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- Unreported Judgment
Yousif v Workers' Compensation Regulator ICQ 10
INDUSTRIAL COURT OF QUEENSLAND
Yousif v Workers’ Compensation Regulator  ICQ 10
WORKERS’ COMPENSATION REGULATOR
25 July 2019
24 August 2018
Martin J, President
INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where a mention was conducted in preparation for an appeal hearing in the Queensland Industrial Relations Commission – where a representative of the employer of a number of proposed witnesses was given leave to object to Attendance Notices at that hearing – where, following the mention, the appellant made an application for the Deputy President to recuse himself from hearing the substantive appeal – where the Deputy President dismissed the application – whether the Deputy President erred
INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where a mention was conducted in preparation for an appeal hearing in the Queensland Industrial Relations Commission – where a representative of the employer of a number of proposed witnesses was given leave to object to Attendance Notices at that hearing – where, following the mention, the appellant made an application for the Deputy President to recuse himself from hearing the substantive appeal – where the application was dismissed – where the appeal is entirely misconceived – whether the appellant should pay the respondent’s costs of the appeal
Industrial Relations Act 2016, s 531(3)
Workers’ Compensation and Rehabilitation Act 2003, s 563
Almeida v Opportunity Equity Partners Ltd  UKPC 44, cited
Kanan v Australian Postal and Telecommunications Union  FCA 366, applied
MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland (2000) 164 QGIG 370, cited
State of Queensland v Saville (2006) 181 QGIG 277, cited
Yousif v Workers’ Compensation Regulator  ICQ 004, cited
F Abdullah as agent for the appellant
S McLeod instructed by the Workers’ Compensation Regulator for the respondent
- Mr Yousif appeals against the decision of O'Connor DP (as he then was) in which he dismissed an application that he recuse himself from the hearing of the substantive appeal.
- Mr Yousif claims to have suffered an injury in 2014 while employed at the University of Southern Queensland. In the proceedings so far, the issues to be considered in the Commission were confined by an order of Fisher C which provided that:
“1. The appeal is to determine whether an injury, namely, an aggravation of a pre-existing psychiatric injury, which occurred on 11 November 2014 meets the requirements of s 32 of the Workers’ Compensation and Rehabilitation Act 2003.
- The Public Interest Disclosure incident which occurred on 11 November 2014 and other ongoing issues that presented on that day fall within the scope of the appeal.
- Whether or not a particular event that arose prior to the decompensation was a factor in, or contributed to, the injury is not within the scope of the appeal.
- The appeal is returned to the Registry for Directions to be issued.”
- At the relevant times, Mr Yousif was a lecturer employed by the University of Southern Queensland. On 29 April 2015, he made an application for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (the Act) for a condition described as “psychological system in general, anxiety/depression combined mood”.
- The application was rejected by WorkCover on the basis that an injury within the meaning of s 32 of the Act had not been sustained. Notwithstanding that WorkCover was uncertain about the date of commencement of the appellant’s claimed injury, it waived the time limit under the Act in the appellant’s favour.
- The balance of the relevant history of this matter is set out in Yousif v Workers’ Compensation Regulator.
- On 4 December 2017 Swan DP gave the usual directions for a hearing and listed the matter for hearing for five days from 28 May to 1 June 2018 in Toowoomba.
- On 22 May 2018 O'Connor DP conducted a mention of the matter. During that mention two major matters were dealt with – the planning for the hearing of the appeal and some objections to Attendance Notices served on employees of USQ.
Planning for the hearing
- O'Connor DP and Mr Abdullah (appearing for Mr Yousif) and Mr McLeod (appearing for the Regulator) engaged in what appears to have been a conventional discussion about the time needed for the hearing. During that discussion the Deputy President expressed the view that the evidence would probably conclude within two days. After asking Mr Abdullah to have certain witnesses available at various times over the two day period on Monday and Tuesday the following exchange took place:
“HIS HONOUR: So I’ll keep Wednesday aside with the court up there, just in case something happens and we need it, but we probably don’t need the Thursday, Friday now, I wouldn’t have thought.
MR MCLEOD: I think that’s right, having regard to ‑ ‑ ‑
HIS HONOUR: Do you agree with that, Mr Abdullah?
MR ABDULLAH: Tentatively, I agree with that, your Honour.”
- The appellant had served Attendance Notices on five employees of USQ. Ms Hillman, an employee of USQ’s solicitors, appeared in order to object to the notices. She was given leave to make submissions with respect to objections to the notices. During argument Mr Abdullah asked the Deputy President: “Your Honour, may I seek clarification whether Ms Hillman can be a party to these proceedings, in the first place?” After some exchanges the Deputy President said: “She’s not appearing on the hearing. She’s appearing on the production of the attendance notices, all right?”
- Discussion then took place about the production of documents. The conclusion was that, apart from witnesses the appellant no longer required, the Attendance Notices stood and the employees were required to attend at the hearing where, it was foreshadowed, further objections would be made.
The recusal application
- Soon after the mention, the appellant sought an order that the Deputy President recuse himself from the hearing of the substantive appeal. That application was dismissed.
Grounds of appeal
- It needs to be observed at this point that Mr Abdullah, who appeared as an agent for the appellant, is a lawyer admitted to practice in Malaysia. He is, I assume, familiar with trial proceedings in Malaysia. It appears that his lack of familiarity with proceedings in, and the usual practices of, the Commission have led him to misunderstand what occurred during the mention on 22 May 2018. That, in turn, led him to the misguided application to recuse.
- Anyone familiar with practice in the Commission:
- (a)would have understood that the Deputy President was seeking to have the matter heard within a reasonable time as the issue in dispute was so confined,
- (b)would know that when days are allocated to the hearing of an appeal that is done, in part, for the orderly disposition of Commission business and the scheduling of other matters, and
- (c)would know that the assignment of days to a hearing is nothing more than an estimate which can change in accordance with the way in which the hearing is conducted.
