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Tuesley v Workers' Compensation Regulator[2021] ICQ 8

Tuesley v Workers' Compensation Regulator[2021] ICQ 8

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Tuesley v Workers’ Compensation Regulator [2021] ICQ 008

PARTIES:

MAUREEN TUESLEY

(appellant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2021/04

PROCEEDING:

Appeal

DELIVERED ON:

9 June 2021

HEARING DATE:

12 April 2021

MEMBER:

Davis J, President

ORDER/S:

  1. The appeal is struck out.
  2. The matter is returned to Industrial Commissioner Hartigan to complete the hearing of the appeal from the decision of the Regulator.
  3. By 4.00 pm on 23 June 2021, the parties exchange submissions on costs.
  4. By 4.00 pm on 30 June 2021, the parties exchange reply submissions on costs and state in the reply submissions whether they wish to make oral submissions on the question of costs.
  5. In the absence of an indication by any party of the wish to make oral submissions on costs, the costs will be determined on the written submissions and without oral hearing.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant made a claim for compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (the WCR Act) – where the claim was rejected by WorkCover – where the appellant sought review of that decision by the Workers’ Compensation Regulator (the Regulator) – where the Regulator rejected the review – where the appellant appealed the decision of the Regulator to the Queensland Industrial Relations Commission (QIRC) – where, during the hearing before the Industrial Commissioner, a question arose as to the date the injury was suffered by the appellant – where, by consent, the Industrial Commissioner determined that issue during the hearing but before finally determining the appeal – where the Industrial Commissioner determined the date of injury to be 14 May 2021 – where the appellant appealed that decision – where the Regulator did not oppose the appeal – where the substantive hearing was adjourned to allow the appellant an opportunity to pursue any available avenues of appeal – where, during the hearing of the appeal in the Industrial Court of Queensland, the competency of the appeal arose as an issue – where Counsel for the Regulator submitted the appeal was not competent on the basis that the appeal had not been finally determined and therefore, there was no final appealable decision – where Counsel for the appellant submitted that the appeal was competent pursuant to s 557 of the Industrial Relations Act 2016 (the IR Act) – whether there is a statutorily provided avenue of appeal – whether the appeal is competent

Acts Interpretation Act 1954

Industrial Relations Act 1999

Industrial Relations Act 2016, s 407, s 413, s 424, s 557,         s 561

Industrial Relations (Tribunals) Rules 2011

Justices Act 1886 s 4

Uniform Civil Procedure Rules 199,9 ch 7, ch 9

Workers’ Compensation and Rehabilitation Act 2003, s 32,     s 164, s 540, s 541, s 542, s 543, s 544, s 545, s 546, s 546A, s 548, s 549,  s 553, s 554, s 558, s 560A, s 561, s 562, s 680, s 685, s 686, s 687, s 689, s 691, s 696, s 697

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013

Workplace Health and Safety Act 1995

CASES:

Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, cited

Commissioner of the State Savings Bank of Victoria v Rogers Bros Motorcycle Agency Pty Ltd [1954] VLR 149, considered

Du Preez v Chelden [2020] ICQ 008, cited

Henderson v Taylor [2007] 2 Qd R 269, cited

Jawatts Bakery v Lang [1999] QIC 66; 162 QGIG 408, considered

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, cited

NQEA Australia Pty Ltd v Dare (No 2) [2003] ICQ 61; (2004) 175 QGIG 17, considered

R v Long (No 1) [2002] 1 Qd R 662, cited

Rozenes QC and Director of Public Prosecutions (DPP) (Vic) v Beljaje, Szajntop, Kunz, Lambert and Judge Kelly [1995] 1 VLR 533, cited

Sankey v Whitlam (1978) 142 CLR 1, followed

Walsh v Law Society of New South Wales (1999) 198 CLR 73, cited

Workers’ Compensation Regulator v Glass [2020] QCA 133, followed

COUNSEL:

A Stobie of Counsel for the appellant

P B O'Neill of Counsel for the respondent

SOLICITORS:

McNamara Law for the appellant
Workers’ Compensation Regulator for the respondent

