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Sharples v Workers' Compensation Regulator[2020] ICQ 20

Sharples v Workers' Compensation Regulator[2020] ICQ 20

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Sharples v Workers' Compensation Regulator [2020] ICQ 020

PARTIES:

Sharples, Kaye Leslie

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

FILE NO.:

C/2016/11

PROCEEDING:

Application

DELIVERED ON:

28 October 2020

HEARING DATES:

30 July 2020 and 19 August 2020

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The Appellant's application is dismissed

CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - APPLICATION TO INDUSTRIAL COURT - appeal against decision of Queensland Industrial Relations Commission to the Industrial Court of Queensland - no action taken by Appellant in relation to the appeal for at least one year - Appellant's application to take further action on appeal - relevant considerations in determining whether order should be made allowing Appellant to take further action on appeal - Appellant failed to discharge onus to demonstrate grounds exist to take further action on appeal - no order made allowing Appellant to take further action on appeal - Appellant's application dismissed

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011, r 4, r 6, r 9, r 230 and r 231

Uniform Civil Procedure Rules 1999, r 389

Workers' Compensation Rehabilitation Act 2003, s 32 and s 561

CASES:

Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2011] QSC 273

Barnes v Q-COMP & Hatch Pty Ltd [2017] QIRC 25

Blackwood v Pearce [2015] ICQ 012

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Davidson v Blackwood [2014] ICQ 8

du Boulay v Worrell [2009] QCA 63

Lee v Lee [2019] HCA 28; (2019) 372 ALR 383

Raabe v The Brisbane North Regional Health Authority & Or [2000] QSC 257

Sharples v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 046

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481

William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6; (1963) 109 CLR 490

APPEARANCES:

Mr T. Sharples for the Appellant

Mr S. McLeod QC directly instructed by Ms. C‑L. Godfrey of the Workers' Compensation Regulator

Reasons for Decision

Introduction

  1. [1]
    Ms Kaye Sharples taught English Communication at the Palm Beach Currumbin State High School and claimed that she suffered a psychiatric or psychological injury arising out of, or in the course of, her employment.[1]
  1. [2]
    On 2 April 2014, Ms Sharples made an application for workers' compensation, pursuant to the Workers' Compensation and Rehabilitation Act 2003 ('the Act'), to WorkCover Queensland.  WorkCover rejected that application on 6 November 2014.  On 7 November 2014, Ms Sharples applied to the Workers' Compensation Regulator to review the WorkCover decision.  On 23 January 2015, the Regulator rejected Ms Sharples' application for review.  On 12 March 2015, Ms Sharples appealed the Regulator's review decision to the Queensland Industrial Relations Commission.[2]
  1. [3]
    By decision delivered by Deputy President Kaufman on 20 April 2016, Ms Sharples' appeal was dismissed.[3] Deputy President Kaufman found that while Ms Sharples suffered a psychological or psychiatric injury that arose in the course of her employment, her employment was not a significant contributing factor to the injury, 'let alone the major significant contributing factor.'[4]
  1. [4]
    On 11 May 2016, Ms Sharples filed an application to appeal to this Court against the Commission's decision ('Ms Sharples' appeal').
  1. [5]
    Directions orders were made for the filing and serving of outlines of argument for Ms Sharples' appeal to be heard before Justice Martin, President of the Court, on 28 November 2016. The appeal did not proceed to a full hearing on 28 November 2016. The appeal was adjourned on that day so that Ms Sharples could obtain legal representation.[5] That arose because in the previous week, Ms Sharples withdrew her instructions to her counsel for the appeal.[6]
  1. [6]
    In June 2017, Ms Sharples appointed her husband, Mr Terry Sharples, as her agent for her appeal.  On 18 July 2017, Ms Sharples emailed the Registrar requesting that the appeal not be listed for two months given a recent traumatic chest injury suffered by Mr Sharples. No further communication was made by Ms Sharples or Mr Sharples, on Ms Sharples' behalf, with the Registry until 28 November 2019 when, it would appear, Mr Sharples attended the Registry enquiring about the appeal. Following that, email correspondence was exchanged between Ms Sharples and Mr Sharples with the Registry about matters concerning the appeal. By notice dated 20 December 2019, the appeal was listed for review before President Martin on 15 January 2020.
  1. [7]
    By application filed on 13 January 2020, Ms Sharples made an application to take further action on her appeal ('Ms Sharples' application'). It seems to be accepted by Ms Sharples that such an application was required because, as provided in rr 230(1) and (2) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), given that no action had been taken by Ms Sharples for at least one year, she could only take further action on her appeal with an order of the Court.
  1. [8]
    The question for my determination is whether I should grant Ms Sharples' application. 
  1. [9]
    Having regard to r 230(3) of the Rules, that question requires a consideration of:
  • the steps taken by Ms Sharples in the proceeding;
  • Ms Sharples' explanation for the circumstances of the delay;
  • the steps, including a timetable, proposed to be taken to progress the proceeding;
  • any prejudice suffered or likely to be suffered by the Regulator if the application starting the proceeding is not struck out;
  • the merits of the proceeding; and
  • why the Court should make the order despite the delay.
  1. [10]
    For the reasons that follow, I will not make an order allowing Ms Sharples to take further action in her appeal.