- I turn to the grounds of appeal. They are discursive and argumentative. They (and the written submissions) do not comply with the Rules as they do not identify with any particularity the alleged errors. So far as they can be discerned, I now consider them.
Ground 1 – The Deputy President erred in dismissing Ground 1 of the application for recusal without considering whether his decision to limit the trial dates from five days to two days was unreasonable, irrational and arbitrary.
- The Deputy President did not limit the trial dates to two days. He said:
“So my preference is to condense it if [indistinct] and as it currently stands, we’ve got Tuesday and Wednesday and Thursday free. So we’ve just got to work our way through that. But I can’t see any need at all for Friday.”
- A little time after that that, the exchange set out in  above took place. I agree with the submission of the respondent that it is difficult to understand how the actions of the Deputy President were “unreasonable, irrational and arbitrary” when the appellant’s representative expressed tentative agreement with the proposal.
- The Deputy President did what is commonly done in the Commission and that was to set a timetable for the conduct and management of the hearing. That was done, in this case, with particular reference to the limited nature of the matter for determination.
- The appellant has misunderstood the character of the proceedings. Had he been familiar with the conduct of matters in the Commission he would have known that if the proper conduct of the hearing required more time then that would have been granted.
Ground 2 - The Deputy President erred in stating that there was an assumption on the part of the appellant that he had been prevented from calling evidence and that State of Queensland v Saville was not applicable.
- In the application for an order that the Deputy President recuse himself, grounds two, three and five were based on the unfounded assertion that the Deputy President had limited the length of the hearing of the appeal and was requiring the appellant to call evidence from seven witnesses in two days.
- This ground of appeal is based on the same misapprehension about the nature of the mention proceedings as has infected all of the argument of the appellant. No orders were made limiting the time for hearing or requiring the appellant to call evidence from seven witnesses in two days. The appellant simply misunderstands what occurred when the Deputy President was exploring ways in which a very limited issue could be dealt with in an efficient manner.
Ground 3 - The Deputy President erred in relying on Almeida v Opportunity Equity Partners Ltd.
- The Deputy President did not rely on Almeida. He referred to the observation of Lord Walker for the purpose of demonstrating that his interventions were motivated by a wish to understand the evidence.
- The Deputy President was, in his exchanges with the parties, attempting to understand how the evidence proposed to be called might be relevant to the issues before him. That is a common practice in both the Commission and the courts of this country. As the Deputy President rightly observed, no witness was prevented from attending nor was any direction given to suppress the appellant’s right to present or call evidence.
- This ground is misconceived.
Ground 4 - The Deputy President erred in allowing a representative of the University of Southern Queensland to appear and object to the Attendance Notices.
- The appellant again misunderstands what occurred at the mention. It was made clear by the Deputy President that he was not allowing the representative to appear in the appeal hearing. The purpose of Ms Hillman’s appearance was to make submissions about the Attendance Notices. The appellant has conflated decisions concerning the capacity of an employee to intervene in proceedings on appeal with this, separate, application to set aside Attendance Notices. The pointlessness of this ground can be demonstrated by the fact that the Attendance Notices were not set aside and remained in place. In other words, even if the Deputy President had erred, the appellant suffered no prejudice. In any event, assuming for the sake of argument the appellant is correct on this point, it is not a ground for recusal.
Ground 5 - The Deputy President failed to consider the interest of the appellant and public interest and failed to consider and impartially judge whether his overall conduct was tenable under the law and whether he had acted within the principles of equity, good conscience and the substantial merits of the case, and whether his actions were reasonable within the parameters of reasonableness under the law.
- This ground almost defies comprehension. The appellant refers to s 531(3) of the Industrial Relations Act 2016 and the Commission being guided in its decisions by equity, good conscience and the substantial merits of the case. In the written submissions in support of it, the appellant alleges that the Deputy President “did not convene the mention to manage the hearing but that the mention was orchestrated and convened at the behest of the University of Southern Queensland and the respondent.”
- There is no basis whatever for this assertion. Some latitude may be afforded to persons who appear before the Commission and suffer from a substantial deficit of understanding in the practices of the Commission, but this assertion is nothing less than scandalous.
- I have not set this ground out. It amounts to little more than a summary of the effect of the earlier grounds and, thus, has already been considered.
- The basis upon which the appellant has pursued this appeal stems from an inadequate understanding of the processes of the Commission. No orders were made confining the appellant in the manner in which he wished to pursue his appeal. All that occurred at the mention was a completely ordinary hearing dealing with the days which might be needed to conduct the appeal and to consider an application to set aside Attendance Notices.
- No grounds have been made out for the appeal. It is dismissed.
- The respondent seeks an order for costs in accordance with s 563 of the Workers’ Compensation and Rehabilitation Act 2013. It provides:
“(1) On an appeal, the industrial court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause.”
“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where it appears that, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”
- As I have said with respect to the grounds of appeal, this matter was entirely misconceived and based upon a misunderstanding of what was occurring at the mention hearing.
- The absence of any basis for the appeal means that it was instituted without reasonable cause. I order that the appellant pay the respondent’s costs of the appeal.
  QIRC 068.
  ICQ 004.
 A reference to the Toowoomba courthouse.
 (2006) 181 QGIG 277.
  UKPC 44 at .
 See MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland (2000) 164 QGIG 370, 371.
  FCA 366 at .
- Published Case Name:
Belal Yousif v Workers' Compensation Regulator
- Shortened Case Name:
Yousif v Workers' Compensation Regulator
 ICQ 10
President Martin J
25 Jul 2019