  1. [1]
    Maureen Tuesley made claim for compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (the WCR Act).  That claim was rejected by WorkCover.  Ms Tuesley sought review of that decision by the Workers’ Compensation Regulatory Authority, now called the Workers’ Compensation Regulator (the Regulator).  That review was rejected and Ms Tuesley appealed that decision to the Queensland Industrial Relations Commission (the QIRC). 
  2. [2]
    The appeal to the QIRC came before Industrial Commissioner Hartigan for hearing.  During the hearing of that appeal, a question arose as to the date the injury was suffered.  That has significance, especially to the Industrial Commissioner who was required to make rulings in relation to evidence relevant to the appeal.  The Industrial Commissioner was invited by the parties to determine that issue during the hearing, but before finally determining the appeal.  It was envisaged that once that determination was made, further decisions could be made as to the scope of inquiry on the appeal. 
  3. [3]
    As she was invited to do, Industrial Commissioner Hartigan determined the date of the injury as 14 May 2012.  Reasons for that determination were given ex tempore, but the reasons are detailed and precise. 
  4. [4]
    After making the ruling and giving reasons, counsel appearing for Ms Tuesley then said:

“Commissioner, I must apply for an adjournment on the basis that the appellant will file an appeal from that decision.”

  1. [5]
    The reference to “that decision” was, clearly enough, a reference to the finding made by the Industrial Commissioner that the date of injury was 14 May 2012.
  2. [6]
    Counsel for the Regulator did not oppose that course.  As will become apparent, Ms Tuesley has no right of appeal from an interlocutory factual finding made in the course of the hearing.  It was not for the Industrial Commissioner to consider the competency or otherwise of any appeal from her when Ms Tuesley sought an adjournment to appeal and the Regulator did not oppose that course.  Unsurprisingly, the Industrial Commissioner adjourned the hearing to allow Ms Tuesley to pursue any appeal rights she may have had.
  3. [7]
    An application to appeal was then filed on Ms Tuesley’s behalf.
  4. [8]
    It is expressed to be “an application to appeal to the Industrial Court of Queensland against a decision of the … Commission … given on 17 February 2021”.[1]  That is a reference to the finding made by the Industrial Commissioner.  The grounds of appeal were stated as:

“That the Commission erred in law, in:-

  1. determining date of injury as a single issue preliminary to judgement in the matter;
  1. determining a single date of injury when there was uncontroverted evidence establishing injury sustained over a period of time; and
  1. failing to take into account, or properly take into account, evidence relating to the further period (after the single date of injury defined in the order) over which the injury was sustained.”
  1. [9]
    Ground 1 is curious given that making a separate determination was exactly what the Industrial Commissioner was asked to do.
  2. [10]
    On 12 April 2021, the appeal came before me.  In the course of hearing full argument on the appeal, I raised the question as to whether the appeal was competent.  Mr O'Neill of Counsel for the Regulator then submitted that it wasn’t.  He submitted that as the QIRC had not finally determined the appeal from the Regulator, there was no decision which could be the subject of appeal to this Court.  Mr Stobie submitted that s 557 of the Industrial Relations Act 2016 (the IR Act) authorised the appeal.  It was obvious that Mr Stobie was taken by surprise by the suggestion that the appeal was incompetent and I gave the parties leave to file and exchange further written submissions on the issue.
  3. [11]
    Further submissions were produced and this is my ruling on the competency of the appeal.