Further background

  1. [11]
    On 28 November 2016, President Martin stated that he had in mind that the appeal be adjourned to the next sittings of the Court in the first two weeks of February 2017.[7] His Honour then made other directions, namely, that if there were to be any changes to Ms Sharples' written appeal outline of argument, then the amended outline was to be filed and served by close of business on 16 January 2017; and if such a document was filed and served, then the Regulator was to file and serve any amended outline of argument by 23 January 2017.[8] His Honour further stated that the Registry would be in touch about a date for hearing and that the appeal was adjourned to a date to be fixed.[9]
  1. [12]
    On 6 December 2016, the Registrar forwarded to Ms Sharples a copy of the transcript of the proceedings before President Martin on 28 November 2016.[10]
  1. [13]
    No amended outline of argument was filed and served by Ms Sharples.
  1. [14]
    On 9 June 2017:
  • Ms Sharples filed a notice of appointment of agent, appointing Mr Sharples as her agent; and
  • Mr Sharples sent an email to the Registry in which he advised that a solicitor was to review Ms Sharples' matter in regard to possible representation and requested that the matter not be listed in June 2017 to give that solicitor '… an opportunity to come to grips with the matter.'[11]
  1. [15]
    Then, by email to the Registry sent on 18 July 2017, Ms Sharples forwarded a letter from Mr Sharples' doctor, addressed to the Registrar, stating that Mr Sharples had suffered a traumatic chest injury and would need eight weeks for recuperation following a thoracotomy.  Ms Sharples requested that the appeal not be listed for two months.[12] Mr Sharples' evidence was that the chest injury occurred when his wife '… stabbed me in the heart with a kitchen knife on or about 4 July 2017.'[13] By notice of listing dated 20 December 2019, Ms Sharples' appeal was listed for review before the President on 15 January 2020, and on 13 January 2020, Ms Sharples' application was filed. 
  1. [16]
    After the hearing of Ms Sharples' application on 30 July 2020, it was brought to my attention that the Court file contained email correspondence exchanged between Ms Sharples and/or Mr Sharples, and the Registry, between 28 November 2019 and 20 December 2019. This email correspondence included an email sent from Ms Sharples on 28 November 2019, attaching an application to inspect the Court file, and a later email sent on 2 December 2019, attaching an application to inspect the Commission file of the matter before Deputy President Kaufman. The subsequent correspondence concerned the Registry's advice that r 230 was enlivened because of Ms Sharples' delay in prosecuting her appeal. The last correspondence contained the notice of listing of the mention before President Martin on 15 January 2020.
  1. [17]
    It does not appear, from the Court file, that the Regulator was copied in to all the email correspondence sent by or on behalf of Ms Sharples. None of that email correspondence was included in Mr Sharples' affidavits filed in support of Ms Sharples' application. I arranged for that email correspondence to be provided to the parties and listed the matter for further hearing on 19 August 2020 so that the parties could make any further submissions in relation to that material.
  1. [18]
    At the further hearing, Mr Sharples stated that he knew about the email correspondence but did not include it in his affidavits because he did not consider it relevant. Mr Sharples also applied for an adjournment of the further hearing so as to obtain legal advice.  I rejected that application because:
  • the purpose of the re-listing was about a narrow point, namely, whether the parties wanted to make any submissions about the email correspondence on the Court file;
  • Mr Sharples explained that he knew of those emails but did not consider them relevant;
  • the late stage in the proceeding at which Mr Sharples said he wanted to obtain legal advice; and
  • the fact that the decision the subject of Ms Sharples' appeal and of Ms Sharples' application was made in 2016.
  1. [19]
    The Regulator submitted that the email correspondence did not affect its previous submissions.

The Rules and relevant principles

  1. [20]
    Rule 230 provides:

230 Lapse of proceeding after at least 1 year’s delay

  1. (1)
    This rule applies if-
  1. (a)
    an application[14] starting a proceeding has been filed; and
  1. (b)
    no action has been taken in relation to the application for at least 1 year since the last action was taken in the application.
  1. (2)
    A party may only take further action on the application with an order of the court, commission or registrar.
  1. (3)
    An application for an order under subrule (2) must be in the approved form and state the following-
  1. (a)
    the steps taken in the proceeding;
  1. (b)
    an explanation for the circumstances of the delay;
  1. (c)
    the steps (including a timetable) proposed to be taken to progress the proceeding;
  1. (d)
    any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out;
  1. (e)
    the merits of the proceeding;
  1. (f)
    why the court, commission or registrar should make the order despite the delay.
  1. [21]
    An applicant must show there is good reason for excepting the particular proceedings from the general prohibition imposed in r 230(1) of the Rules.[15] As was stated by Deputy President O'Connor in Barnes v Q-Comp & Hatch Pty Ltd,[16] in determining an application under r 230(2) of the Rules, the factors to which regard should be had are those referred to in r 230(3).[17]
  1. [22]
    Ms Sharples, in her present application, was represented by her husband as her agent. In support of her application, Ms Sharples relied upon two affidavits sworn by her husband.

