appellant to pay the costs of Mr Gillow when there was no proper basis to do so.

Leave to appear – the authorities so far

27. [27]
    There has been a procession of decisions on the question of whether the Commission has the power to allow a person to appear in appeals brought to it under the WCR Act. In order to understand the jurisprudence which has developed it will assist if some of the earlier decisions are examined.

Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138 (23 January 2001)

28. [28]
    This case concerned the authority of the Industrial Magistrates Court when exercising power invested in it by the WorkCover Queensland Act 1996 (WQ Act). It is not stated in the decision, but the appellant was an employee of Teys Bros.^[4]
29. [29]
    Section 320 of the IR Act was in the same terms as it is now and Hall P said this about it:

“There is paucity of authority on the exercise of the power at s. 320 by Industrial Magistrates. However, there is authority upon the use of the power by the Queensland Industrial Relations Commission. The cases certainly establish that s. 320(2) vests the commission with a wide ranging power to gather “evidence”. In Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others (1994) 145 QGIG 664 at 665 Mackenzie, President said “The liberty (the commission) has in going about the process of informing itself for the purpose of exercising its jurisdictional powers and the performance of its duties is extremely wide.”. The cases also establish that in order to inform itself the Commission may hear from a person with no right to be heard, Amalgamated Society of Carpenters, Joiners, Bricklayers, Plasterers, Painters and Decorators of Australasia, Union of Employees, Queensland and Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees and Queensland Colliery Employees Union of Employees (1996) 153 QGIG 537 at 538 per De Jersey, President. Once permitted to appear such a person may, subject to s. 319, be represented by counsel. The structure of s. 320(2) makes impossible any attempt to argue that the powers of the Industrial Magistrates Court are (relevantly) different to the powers of the Queensland Industrial Relations Commission. Indeed, in contemplating that proceedings in the Industrial Magistrates Court may involve “a person ordered or permitted to appear” s. 319(1) contemplates that s. 320(2) may be used to permit a person to appear in the Industrial Magistrates Court. If s. 320(2) does not authorise the Industrial Magistrates Court to permit a person to appear the reference to “a person . . . permitted to appear” in the Industrial Magistrates Court in s. 319(1) has no content. The reference is plainly not to an intervener under s. 322. An intervener under s. 322 is by force of the Act “a party to the proceedings”, see s. 322(3). The reference cannot be to a person “permitted to be heard” pursuant to s. 329(b)(v). Section 329 deals with the powers of “the Court, Commission and Registrar”. “Court” is by Schedule 5 defined to be this court. The noun does not include the Industrial Magistrates Court. For completeness and in deference to arguments which have been put in this matter, I should emphasise that s. 320(2) vests the Industrial Magistrates Court with a discretion to allow a person to be heard. There is no obligation to allow a person to be heard. There seems no reason to doubt that like the intervention power at s. 43 of the Workplace Relations Act 1996 (Cth), s. 320(2) vests power to grant a limited right to be heard or a right to be heard subject to the observance of conditions imposed by the Industrial Magistrate, compare R. v Evatt; ex parte Master Builders Association (NSW) (1974) 132 CLR 150 at 153-4 and 155 and Re: Ludeke and Others; ex parte Customs Officers Association of Australia, 4th Division (1985) 59 ALR 415 at 428 per Mason, J and 429 per Deane, J.”^[5] (emphasis added)

30. [30]
    The argument put to Hall P was described by him in this way:

“It is necessary to say something of Chapter 9 Part 3 because it is the contention of the respondents (a) that Chapter 9 Part 3 so limits the participants in appeals to the Industrial Magistrates Court as to exclude the operation of s. 320(2) to allow a person in the position of the appellant to be heard, (b) that Chapter 9 Part 3 establishes a code governing the conduct of appeals to the Industrial Magistrates Court under the WorkCover Queensland Act 1996 which leaves no room for the operation of the general provisions of the Industrial Relations Act 1999, and (c) that Chapter 9 Part 3 (as part of the code previously referred to) establishes a right of appeal to this court which ousts the provisions of the Industrial Relations Act 1999 otherwise conferring upon the appellant a right to appeal and a right to seek what at one time was known as prerogative relief.”^[6]

31. [31]
    Section 498 of the WQ Act was similar, but not identical, to s 549 of the WCR Act. It provided:

“(1) A claimant, worker or employer aggrieved by the decision (the “appellant”) may appeal to an industrial magistrate against the decision of the review unit, WorkCover or the self-insurer (the “respondent”).