Basic principles

  1. [12]
    For this Court to have jurisdiction to hear and determine an appeal from the QIRC’s finding, there must be a statutorily provided avenue of appeal.[2]
  2. [13]
    Given Australia’s constitutional arrangements, decisions of inferior courts (such as the QIRC) must be amenable to review, at least where they have acted beyond jurisdiction.[3]  In the absence of any avenue of appeal provided by statute, that review is conducted pursuant to the inherent supervisory powers possessed by the superior court of the relevant jurisdiction.[4]
  3. [14]
    This Court is a superior court of record whose President is a judge of the Supreme Court of Queensland.[5]  However, in the absence of some relevant statutory provision, the supervisory jurisdiction rests with the Supreme Court of Queensland, not in individual judges sitting in some other court.[6]
  4. [15]
    Section 424 of the IR Act bestows upon the Industrial Court of Queensland its jurisdiction and powers.  By s 424(1)(e):

424 Jurisdiction and powers

  1. (1)
    The court may—

  1. (e)
    if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process—
  1. (i)
    the commission and magistrates exercise their jurisdictions according to law; and
  1. (ii)
    the commission and magistrates do not exceed their jurisdictions. …”
  1. [16]
    That subsection clearly enough vests in this Court the supervisory powers of the Supreme Court over the Industrial Magistrates Court and the QIRC when, as in the present case, the Court is constituted by the President.
  2. [17]
    It is neither necessary nor desirable to explore in the present case the parameters of s 424(1)(e) of the IR Act or the powers therein recognised.  Here, Ms Tuesley has proceeded by way of appeal, not by way of application for prerogative order.  The granting of relief to correct an interlocutory order of an inferior court or tribunal is clearly discretionary.[7]  No party has turned their mind to any discretionary considerations and therefore, not made submissions about such issues.
  3. [18]
    Therefore, the sole issue here is whether there is a statutory jurisdiction vested in this Court to entertain an appeal from a mixed finding of fact and law made in the proceedings before final determination of the appeal by the QIRC.

The Workers’ Compensation and Rehabilitation Act 2003

  1. [19]
    The WCR Act was enacted in 2003 but, relevantly here, quite extensively amended in 2013, by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013.  Section 680 of the WCR Act (after its amendment in 2013) contains various transitional provisions.  By s 680 where, as here, the worker sustains an injury before the commencement of the amendments, the Act, as it was before the amendments, continues to apply.  Most of the critical sections have changed little if at all other than to replace references to “the Authority” with “the Regulator”. The Regulator (created by the 2013 amendments) takes all responsibilities and sits in the place of the Authority (abolished by the 2013 amendments) in relation to claims concerning injuries which occurred before the 2013 amendments.[8]
  2. [20]
    Critical to the scheme established by the WCR Act is the definition of “injury”.  That is contained in s 32.  That provides:

32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
  1. (2)
    However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies.
  1. (3)
    Injury includes the following—
  1. (a)
    a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
  1. (i)
    a personal injury;
  1. (ii)
    a disease;
  1. (iii)
    a medical condition if the condition becomes a personal injury or disease because of the aggravation;
  1. (c)
    loss of hearing resulting in industrial deafness  if the employment is a significant contributing factor to causing the loss of hearing;
  1. (d)
    death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
  1. (e)
    death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
  1. (f)
    death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
  1. (4)
    For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
  1. (b)
    the worker’s expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Authority or an insurer in connection with the worker’s application for compensation”.[9]
  1. [21]
    Ms Tuesley’s injury is “a psychiatric or psychological disorder”.  Such an injury is not an “injury” which is compensable if it occurred in the circumstances identified by s 32(5), namely if it resulted from reasonable management action taken in a reasonable way. That is an issue in this case before the QIRC.
  2. [22]
    The WCR Act provides for compensation to be provided in various ways, including the payment of damages.
  3. [23]
    By Chapter 8, WorkCover Queensland is established.  It performs the role of the insurer of workers.[10]  As part of its functions, WorkCover must decide to allow or reject an application for compensation.  Chapter 7 establishes the Regulator (formerly the Authority).  One of the functions of the Regulator is “to undertake reviews of decisions under Chapter 13, part 2 and manage appeals under Chapter 13, part 3.[11]
  4. [24]
    Chapter 13 is entitled “Reviews and appeals”.  Relevantly here:
  • Part 1 - deals with internal reviews by WorkCover of its decision;
  • Part 2 - deals with the review by the Regulator of decisions of WorkCover;
  • Part 3, Division 1 - deals with appeals from the Regulator[12] to the QIRC;
  • Part 3, Division 1A - deals with appeals from the QIRC to this Court.
  1. [25]
    Ms Tuesley, as already observed, made a claim to WorkCover which was refused.  She sought review by the Regulator.
  2. [26]
    Section 540 applies Part 2 of Chapter 13 to the following (relevantly here):