The steps taken by Ms Sharples in the proceeding

  1. [23]
    Mr Sharples refers to the fact that on 28 November 2016, when President Martin adjourned the appeal, his Honour stated that he had in mind that the matter be adjourned to the next sittings of the Court in the first two weeks of February 2017 and that the Registry would be in touch about a date for hearing.[18]  Mr Sharples then states that when the matter was not listed for February 2017, he and his wife were relieved because they were trying to obtain legal assistance and needed more time.[19]
  1. [24]
    Mr Sharples then refers to his email to the Registry sent on 9 June 2017 and to Ms Sharples' email to the Registry sent on 18 July 2017.[20]
  1. [25]
    Mr Sharples submitted that these emails were not actions or steps within the meaning of r 230 because they were not steps taken in complying with orders of the Court.  The Regulator submitted those emails were actions or steps within the meaning of r 230 because they concerned the hearing and determination of the appeal.
  1. [26]
    In relation to the other emails exchanged between Ms Sharples or Mr Sharples and the Registry from 28 November 2019 to 20 December 2019, Mr Sharples submitted that he did not see that material as relevant because it was merely communication to find out what had happened to Ms Sharples' appeal and did not amount to steps in her appeal.
  1. [27]
    The last action or step taken by Ms Sharples in 2017 was in her email sent on 18 July 2017.  Nothing else was done by Ms Sharples in relation to her appeal until Mr Sharples' attendance at the Registry on 28 November 2019 and the subsequent email correspondence between Ms Sharples or Mr Sharples, and the Registry, commencing on 28 November 2019.
  1. [28]
    The purpose of the Rules, as a whole, is to provide for the just and expeditious disposition of the business of the Court at a minimum of expense.[21]  Rule 230 only permits a party to take further action on an application by order of the Court where no action has been taken after one year. Clearly, the purpose of this rule is to ensure parties take timely steps for the expeditious determination of applications made to the Court.
  1. [29]
    Having regard to the purpose of r 230, the 'action' contemplated in rr 230(1)(b) and 230(2) of the Rules is, in my view, action taken in moving the matter towards judgment or the relief sought[22] or an act or activity that has the characteristic of carrying the cause or action forward.[23] For these reasons, I conclude that that same meaning should also be attributed to the noun 'steps' in rr 230(3)(a) and (c) of the Rules. Such a construction is strengthened when regard is had to r 230(3)(c) which refers to '… steps (including a timetable) proposed to be taken to progress the proceeding.'
  1. [30]
    For these reasons, I accept the Regulator's submissions that the emails sent by or on behalf of Ms Sharples, on 9 June 2017 and 18 July 2017, were both 'action' within the meaning of r 230(1)(b).
  1. [31]
    However, in the absence of full argument, I am not prepared to accept that Ms Sharples' applications on 28 November 2019 and on 3 December 2019, seeking inspections of the Court and Commission files, were both 'action' within the meaning of r 230(1)(b). This is because it is not apparent to me that they were acts or activities that had the characteristic of carrying the cause or action (Ms Sharple's appeal) forward.

Ms Sharples' explanation for the circumstances of the delay

  1. [32]
    Mr Sharples deposes that:
  • little, if any, thought was given to the appeal '… over this time', which appears to be around the time of his chest injury;[24]
  • he and his wife were not aware of the one year period contained in r 230(1)(b) of the Rules;[25]
  • at no stage, other than when the Registry forwarded a copy of the transcript from the appeal hearing on 28 November 2016, '… did the Registrar or any of the Registry officers make any contact or respond to the two emails' sent on 9 June 2017 and 18 July 2017;[26]
  • no show cause notice was forwarded to Mr and Ms Sharples, or any notification, that the appeal had been terminated or lapsed under r 230 of the Rules;[27] and
  • no communication was received from the Regulator.[28]
  1. [33]
    In oral submissions, Mr Sharples submitted that:
  • Ms Sharples had taken all steps in the proceeding in that no directions issued by the Court were missed;
  • the Registry did not list the appeal for the first sittings of the Court in February 2017 as foreshadowed by President Martin on 28 November 2016;
  • it was up to the Registry to list the appeal for hearing; and
  • because the Registry did not list the matter after February 2017, Ms Sharples should be permitted to proceed with her appeal.
  1. [34]
    Mr Sharples' submissions are not meritorious.  There are a number of reasons for this.
  1. [35]
    First, there is no requirement for the Registrar to communicate with an applicant or an appellant to get them to take steps to advance their proceeding.  Rule 9(2) of the Rules provides that the person who has carriage of the proceeding must take all necessary steps in the proceeding until the proceeding is discontinued by leave of the Court or finally determined by the Court.  Similarly, there is no such obligation on the part of a respondent, in this case, the Regulator.
  1. [36]
    Secondly, there is nothing in r 230 that requires the Registrar to advise an appellant of the effect of r 230.  Even where a self-represented person wishes to litigate, he or she is bound by the rules of the Court, as any other litigant, because those rules exist to facilitate efficient, fair and cost-effective litigation.[29]
  1. [37]
    Thirdly, there is nothing in r 230 that requires the Registrar to forward a show cause notice to an appellant.  The issuing of a show cause notice is a discretion of the Registrar under r 231 of the Rules.
  1. [38]
    Fourthly, Ms Sharples' email to the Registry sent on 18 July 2017 contained a letter from Mr Sharples' General Practitioner, Dr Melwyn Dawson of the Cornerstone Medical Centre in Tweed Heads. That letter from Dr Dawson was addressed directly to the Registrar and Dr Dawson expressly stated that he would update the Registrar in eight weeks about Mr Sharples' progress and fitness to represent Ms Sharples.[30]
  1. [39]
    There is no evidence of any such further update or communication being provided by Dr Dawson to the Registrar or provided by Mr Sharples or Ms Sharples, from Dr Dawson, to the Registrar.  There was no further action taken by Mr Sharples or Ms Sharples in relation to Ms Sharples' appeal and there was no further communication to the Registrar from either Mr Sharples or Ms Sharples, in relation to Ms Sharples' appeal, until Mr Sharples attended the Registry on 28 November 2019 seeking to inspect the Court file.
  1. [40]
    Mr Sharples then makes the claims that:
  • there was no action or further action that Ms Sharples was required to or could take and that the action was entirely within the Registrar's or Registry's jurisdiction; and
  • for those reasons, r 230 does not apply to Ms Sharples' appeal and, in the alternative, if r 230 did apply, it would be '… procedurally grossly unfair to a litigant in person and unconstitutional.'[31]
  1. [41]
    These submissions cannot be accepted.  There are two reasons for this.
  1. [42]
    First, it is a matter for Ms Sharples to take steps to prosecute her appeal and not that of the Registrar, particularly in circumstances, as referred to above, where communication from Mr Sharples' doctor, sent to the Registrar on 18 July 2017, was that a further update would be provided by that medical practitioner, in eight weeks, about Mr Sharples' progress and fitness.  Even though President Martin indicated on 28 November 2016 that the Registry would be in touch with Ms Sharples about a date for hearing, the practical effect of the email from Ms Sharples on 18 July 2017, attaching the report from Dr Dawson, was that it was for Ms Sharples to inform the Registry as to when Mr Sharples would be able to represent her in the appeal and, therefore, when her appeal could be heard.
  1. [43]
    Secondly, as referred to above:
  • r 230 of the Rules applies to appeals made to this Court under s 561 of the Act; and
  • self-represented litigants are bound by the rules of the Court as any other litigant so as to achieve efficiency, fairness and cost effectiveness. 
  1. [44]
    For these reasons, Mr Sharples' claims that it would be procedurally unfair or unconstitutional for r 230 to apply to Ms Sharples' appeal are misconceived.