3. (2)
   If the appellant is an employer, the claimant or worker may, if they wish, be a party to the appeal.”^[7]

32. [32]
    In rejecting that argument, Hall P said:

“In every case in which s. 320(2) is utilised to allow evidence and/or submissions it will be utilised to allow evidence and/or submissions by a person who is not a party to the cause and to violate the inter parties [sic] nature of the matter. The real issue is whether Chapter 9 Part 3 of the WorkCover Queensland Act 1996 sufficiently demonstrates an intention to deny Industrial Magistrates power to extend an opportunity to be heard to a person whose pecuniary interests will be directly (not indirectly) affected by the outcome of an appeal to which he is not a party, notwithstanding that an opportunity to be heard (albeit perhaps conditionally) would otherwise be extended to him because of the “basis” on which the proceedings in the Industrial Magistrates Court are conducted. I am unable to find language which demonstrates such an intention. I reject the submission that the principle in Cooper v Wansworth Board of Works (1863) 14 CB(NS) 180 [143 ER 414] is applicable only in administrative proceedings. In The Commissioner of Police v Tanos (1958) 98 CLR 383 at 396, Dixon CJ and Webb J observed of the rule that, “It is hardly necessary to add that its application to proceedings in the established courts is a matter of course.” See also FAI Insurances v Winneke (1982) 151 CLR 342 at 411 to 412, and Allesch v Maunz [2000] HCA 40 (3 August 2000) at para 35 where Kirby J observed:

‘It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as ‘an indispensable requirement of justice’. It is a rule of natural justice or ‘procedural fairness’. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common law and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.’

It may be accepted that Chapter 9 Part 3 establishes a procedural code which largely ousts the procedures, e.g. under the Industrial Court Rules 1997, which would otherwise apply in the Industrial Magistrates Court. But there is a difference between changing a procedural regime and varying the “basis” of proceedings by sweeping away a worker’s opportunity to be heard in defence of his own interests. In my view there is nothing in Chapter 9 Part 3 to deny the Industrial Magistrate the powers which he would otherwise have had under s. 320(2) to permit the appellant (by counsel if need be) to speak in his own interests.”^[8] (emphasis added)

Frazer v Gardner (2001) 167 QGIG 911 (21 August 2001)

33. [33]
    This was an appeal from a decision of an Industrial Magistrate under s 164(3) of the Workplace Health and Safety Act 1995. The matter before the Industrial Magistrate had been a prosecution for an offence under that Act. In the course of the prosecution the complainant sought to rely on s 320 of the IR Act as a head of power pursuant to which the Industrial Magistrate might admit otherwise inadmissible evidence. In dismissing the appeal, Hall P referred to the definition of “proceedings” set out in s 319 of the IR Act and said:

“The complainant legitimately relies heavily on the exclusion from s. 320 of “an offence against this Act”, see s. 320(1)(b). The submission is that proceedings for “an offence against another Act” are not excluded from the operation of s. 320. For myself, I consider it not to be a correct approach to commence with s. 320(1). In my view one should commence at s. 320(2) which indicates the scope of s. 320 rather than with the subsection which exempts some proceedings otherwise within its scope. It is difficult to treat the reference to “proceedings” in s. 320(2) as referring to anything other than proceedings under the Industrial Relations Act 1999. Given that the immediately preceding section, viz s. 319, defines “proceedings” to mean “proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the Registrar” and that the definition is not repeated at s. 320, one would have thought that a different meaning was intended. It was unnecessary to exclude prosecutions under the Workplace Health and Safety Act 1995 from the operation of s. 320 because such prosecutions were not otherwise within the section.”^[9] (emphasis added)

State of Queensland v Squires & WorkCover (2002) 170 QGIG 20 (7 May 2002)

34. [34]
    The State of Queensland was Squires’ employer. He appealed a decision (made under the WQ Act) of the Statutory Review Unit and the State sought to appear on the hearing of the appeal. Hall P said that it was plain that the State’s pecuniary interests were involved, applied his decision in Middleton and said:

“For reasons advanced in the decision in Middleton and Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138 I am satisfied that the Industrial Magistrate had power to grant the application made by the now appellant. I accept also, for the reasons advanced in Middleton (ibid.), that the now appellant has locus standi to appeal against the decision of the Industrial Magistrate to this Court.”^[10]