540 Application of pt 2

  1. (1)
    This part applies to the following—
  1. (a)
    a decision by WorkCover—
  1. (i)
    not to give an exemption from insuring under this Act under section 49; or
  1. (ii)
    to set the premium payable under a policy under section 54; or
  1. (iii)
    to issue a reassessment premium notice under section 56; or
  1. (iv)
    to refuse to waive or reduce a penalty under section 57, 66, 109A or 229; or
  1. (v)
    to refuse to reassess a default assessment under section 58; or
  1. (vi)
    to refuse to waive or reduce additional premium under section 64; or
  1. (vii)
    to waive or not to waive section 131(1) or (2); or
  1. (viii)
    to allow or reject an application for compensation; or

(viiia) to allow or reject an application under section 132A or 132B; or

  1. (ix)
    to terminate or suspend payment of compensation; or

(ixa) to increase or decrease a weekly payment of compensation under chapter 3; or

  1. (x)
    to refuse to vary an entitlement under section 171, 172 or 173; or

(xi) to apportion compensation under chapter 3, part 11; or

(xii) to allow or refuse an entitlement under section 212, 216 or 219; or

(xiia) under section 232M, that a worker is not entitled to treatment, care and support payments; or

(xiiaa) to refuse a worker’s entitlement to be referred to an accredited rehabilitation and return to work program of WorkCover under section 220(3); or

(xiiab) that a worker is no longer entitled to participate in an accredited rehabilitation and return to work program of WorkCover under section 220(4); or

(xiib) to refuse a service request, or approve a service request on conditions, under section 232P; or

(xiic) to refuse a payment request under section 232R; or

(xiid) that, under section 232S, WorkCover is not satisfied that a worker’s serious personal injury is likely to continue to meet the chapter 4A eligibility criteria for the injury after the interim period ends; or

(xiie) that, under section 232S, a worker’s entitlement to treatment, care and support payments ends before the end of the interim period; or

(xiif) not to accept liability to make treatment, care and support payments under section 232ZD; or

(xiig) to amend approved services for an eligible worker under section 232ZG; or

(xiih) to suspend, under section 232ZH, a worker’s entitlement to treatment, care and support payments for all or part of a period the worker is absent from Australia; or

(xiii) for section 239A(4) that a claimant has or has not sustained an injury; or

(xiv) to refuse an examination application under section 325C; …” (emphasis added)

  1. [27]
    Section 541 of the WCR Act provides as follows:

541 Who may apply for review

A claimant, worker or an employer aggrieved by a decision or the failure to make a decision may apply for review.” (emphasis added).

  1. [28]
    Sections 542, 543 and 544 are machinery provisions.  Section 545 relevantly provides:

545 Review of decision or failure to make a decision

  1. (1)
    The Regulator[13] must, within 25 business days after receiving the application, review the decision and decide (the review decision) to
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the decision-maker with the directions the Regulator considers appropriate.

(1A) The Regulator may act under subsection (1)(d) only if the Regulator—

  1. (a)
    has considered information that was not available to, or known by, the decision-maker when the decision-maker made its decision; or
  1. (b)
    believes on reasonable grounds that the decision-maker did not have satisfactory evidence or information to make its decision; or
  1. (c)
    believes on reasonable grounds that the decision-maker has not observed natural justice in making its decision.
  1. (2)
    If an application is about the failure to make a decision, the Regulator may—
  1. (a)
    make the decision (also a review decision) after considering the information before it; or
  1. (b)
    return the matter to the decision-maker with the directions the Regulator considers appropriate.
  1. (3)
    The decision-maker to whom the directions are given must comply with the directions.
  1. (4)
    The Regulator may extend the time in subsection (1)—
  1. (a)
    with the applicant’s consent, to allow the applicant a right of appearance or to make representations under section 543; or
  1. (b)
    with the applicant’s consent, to obtain information under section 544; or
  1. (c)
    if the applicant applies to the Regulator in writing for time to give the Regulator further information.
  1. (5)
    If the Regulator acts under subsection (1)(b) or (c) or (2)(a), the decision is taken for this Act, other than this part, to be the decision of the decision-maker.” (emphasis added).
  1. [29]
    Section 546 concerns the giving of notice of the review decision.
  2. [30]
    Section 546A provides:

546A Matter returned to decision-maker

  1. (1)
    This section applies if the Regulator returns a matter under section 545 to a decision-maker.
  1. (2)
    The decision-maker must, within the time specified by the Regulator—
  1. (a)
    make a decision; and
  1. (b)
    give the applicant and the Regulator written notice of the fresh decision, including—
  1. (i)
    the reasons for the decision; and
  1. (ii)
    the applicant’s rights of review and appeal; and
  1. (c)
    if the decision relates to a matter mentioned in section 540(1)(a)(vii) to (xiv) or (1)(b) or (c), give a copy of the fresh decision to the claimant or worker and to the employer.” (emphasis added).
  1. [31]
    Therefore, the “decision” of WorkCover is the decision to “reject an application for compensation”.[14]  That is the “decision” about which Ms Tuesley is “aggrieved”[15] and which she then referred to the Regulator for review. 
  2. [32]
    Upon the completion of the review, the Regulator was obliged to take one of the courses of action prescribed by s 545(1).  Here, the Regulator confirmed “the decision”[16] which is “the decision” to “reject [the] application for compensation”.[17] 
  3. [33]
    Part 3, Division 1 applies, relevantly here, to “a review decision”.[18]  That term is defined in s 545 as the decision made by the Regulator upon a review.
  4. [34]
    Section 549 provides:

549 Who may appeal

  1. (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).
  1. (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.
  1. (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
  1. (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).
  1. (4)
    If the appellant is WorkCover, an employer may, if the employer wishes, be a party to the appeal.” (emphasis added).
  1. [35]
    That section provides that an appeal may be made against decisions of the Regulator and the insurer (here WorkCover).  That is because, by s 548(b), there is an avenue for appeals against decisions of the insurer which are not “reviewable decisions” and which have therefore, not been the subject of a review decision by the Regulator.
  2. [36]
    Section 550 is a machinery provision, as are ss 552, 552A and 552B.  Section 551 is not relevant here.
  3. [37]
    Section 553 provides:

553 Application of Uniform Civil Procedure Rules 1999 and Industrial Relations (Tribunals) Rules 2011

  1. (1)
    The Uniform Civil Procedure Rules 1999, chapter 7, part 2 and chapter 9, part 4 and the Industrial Relations (Tribunals) Rules 2011 apply to an appeal under this division with necessary changes.
  1. (2)
    However, if there is an inconsistency between a provision of the rules mentioned in subsection (1) and a provision of this division, the provision of this division prevails to the extent of the inconsistency.”
  1. [38]
    Chapter 7, Part 2 of the Uniform Civil Procedure Rules 1999 concerns disclosure and  Chapter 9, Part 4 concerns alternative dispute resolution.  None of the provisions are relevant here. 
  2. [39]
    Since Industrial Commissioner Hartigan heard the appeal, the Industrial Relations (Tribunals) Rules 2011 have been extensively amended.  There is nothing in either version of the Rules which could affect the present jurisdictional issue. 
  3. [40]
    Sections 554, 555, 556, 557 and 559 are machinery provisions.  Section 558 provides:

558 Powers of appeal body

  1. (1)
    In deciding an appeal, the appeal body may
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. (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.
  1. (3)
    Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.” (emphasis added).
  1. [41]
    What can be seen is that the appeal to the QIRC is an appeal against “the decision” of the Regulator.  The decision of the Regulator here is the decision made pursuant to s 545.  The powers of the QIRC are as prescribed by s 558, which are to “confirm”, “vary” or “set aside” that “decision”. 
  2. [42]
    As to the appeal to this Court, ss 560A, 561 and 562 are critical.  They provide:

560A Application of div 1A

This division applies to the following decisions

  1. (a)
    a decision of the industrial commission under chapter 4, part 6;
  1. (b)
    a decision of an industrial magistrate or the industrial commission under division 1.[19]

561 Appeal to industrial court

  1. (1)
    A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  1. (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.
  1. (4)
    The court’s decision is final.