The period from 18 July 2017 to April 2018

  1. [45]
    Mr Sharples' evidence is that:
  • the reason they could not go on with the appeal within the one year period (from 18 July 2017) was because his wife had stabbed him in the heart with a kitchen knife on or about 4 July 2017 and '… after that their marriage went through hell.';[32]
  • the injury he sustained nearly caused his death, he had to undergo a sternotomy, it took a long time to recover his health and fitness, and 'Little if any thought was given to the appeal matter over this time';[33] and
  • in April 2018, Ms Sharples had to undergo a second hip operation, they were '… homeless for most of this time living under canvas in a tent and life was a constant struggle to survive.'[34]
  1. [46]
    The Regulator submitted that, even though the expected appeal hearing in February 2017 never eventuated, Ms Sharples took no steps until the emails were sent to the Registrar on 8 June 2017 and 18 July 2017; and then there is no explanation from Ms Sharples as to why no action was taken between around October 2017 and April 2018.
  1. [47]
    One explanation given by Mr Sharples, as to why Ms Sharples took no action between about October 2017 and April 2018, was his state of health.  In my view, this is not an adequate explanation.  There are two reasons for this.
  1. [48]
    First, it was clear in the email to the Registrar from Mr Sharples' doctor that a further update would be provided about Mr Sharples' health in relation to him representing his wife.  No such further advice was provided.
  1. [49]
    Secondly, there has been no medical evidence led from Mr Sharples that tends to prove that, because of his state of health, he was incapable of representing his wife after the eight week period following his chest injury and surgery.

The period after April 2018

  1. [50]
    The Regulator submitted that there is no explanation why Ms Sharples was not in a position to prosecute her appeal from April 2018.
  1. [51]
    In oral submissions, the Regulator submitted that Ms Sharples has failed to provide any adequate explanation for the above-mentioned delays, and that the absence of such an adequate explanation is fatal to the exercise of my discretion to allow her to take further action on her appeal.
  1. [52]
    No precise explanation has been given as to why Ms Sharples took no action, in relation to her appeal, after April 2018. No evidence has been given as to the time Ms Sharples was incapacitated following her second hip operation. 
  1. [53]
    The other explanations were the homelessness of Mr and Ms Sharples, Mr Sharples' state of health and the personal relationship difficulties they were having.  In oral submissions, Mr Sharples submitted that life had got on top of them. 
  1. [54]
    However, Mr Sharples, in his sworn evidence, has been vague about the precise date they became homeless and the period of time for which they were living in a tent.  I accept that homelessness may be an adequate explanation as to why Ms Sharples could not prosecute her appeal.  However, Mr Sharples is vague about the period of time he and Ms Sharples were homeless.
  1. [55]
    Leaving aside the eight week period referred to in Dr Dawson's letter to the Registrar dated 14 July 2017, there is no clear evidence about the period of time Mr Sharples was incapacitated to the extent that he was unable to take any step, on behalf of Ms Sharples, to represent her in prosecuting her appeal.  There is no clear evidence of the length of time any other personal circumstances affecting Mr and Ms Sharples prevented either of them from taking any step to prosecute Ms Sharples' appeal. 
  1. [56]
    In my view, Mr Sharples has not adequately explained why no action was taken by Ms Sharples in relation to her appeal after April 2018.

The steps, including a timetable, proposed to be taken to progress the proceeding

  1. [57]
    Mr Sharples did not address this matter in his affidavits.

Any prejudice suffered or likely to be suffered by the Regulator if the application starting the proceeding is not struck out

  1. [58]
    Having regard to the facts of this matter, as referred to earlier in these reasons for decision, I accept the Regulator's submission that the delays in Ms Sharples taking action in relation to her appeal is because of her inaction and not that of anyone else.
  1. [59]
    However, the Regulator, does not point to any prejudice that it would suffer if Ms Sharples' appeal proceeded.