Queensland Nurses’ Union of Employees v Blue Care & Ors (2004) 175 QGIG 872 (23 February 2004)

35. [35]
    This case did not concern the WQ Act or the WCR Act but was relied upon by the appellant to demonstrate another means by which it might be granted leave to appear. At first instance, the Queensland Nurses Union sought to be heard on an application by Blue Care for the making of an enterprise award. It appears that the QNU was only given some partial right to appear. On appeal, a Full Bench of the Commission referred to the power in s 329(b)(v) of the IR Act and said:

“The circumstance that the power at s. 329(b)(v) is discretionary does not mean that in no circumstance may a stranger to proceedings in the Commission have a right to be heard. The case in support of a particular application to be heard may be so overwhelming that the discretion to grant a right to be heard will develop into a duty to do so. That will typically be the case where the interests of the person seeking to be heard will be directly affected by a decision in the principal proceedings. The case will be different where any impact of an order made in the principal proceedings upon the applicant to be heard will be indirect, tangential or consequential. In such a case fairness may require grant of the application to be heard. But an applicant seeking to be heard has no exclusive claim on fairness. In such a case it would be necessary to consider a range of other matters, e.g., whether other remedies are available to the applicant, the extent of any disruption to the inter partes nature of the principal proceeding, the applicant’s prospect of success if heard etc. The Commissioner was alive to all of that. The Commissioner expressly referred to the decision of the High Court in Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 59 ALR 417. That case of course did not concern s. 329(b)(v) of the Act. It concerned an application to intervene under the Conciliation and Arbitration Act 1904 (Cth). But the parties to the proceedings before the Commissioner accepted that principles developed in Ludeke, ibid, should guide the exercise of discretion under s. 329(b)(v). Importantly at p. 421 Gibbs CJ and at pp. 428-429 Deane J recognised the distinction between direct and indirect impact on the interests of an applicant.”^[11] (emphasis added)

Sisters of Mercy v Karas & Q-COMP (2009) 192 QGIG 127 (6 October 2009)

36. [36]
    In this case, Ms Karas’ employer was granted leave by the Industrial Magistrate to be heard “on the express basis that [it] was not being made a party to the proceedings”. While it was not necessary for the determination of the appeal, Hall P made the following observation about granting leave to appear:

“Ms Karas' employer was granted leave to be heard on the express basis that the employer was not being made a party to the proceedings. I accept that in fact the employer played an active role in the proceedings in the Industrial Magistrates Court, e.g. calling and cross-examining witnesses.  All of that allowed for by the express terms of the order which expressly denied the employer the status of a party.  In any event, the Industrial Magistrate had no power to grant the employer the status of a party.  For completeness, I should add that each of the decisions of this Court supporting the proposition that an Industrial Magistrate may grant an employer leave to be heard viz., Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG and State of Queensland v Squires and WorkCover Queensland (2002) 170 QGIG 20, were decided on an early version of the WorkCover Queensland Act 1996.  It may be doubted whether grant of such leave is consistent with s. 449 of the Workers' Compensation Act 2003.”^[12] (emphasis added)

37. [37]
    The reference to s 449 of the WCR Act would seem to be a mistake and should be a reference to s 549. Section 549 was then^[13] in the same form as it is now.
38. [38]
    The doubt expressed in Karas was not maintained in the next case in which this issue arose.

Buckley v Queensland Health & Q-COMP (C/2010/13) 19 April 2010

39. [39]
    In a very compact set of reasons, Hall P set aside a Case Stated and then said:

“I affirm that on the current state of the authorities, the status quo position is that s. 320 of the Industrial Relations Act 1999 does vest the Queensland Industrial Relations Commission (the Commission) and an Industrial Magistrate with the authority to grant interested parties leave to be heard (as a matter of discretion) and subject to such restrictions as the Commission or Industrial Magistrate thinks fit.”^[14]

40. [40]
    Thus, it appears that, in Buckley, Hall P reaffirmed the position in Middleton, a position which his Honour had doubted in Karas.  

Other cases

41. [41]
    Since the decision in Buckley there have been some decisions of the Commission which have also considered this question. In Woolworths Ltd v Dinca & Blackwood^[15]  O'Connor DP held that s 320(2) did not afford a power (in those circumstances) to grant leave to appear. He said:

“[26] The general proposition is that a right to be heard pursuant to s 329(b)(v) of the IR Act is to be exercised in favour of a person whose interest will be directly affected.