The merits of the proceeding

  1. [60]
    It is not always easy to determine the prospects of success in applications of the present kind[35] unless the outcome of the proceeding is fairly clear, for example where an applicant's (or appellant's) case appears doomed to fail.[36]
  1. [61]
    Mr McLeod QC, on behalf of the Regulator, submitted that the Court is in a position to make an assessment of Ms Sharples' prospects of appeal.  This was because there had been the trial of Ms Sharples' claim for compensation, a decision by Deputy President Kaufman and appeal outlines of argument filed by the parties.
  1. [62]
    In some cases, the subject of the proceeding may permit an assessment to be made of an applicant's prospects.[37] In my view, this is such a case for the reasons advanced by the Regulator. 
  1. [63]
    Mr Sharples, in his oral submissions, submitted that the evidence did not support Deputy President Kaufman's conclusions.
  1. [64]
    Mr McLeod QC submitted that:
  • it was hard to define the precise factual error allegedly made by Deputy President Kaufman; and
  • because Deputy President Kaufman's reasons for rejecting Ms Sharples' appeal at first instance concerned matters of credit and, having regard to the high threshold required for an appellate court to intervene in relation to an alleged error of fact on that basis, Ms Sharples was unable to articulate that she had reasonable prospects of success in her appeal.
  1. [65]
    Before Deputy President Kaufman, Ms Sharples alleged that her injury was sustained as a result of an accumulation of stresses and pressures during the teaching periods of 2012 and 2013, specifically, the unruly behaviour of several students in classes 11D in 2012 and 12D in 2013.[38] The Deputy President noted that in her original application to WorkCover, Ms Sharples stated that her injury occurred on 28 March 2014.[39] It was not in dispute that Ms Sharples suffered a personal injury of a psychological or psychiatric nature.[40]
  1. [66]
    Because Ms Sharples was later represented by counsel in place of Mr Sharples, there was a change in the way Ms Sharples argued her case in respect of the date of her alleged injury.  After the evidence had closed, and by the time of making final submissions, Ms Sharples' counsel submitted the injury was the result of an accumulation of events in the classroom culminating in an incident on 24 October 2013.[41]
  1. [67]
    This became an issue for Deputy President Kaufman because of an amendment made to the definition of 'injury' in s 32 of the Act which had operative effect during the time Ms Sharples said she suffered her injury. The change in the definition of 'injury' was that whereas previously, a worker's employment had to be a significant contributing factor to the injury, following the amendment, the employment had to be the major significant contributing factor to the injury.[42]
  1. [68]
    Deputy President Kaufman held that the issues for determination were:
  • whether Ms Sharples suffered an injury; and
  • if so, whether Ms Sharples' injury arose out of or in the course of her employment; and
  • if the date of Ms Sharples' injury was 24 October 2013, whether her employment was the major significant contributing factor to the injury; or
  • if Ms Sharples' injury occurred prior to 15 October 2013, whether her employment was a significant contributing factor to the injury.[43]
  1. [69]
    By the time of final submissions, Ms Sharples had abandoned any claim that her injury had a causal connection with management action.[44]
  1. [70]
    Ms Sharples led evidence from a Mr Theodore of Living Well Psychology[45] and from Dr Adem Can of the Currumbin Clinic.[46]
  1. [71]
    Deputy President Kaufman found, in respect of Mr Theodore's evidence, that:
  • Mr Theodore's evidence was that Ms Sharples' decompensation occurred as a result of a letter she received from the school on 27 March 2014;[47]
  • the behaviour in the classrooms in 2012 and 2013 created in Ms Sharples a psychological vulnerability such that if further stress or trauma occurred, she would have been more vulnerable to decompensate;[48] and
  • this raised the possibility that Ms Sharples may not have been suffering from a personal injury until the receipt of the letter on 27 March 2014,[49] which was consistent with the stated date in Ms Sharples' workers' compensation claim.[50]
  1. [72]
    The evidence was that the 27 March 2014 letter concerned Ms Sharples' alleged unsatisfactory performance.[51] The further evidence was that Ms Sharples met with a representative of the school on that day and an action plan was developed, but on the following day Ms Sharples declined to participate in the action plan.[52]
  1. [73]
    Deputy President Kaufman found that Ms Sharples informed Dr Can of several stresses to which she had been subjected, namely, students' inappropriate behaviour, not having enough support from the workplace and from the school, a work claim application, in relation to a leg ulcer, being declined, not being able to finance a hospital day program for extra treatment and the March 2014 alleged unsatisfactory performance letter.[53]
  1. [74]
    Deputy President Kaufman then referred to the evidence before him that there was no mention of psychological symptoms to Ms Sharples' doctors despite her many visits between 24 October 2013 and approximately 23 January 2014, when her General Practitioner, Dr Edward Lyle, referred her to Dr Can.[54]
  1. [75]
    Deputy President Kaufman also found that the Regulator was justified in questioning Ms Sharples' credit and that Ms Sharples gave her evidence in a self‑serving manner and that she exaggerated incidents.  Deputy President Kaufman raised the issue that because the opinions of Mr Theodore and Dr Can were based upon facts as reported by Ms Sharples, if she had misled either of them, their opinions should be accorded less weight.[55] 
  1. [76]
    Deputy President Kaufman concluded that having regard to the evidence given by Ms Sharples as to the history of events leading to her making her workers' compensation application, the medical evidence and the change in the way the case was put in relation to the alleged date of injury, that meant that he was unable to be satisfied that Ms Sharples' employment was a significant contributing factor to her injury, let alone the major significant contributing factor.[56]
  1. [77]
    Ms Sharples' grounds of appeal to this Court included that:
  • the Commission ought to have found that her employment was the major significant contributing factor to her suffering from her disorder;
  • the Commission erred in assessing the medical evidence; and
  • the Commission ought to have found that the relevant stressors were employment related.
  1. [78]
    In her appeal outline of argument to this Court, Ms Sharples contended that:
  • the Commission misapprehended the effect of the medical evidence and was wrong to view the medical evidence suggesting she may not have suffered any disorder until 27 March 2014;[57]
  • the Commission was wrong to place little weight upon the medical evidence, apparently on the basis that the experts relied on self-reporting by her;[58]
  • the Commission's doubts over her credit as a witness, on some matters, were not material to the medical opinions in the Commission and did not identify any material aspect of her self-reporting that was relevantly fallacious or unreliable;[59] and
  • in the absence of any significant non-employment stressor, the Commission ought to have found that her employment was the major significant contributing factor to her suffering from her disorders.[60]
  1. [79]
    The Regulator contended, in its appeal outline of argument, that:
  • having regard to the decision of the President in Davidson v Blackwood,[61] Ms Sharples had not been able to demonstrate that the Commission's conclusion had been the result of some legal, factual or discretionary error; and
  • Ms Sharples' submissions misapprehended the role of safely establishing the evidential basis upon which expert medical opinion is necessarily predicated which, it submitted, assumed even more important claims for psychological or psychiatric injury.
  1. [80]
    Ms Sharples' appeal is to be heard by way of rehearing on the evidence and proceedings before the Commission, unless the Court orders additional evidence be heard.[62]  In an appeal by way of rehearing, the powers of an appellate court are exercisable only where an appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order the subject of the appeal is the result of some legal, factual or discretionary error.[63]
  1. [81]
    An appellate court is bound to conduct a real review of the evidence given at first instance and the reasons for judgment to determine whether the tribunal or court below has erred in fact or law.  Appellate restraint with respect to interference with a tribunal's findings, unless they are glaringly improbable or contrary to compelling inferences, is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the tribunal as a result of seeing and hearing them give their evidence.  That includes findings of secondary facts which are based on a combination of those impressions and other inferences from primary facts.[64]
  1. [82]
    In Deputy President Kaufman's decision, he refers to Ms Sharples' credit and raised the issue that if Ms Sharples had misled either Mr Theodore or Dr Can, then their opinions should be given less weight.[65]  However I cannot find, in the decision, where Deputy President Kaufman determined that their opinions should be given less weight for that reason.[66]
  1. [83]
    In my view, the issues that led to Deputy President Kaufman dismissing Ms Sharples' appeal concerned the way that Ms Sharples ultimately ran her case and the medical evidence about the date of Ms Sharples' decompensation.
  1. [84]
    Ms Sharples' case, as finally put, was that her injury occurred on 24 October 2013 '… and that stressor one was the "case" for the appellant.' [67] Stressor one consisted of events between 11 May 2012 and 24 October 2014 concerning the alleged, unruly classroom behaviour of particular male adolescent students in classes 11D and 12D.[68]
  1. [85]
    Deputy President Kaufman was of the view that Mr Theodore's evidence, that the unsatisfactory performance was among the main reasons Ms Sharples decompensated, seemed to raise the possibility that Ms Sharples may not have been suffering from a personal injury until receipt of that performance letter on 27 March 2014.[69] Deputy President Kaufman also noted that was consistent with the manner in which Mr Sharples (as opposed to her counsel) ran the case and was consistent with the stated date of injury on her original workers' compensation claim.[70]
  1. [86]
    Deputy President Kaufman also referred to Dr Can's evidence and found that Dr Can listed several stressors, as reported to him by Ms Sharples, namely, students' inappropriate behaviour, not having enough support from the workplace and from the school, a work claim application in relation to a leg ulcer being declined in December 2013, not being able to finance a hospital day program for extra treatment and the March 2014 letter.[71]
  1. [87]
    Deputy President Kaufman concluded:

[81]  Having regard to the evidence, particularly that of the appellant as to the history of events leading to the making of her workers' compensation application, as well as the medical evidence, it is evident that Ms Sharples was subject to several stressors during her employment. These have been referred to in the preceding paragraphs. The change in the way the case was put, especially the alleged date of the injury, also adds to the uncertainty, and to my inability to be satisfied that Ms Sharples employment is a, or the major, significant contributing factor to her injury.

…

[83]  A difficulty with the manner in which the case was ultimately put on behalf of the appellant, that the case is an accumulation case, not a decomposition case, is that the evidence, medical and lay, was premised on the basis that the injury the subject of the workers' compensation claim occurred on 27/28 March 2014. Although there is evidence to support the submission that Ms Sharples was stressed at various time during 2012 and 2013 I am not able to discern if, or when, that stress crossed the threshold and became a psychiatric or psychological injury. There is scant evidence of marked or prolonged or significant distress or a significant impairment of functioning such as would allow me to find that her injury had been suffered during 2012 and 2013. It was not submitted, nor, I suspect, could it have been, that being subjected to stress is of itself an injury.

  1. [88]
    Ms Sharples' case was that she suffered her injury on 24 October 2013 due to her alleged exposure to unruly male students in classes 11D and 12D between 11 May 2012 and 24 October 2013. However, the medical evidence was not such that Deputy President Kaufman was persuaded that Ms Sharples' employment was a significant or the major significant contributing factor to her injury as she contended in her final submissions. It seems to me, having regard to the case put by Ms Sharples and the medical evidence to which Deputy President Kaufman referred, that the Deputy President's findings were open on the evidence.
  1. [89]
    There were other grounds of appeal and appeal submissions that went to the issue of management action, specifically, that ' … the Commission did not consider the s 32(5)(a) exclusion defence.' [72] However, the issue of the relevance of any management action was abandoned by Ms Sharples at the hearing before Deputy President Kaufman.  In her appeal, Ms Sharples is bound by the way she conducted her case before Deputy President Kaufman and she cannot depart from that to attempt to demonstrate error on that basis.[73] Such a principle applies to appeals by rehearing.[74]
  1. [90]
    For these reasons, by having regard to the material to which I referred to above, my assessment is that Ms Sharples has poor prospects of success in relation to her appeal.

Why the Court should make the order despite the delay

  1. [91]
    The Regulator submits that Ms Sharples has failed to demonstrate why her appeal should be allowed to proceed in circumstances where the delay has been due to her own inactions. 
  1. [92]
    The Regulator further submits that even taking into account periods of Ms Sharples' ill‑health, and that of her husband, Ms Sharples has failed to prosecute her appeal, seeks to blame others for that fact, and, in those circumstances, there is no warrant for the Court to exercise its discretion in a favourable manner and allow her proceedings to continue.
  1. [93]
    There is merit in these submissions.
  1. [94]
    For the reasons I have given earlier, following the appeal being adjourned on 28 November 2016, Ms Sharples took minimal positive steps, up to 18 July 2017, to agitate her appeal. Even if Ms Sharples' assumption was that the Registry would list the matter for hearing after 18 July 2017, she has not clearly or adequately explained why she took no steps to agitate her appeal between 18 July 2017 and April 2018 and then from April 2018. Ms Sharples seeks, without any basis, to blame the Registrar and the Registry for her delays.
  1. [95]
    Further, Ms Sharples has provided no steps she proposes to take to progress her appeal.
  1. [96]
    I am not persuaded that I should exercise my discretion and make an order allowing Ms Sharples to take further action on her appeal.  This is due to:
  • the failure of Ms Sharples, over a reasonably long period of time, to take action to prosecute her appeal;
  • Ms Sharples' failure to give an adequate explanation for the delay in taking action in relation to her appeal;
  • Ms Sharples' failure to state the steps proposed to be taken to progress her appeal; and
  • Ms Sharples' poor prospects of success for her appeal.
  1. [97]
    In my view, these matters outweigh the fact that there is no real prejudice to the Regulator if the appeal proceeded. For all these reasons, I am not persuaded that there is a good reason to except Ms Sharples' appeal from the general prohibition imposed by r 230(1) of the Rules.

Conclusion

  1. [98]
    The onus was on Ms Sharples to demonstrate, by having regard to the factors referred to in r 230(3) of the Rules, that she should be allowed to take further action on her appeal. For the reasons given above, Ms Sharples has failed to discharge that onus.
  1. [99]
    Ms Sharples' application is dismissed.

Order

  1. [100]
    I make the following order:

The Appellant's application is dismissed.

Footnotes

[1] Sharples v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 046 ('Sharples'), [1] (Deputy President Kaufman).

[2] Sharples (n 1) [2].

[3] Ibid [86].

[4] Ibid [84].

[5] T 1-5, ll 4-6.

[6] T 1-2, ll 8-15.

[7] T 1-5, ll 10-11.

[8] T 1-5, ll 21-25.

[9] T 1-6, ll 16-17.

[10] Exhibit 1, para. 22.

[11] Exhibit 1, para. 17 and exhibit C.

[12] Exhibit 1, para. 18 and exhibit C.

[13] Exhibit 3, para. 21.

[14] An application to appeal made under s 561 of the Workers' Compensation and Rehabilitation Act 2003 against a decision of the Commission, made under that Act, is such an application: Industrial Relations (Tribunal) Rules 2011, r 4(1)(a) and Blackwood v Pearce [2015] ICQ 012, [17] (Martin J, President).

[15] William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6; (1963) 109 CLR 490, 496 (McTiernan, Kitto, Taylor and Owen JJ) and Barnes v Q-Comp & Hatch Pty Ltd Barnes [2017] QIRC 025 ('Barnes'), [31] (Deputy President O'Connor).

[16] Barnes (n 15).

[17] Ibid [30].

[18] Exhibit 1, para. 15.

[19] Exhibit 1, para. 16.

[20] Exhibit 1, paras. 17-18.

[21] Industrial Relations (Tribunals) Rules 2011 r 6.

[22] Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2011] QSC 273 ('Artahs'), [9] (Applegarth J) concerning the noun 'step' in the equivalent, but not identical, provision in r 389(2) of the Uniform Procedure Rules 1999.

[23] Raabe v The Brisbane North Regional Health Authority & Ors [2000] QSC 257, [9] (Holmes J) concerning r 389 of the Uniform Procedure Rules 1999.

[24] Exhibit 1, paras. 19-21.

[25] Exhibit 3, para. 21.

[26] Exhibit 1, para. 22.

[27] Exhibit 1, para. 23.

[28] Exhibit 1, para. 24.

[29] du Boulay v Worrell [2009] QCA 63, [69] (Muir JA) – in the context of the Uniform Civil Procedure Rules 1999.

[30] Exhibit 1, exhibit C, third page.

[31] Exhibit 1, para. 25.

[32] Exhibit 3, para. 21.

[33] Exhibit 1, paras. 19 and 21.

[34] Exhibit 1, para. 21.

[35] Barnes (n 15) [58] (Deputy President O'Connor).

[36] Artahs (n 22) [24] (Applegarth J) in the context of r 389 of the Uniform Civil Procedure Rules 1999.

[37] Ibid [24]-[42].

[38] Sharples (n 1) [4].

[39] Ibid [5].

[40] Ibid [53].

[41] Ibid [5].

[42] Sharples (n 1) [16]-[17].

[43] Ibid [19].

[44] Ibid [20].

[45] Ibid [28].

[46] Ibid [37].

[47] Ibid [57].

[48] Ibid.

[49] Ibid.

[50] Ibid [74].