[27] The power vested by s 329(b)(v) of the IR Act is discretionary. The Commission has the discretion to determine whether leave to be heard should be granted and, if so, on what conditions. Section 329(b) distinguishes between parties to the proceedings and persons who, as a matter of discretion, may be heard.” (citations omitted)

42. [42]
    In Queensland Health, Robert Ollier v Q-COMP^[16] and Fully Integrated Therapies Pty Ltd v Prior and Simon Blackwood (Workers’ Compensation Regulator)^[17] Bloomfield DP held that he was bound to follow the decision in Buckley but expressed serious reservations about the reasoning which had been applied.

Does the Commission have the power to grant leave to appear in workers’ compensation appeals?

43. [43]
    The first step in answering this question is not to consider the provisions of the IR Act but to examine the WCR Act and determine what, if anything, it says about this matter.
44. [44]
    The right to appeal a decision of the Regulator is afforded by Chapter 12 Part 3 of the WCR Act. So far as it is relevant, it contains the following provisions:

45. [45]
    The reference to the IRTR in s 553 has the effect of incorporating its provisions as provisions applicable to appeals under this part of the WCR Act.  Thus, it provides that the following rules are to be applied to appeals:

    1. (a)
       Starting proceedings,
    2. (b)
       Amending proceedings,
    3. (c)
       Service (these will apply where they do not conflict with s 550 WCR Act),
    4. (d)
       The making of directions orders,
    5. (e)
       Evidence and affidavits,
    6. (f)
       Attendance notices,
    7. (g)
       Non-party production,
    8. (h)
       Specific powers and practices of the Commission, and
    9. (i)
       Miscellaneous matters.
46. [46]
    It would seem, then, that complete provision has been made for the right of appeal and the mechanics of an appeal. Why then, would one look to the IR Act for further powers? In this appeal it is because the WCR Act does not provide for the Commission to give an entity leave to appear on an appeal under the WCR Act. The BCC submits that the Commission has power under the IR Act.
47. [47]
    Section 677 of the IR Act is a provision of general application. It provides:

“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 or another Act, unless the contrary intention appears.” (emphasis added)

48. [48]
    Section 320 of the IR Act concerns the “basis of decisions of the Commission”.  Section 320(2)(b) provides the Commission with a power “in proceedings” to “inform itself on a matter it considers appropriate in the exercise of its jurisdiction.” Section 677 would, in the absence of a contrary intention, apply the provisions of s 320 of the IR Act to an appeal under the WCR Act.
49. [49]
    The analysis of these sections is complicated by the express definition of “proceedings” in s 319. It provides that, in that section, “proceedings means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.” It was argued that, because “proceedings” is defined in that way for the purposes of s 319 (and nowhere else in the IR Act) then “proceedings” in s 320 can only mean proceedings under the IR Act.  That, though, overlooks the operation of s 677. It does not purport to change the meaning of “proceedings”, it merely (in the absence of a contrary intention) engages the relevant provisions of the IR Act when the Commission exercises jurisdiction under another Act.
50. [50]
    The definition of “proceedings” in s 319 has been present in the IR Act since its enactment in 1999. It was not present in the Workplace Relations Act 1997.  In the “Explanatory Notes” which accompanied the Bill which became the IR Act, the following appears: “Clause 319 provides a definition of “proceeding” for the purpose of this clause. The clause specifies by whom a person ordered to appear or to be represented in a proceeding may be represented.”^[18]
51. [51]
    The IR Act has always contained s 677 in its present form. (It preserved s 454 of the Workplace Relations Act 1997.) But, the operation of s 677 is subject to the demonstration of a contrary intention. And because the section relates to the application of other legislation, it is appropriate to consider whether that other legislation does demonstrate a contrary intention.
52. [52]
    An examination of the provisions of Chapter 13 Part 2 of the WCR Act discloses a series of provisions which, together with the parts of the UCPR and the IRTR which are made to apply, effectively provides a complete statement of the matters necessary for the conduct of an appeal. The completeness of these provisions leads to the conclusion that “the contrary intention appears” and s 677 of the IR Act does not apply. 
53. [53]
    A question which might arise is why there was seen to be a need for the insertion of the definition of “proceedings” in s 319 when s 677 would, in the ordinary course, make the other provisions of s 319 apply. It might be said that such a definition is mere surplusage. But that would be contrary to the accepted principle that a court is not at liberty to consider any word or sentence as superfluous or insignificant. It was put this way in Project Blue Sky Inc v Australian Broadcasting Authority^[19]:

“[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”^[20] (citations omitted)

54. [54]
    The work that the definition of “proceedings” has to do is that it will apply, unlike s 677, even if a contrary intention in the other legislation can be found. Thus, s 319 would apply to workers’ compensation appeal proceedings so far as legal representation is concerned except that the provisions of s 552B make specific provision for representation. Section 552B was inserted into the WCR Act in 2005^[21]. In this case the later provision should be read as impliedly repealing s 319 of the IR Act insofar as it would otherwise apply to representation in these types of appeals.
55. [55]
    In Karas, Hall P recognised that Middleton and other cases were decided on an early version of the WorkCover Queensland Act 1996 and that it was doubtful whether a grant of leave to appear was consistent with s 549 of the WCR Act. His Honour was, with respect, correct. In the earlier legislation no provision was made for an employer to become a party to an appeal unless, of course, the employer was the appellant. That changed when s 549 of the WCR Act was amended to make specific provision for an employer to become a party to an appeal, that is, when WorkCover was the appellant.
56. [56]
    Section 549 sets out a series of events which give rise to a right to various entities to become parties to an appeal. It should be noted that the amendments which give a specific, but restricted, right to employers to become a party to an appeal were made in the light of decisions of the Commission and the Court which allowed an employer to be heard on an appeal. The amendments made to s 549^[22] added subsections 3 and 4 and, thus, gave an employer a limited right to take part in appeals. 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.
57. [57]
    The Commission does not have power to give an employer leave to appear on appeals under Chapter 13 Part 3 of the WCR Act.
58. [58]
    If I am wrong in that conclusion and there is a discretion available to allow an employer to be given leave then I have no hesitation in holding that the Vice President:

    1. (a)
       correctly set out the factors relevant to an exercise of discretion, and
    2. (b)
       correctly applied the appropriate considerations in reaching her conclusion.
59. [59]
    The appellant did not demonstrate any error in the way her Honour exercised the discretion.

The second appeal – is the BCC a “party aggrieved”?

60. [60]
    It is not.
61. [61]
    Section 561 of the WCR Act allows a “party aggrieved” to appeal to this Court. The use of the term “party” should be construed consistently. Section 549 tells a reader who the parties to an appeal are or can be. Section 561 does not allow a person who has an interest, but was not a party to the proceedings in the Commission, to appeal. The BCC has no standing to appeal this decision.
62. [62]
    In deference to the arguments raised, I will deal briefly with the submission concerning the operation of s 559 of the WCR Act.
63. [63]
    Section 559 provides:

“559 Decision of appeal body

The appeal body must give—

1. (a)
   the appeal body’s decision in a hearing in open court; and
2. (b)
   a written copy of the decision to each party.”

64. [64]
    Section 32CA of the Acts Interpretation Act 1954 relevantly provides:

“32CA Meaning of may and must etc.

…

3. (2)
   In an Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.

…”

65. [65]
    Section 559 is, through the use of the word “must”, obligatory. But, as the parties had consented to an order being made, there was no need for the Commissioner to give any reasons. Indeed, there were no reasons he could give. He simply issued the order.
66. [66]
    The question to be answered is: what effect does a breach of its provisions have? The usual approach taken by the courts is to examine the consequences that flow from requiring strict compliance with a procedure such as that in s 559. In Project Blue Sky Inc v Australian Broadcasting Authority ^[23], McHugh, Gummow, Kirby and Hayne JJ said:

“[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties void every act done in breach of the condition.”^[24]

67. [67]
    Section 559 can be traced back to s 457 of the WorkCover Queensland Act 1997 which provided that: “A tribunal must give a written decision for an application for compensation referred to it with reasons for the decision.”
68. [68]
    None of the various versions of that section which have existed since then have prescribed any consequence for the failure to comply with the section. A reasonable reading of s 559 is that it is designed to assist the parties to understand the reasoning which led to the decision. There is nothing in the WCR Act which suggests that a failure to comply results in the invalidity of that particular decision. In these circumstances, the action of the Commissioner, while not complying with the Act, did not result in the invalidation of the consent order.

Orders

69. [69]
    Each appeal is dismissed.