[51] Sharples (n 1) [45].

[52] Ibid [46].

[53] Ibid [76].

[54] Ibid [78].

[55] Ibid [65].

[56] Ibid [81]-[84].

[57] Appellant's outline of argument dated 4 November 2016 ('the Appellant's outline'), para. 20.

[58] Ibid para. 22.

[59] Ibid para. 23.

[60] Ibid para. 26.

[61] [2014] ICQ 8 ('Davidson').

[62] Workers' Compensation Rehabilitation Act 2003 s 561(3).

[63] Davidson (n 61) [10]-[13] (Martin J, President).

[64] Lee v Lee [2019] HCA 28; (2019) 372 ALR 383, [55] (Bell, Gageler, Nettle and Edelman JJ).

[65] Sharples (n 1) [65]-[66].

[66] Ibid [67]-[80].

[67] Ibid [14].

[68] Ibid [51].

[69] Ibid [73].

[70] Ibid [74].

[71] Ibid [76].

[72] The Appellant's outline, para. 27.

[73] University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481, 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). In that case their Honours relevantly stated: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

[74] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson Brennan and Dawson JJ).

Close

Editorial Notes

  • Published Case Name:

    Sharples v Workers' Compensation Regulator

  • Shortened Case Name:

    Sharples v Workers' Compensation Regulator

  • MNC:

    [2020] ICQ 20

  • Court:

    ICQ

  • Judge(s):

    Member Merrell DP

  • Date:

    28 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2011] QSC 273
2 citations
Jump To
Cite 1 - [2011] QSC 273
Cite 2 - [2011] QSC 273
Barnes v Q-Comp [2017] QIRC 25
2 citations
Jump To
Cite 1 - [2017] QIRC 25
Cite 2 - [2017] QIRC 25
Coulton v Holcombe [1986] HCA 33
2 citations
Jump To
Cite 1 - [1986] HCA 33
Cite 2 - [1986] HCA 33
Coulton v Holcombe (1986) 162 CLR 1
2 citations
Jump To
Cite 1 - (1986) 162 CLR 1
Cite 2 - (1986) 162 CLR 1
Davidson v Blackwood [2014] ICQ 8
3 citations
Jump To
Cite 1 - [2014] ICQ 8
Cite 2 - [2014] ICQ 8
Cite 3 - [2014] ICQ 8
du Boulay v Worrell [2009] QCA 63
2 citations
Jump To
Cite 1 - [2009] QCA 63
Cite 2 - [2009] QCA 63
Lee v Lee [2019] HCA 28
2 citations
Jump To
Cite 1 - [2019] HCA 28
Cite 2 - [2019] HCA 28
Lee v Lee [2019] 372 ALR 383
2 citations
Jump To
Cite 1 - [2019] 372 ALR 383
Cite 2 - [2019] 372 ALR 383
Raabe v The Brisbane North Regional Health Authority [2000] QSC 257
4 citations
Jump To
Cite 1 - [2000] QSC 257
Cite 2 - [2000] QSC 257
Cite 3 - [2000] QSC 257
Cite 4 - [2000] QSC 257
Sharples v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 46
29 citations
Jump To
Cite 1 - [2016] QIRC 46
Cite 2 - [2016] QIRC 46
Cite 3 - [2016] QIRC 46
Cite 4 - [2016] QIRC 46
Cite 5 - [2016] QIRC 46
Cite 6 - [2016] QIRC 46
Cite 7 - [2016] QIRC 46
Cite 8 - [2016] QIRC 46
Cite 9 - [2016] QIRC 46
Cite 10 - [2016] QIRC 46
Cite 11 - [2016] QIRC 46
Cite 12 - [2016] QIRC 46
Cite 13 - [2016] QIRC 46
Cite 14 - [2016] QIRC 46
Cite 15 - [2016] QIRC 46
Cite 16 - [2016] QIRC 46
Cite 17 - [2016] QIRC 46
Cite 18 - [2016] QIRC 46
Cite 19 - [2016] QIRC 46
Cite 20 - [2016] QIRC 46
Cite 21 - [2016] QIRC 46
Cite 22 - [2016] QIRC 46
Cite 23 - [2016] QIRC 46
Cite 24 - [2016] QIRC 46
Cite 25 - [2016] QIRC 46
Cite 26 - [2016] QIRC 46
Cite 27 - [2016] QIRC 46
Cite 28 - [2016] QIRC 46
Cite 29 - [2016] QIRC 46
University of Wollongong v Metwally (1985) 59 ALJR 481
2 citations
Jump To
Cite 1 - (1985) 59 ALJR 481
Cite 2 - (1985) 59 ALJR 481
University of Wollongong v Metwally (No 2) (1985) HCA 28
2 citations
Jump To
Cite 1 - (1985) HCA 28
Cite 2 - (1985) HCA 28
William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6
2 citations
Jump To
Cite 1 - [1963] HCA 6
Cite 2 - [1963] HCA 6
William Crosby & Co Pty Ltd v The Commonwealth of Australia (1963) 109 C.L.R., 490
2 citations
Jump To
Cite 1 - (1963) 109 C.L.R., 490
Cite 2 - (1963) 109 C.L.R., 490
Workers' Compensation Regulator v Pearce [2015] ICQ 12
2 citations
Jump To
Cite 1 - [2015] ICQ 12
Cite 2 - [2015] ICQ 12

Cases Citing

Case NameFull CitationFrequency
Bale v Workers' Compensation Regulator [2024] QIRC 2353 citations
Plumb v Rockhampton Regional Council (No. 3) [2025] QIRC 1892 citations
State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 102 citations
1

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