562 Powers of industrial court

  1. (1)
    In deciding an appeal, the industrial court may—
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision.
  1. (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.
  1. (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” (emphasis added).
  1. [43]
    The “decision of … the Industrial Commission”,[20] to which Division 1A applies, is a decision made under s 558.  There isn’t yet a decision made by the QIRC under s 558 in the present case.
  2. [44]
    Under s 561, the party who may appeal to the Court is one “aggrieved by … the Industrial Commission’s decision”.  Again, that is the decision made under s 558.  Ms Tuesley cannot be “aggrieved” by a decision that has not yet been made. 
  3. [45]
    The powers of this Court are prescribed by s 562 to “confirm”, “vary” or “set aside” the “decision”.  Consistently, the “decision” is one made under s 558.  As there is, as yet, no such decision, there is nothing to “confirm”, “vary” or “set aside”.
  4. [46]
    Section 561(2) applies the IR Act to the appeal brought under the WCR Act.  There is nothing in the WCR Act itself which confers jurisdiction on this court to entertain an appeal from Industrial Commissioner Hartigan’s finding.  Because s 561(2) affectively incorporates the provisions of the IR Act into the appeal, it is necessary to consider the provisions of that Act.

The Industrial Relations Act 2016

  1. [47]
    Part 1 of Chapter 11 concerns this Court.  Section 424 provides:

424 Jurisdiction and powers

  1. (1)
    The court may—
  1. (a)
    perform all functions and exercise all powers given to the court under this Act or another Act; and
  1. (b)
    hear and decide, and give its opinion on, a matter referred to it by the commission; and
  1. (c)
    hear and decide an offence against this Act, unless this Act provides otherwise; and
  1. (d)
    hear and decide appeals from an industrial magistrate’s decision in proceedings for—
  1. (i)
    an offence against this Act; or
  1. (ii)
    recovery of damages, or other amounts, under this Act; and
  1. (e)
    if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process—
  1. (i)
    the commission and magistrates exercise their jurisdictions according to law; and
  1. (ii)
    the commission and magistrates do not exceed their jurisdictions.
  1. (2)
    In proceedings, the court may—
  1. (a)
    make the decisions it considers appropriate, irrespective of specific relief sought by a party; and
  1. (b)
    give directions about the hearing of a matter.
  1. (3)
    The court’s jurisdiction is not limited, by implication, by a provision of this Act or another Act.
  1. (4)
    The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise.”
  1. [48]
    By s 424(1)(a), this Court has the jurisdiction given to it by the IR Act or “another Act”.  The WCR Act is “another Act”.  As already observed, the WCR Act bestows appellate jurisdiction upon the court.  The IR Act also bestows appellate jurisdiction upon the court. 
  2. [49]
    Section 557 of the IR Act provides:

557 Appeal from commission

  1. (1)
    The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (3)
    However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
  1. (4)
    If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
  1. (5)
    In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.”

  1. [50]
    The term “decision” is defined in the IR Act as follows:

decision means—

  1. (a)
    a decision of the court, the commission, a magistrate or the registrar; or
  1. (b)
    an award, declaration, determination, direction, judgment, order or ruling; or
  1. (c)
    an agreement approved, certified, or amended by the commission and an extension of the agreement; or
  1. (d)
    a bargaining award made or amended by the commission.”
  1. [51]
    It may be that in making the ruling as to the date of the injury, the Industrial Commissioner has made a “decision” as defined in the IR Act.  I frankly doubt that is so but should proceed on the basis that it may be.  Therefore, if s 557 applies to the current proceedings, there is a right of appeal against that decision from the QIRC to this court. 
  2. [52]
    The interaction between the WCR Act and the IR Act was recently considered by Sofronoff P sitting alone in the Court of Appeal in Workers’ Compensation Regulator v Glass.[21]
  3. [53]
    Ms Glass was a teacher.  She was injured in an incident when she was accompanying her students to a waterfall during a school trip to Vanuatu.  Her claim to WorkCover was rejected.  She sought review pursuant to s 542 of the WCR Act.  The Regulator confirmed the decision pursuant to s 545(1)(a).  She sought review by the QIRC who confirmed the Regulator’s decision. She then appealed to this Court pursuant to s 561.  President Martin J confirmed the decision of the QIRC pursuant to s 562(1)(a). 
  4. [54]
    Section 561(4) of the WCR Act (set out earlier in these reasons) provides that there is no appeal from this Court’s disposal of an appeal to it:  “The court’s decision is final”.  Notwithstanding s 561(4) of the WCR Act, Ms Glass appealed to the Court of Appeal and sought to rely on s 557 of the IR Act as providing an avenue of appeal.  She argued that if s 561 of the WCR Act applied the IR Act to appeals to the Industrial Court, s 554 was picked up so as to provide an alternative avenue of appeal to the Court of Appeal. 
  5. [55]
    Section 554 provides:

554 Appeal from court or commission in certain circumstances

  1. (1)
    A person aggrieved by a decision of the court, or the full bench constituted by the president and 2 or more other members, may appeal to the Court of Appeal on the ground of—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, a person aggrieved by a decision of the full bench constituted by the president and 2 or more other members may appeal against the decision to the Court of Appeal, with the Court of Appeal’s leave, on a ground other than—

(a)  error of law; or

(b)  excess, or want, of jurisdiction.

  1. (3)
    However, subsections (1) and (2) do not apply to a person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
  1. (4)
    If a person may appeal a decision of the full bench under both subsections (1) and (2), the person may only appeal against the decision with the Court of Appeal’s leave on a ground mentioned in subsection (2).”
  1. [56]
    After considering the history of the IR Act, his Honour observed:

[12] Prior to 2016 it was plain that any limitation on appeals from decisions of the Industrial Court in matters arising under the Industrial Relations Act 1999 were to be found in that Act. Likewise, any limitation upon appeals to the Court of Appeal in relation to decisions of the Industrial Court in matters arising under the Workers’ Compensation and Rehabilitation Act were to be found in that Act and not in the Industrial Relations Act 1999.

[13] The only reason for having s 561(2) engage the provisions of the Industrial Relations Act 1999 was that the legislature wished to confer jurisdiction upon an existing tribunal to determine disputes arising under the workers’ compensation legislation. The workers’ compensation legislation invoked the provisions of the industrial relations legislation because it was that legislation that created a court, constituted it and made provision for procedure within it. However, each Act made provision for whether, how and to what extent there could be any appeal from decisions made under the two Acts. When the new Industrial Relations Act 2016 was passed, in this respect, nothing changed.

[14] The subject matter of s 561(2) of the Workers’ Compensation and Rehabilitation Act is the ‘appeal’ that is referred to in it. The section therefore applies the Industrial Relations Act 2016 to the proceeding by which a decision of the industrial commission under chapter 4 part 6 of the Workers’ Compensation and Rehabilitation Act or a decision of an industrial magistrate or the industrial commission under division 1 of that Act is challenged in the Industrial Court. Those are the “decisions” mentioned in ss 560A and 561(1). Consequently, the provisions of the Industrial Relations Act 2016 that can be applied are those that apply to the ‘appeal’ to the Industrial Court. Once the ‘appeal’ has been concluded by a decision of the Industrial Court, there is no longer any ‘appeal’. The rights of the parties that supported the appeal have been merged in the decision. Section 561(4) of the Workers’ Compensation and Rehabilitation Act makes the resulting ‘decision’, which is the outcome of the ‘appeal’, final.”

  1. [57]
    His Honour was concerned with the operation of s 554 and appeals to the Court of Appeal from this court.  The present case concerns a step down in the hierarchal ladder:  an appeal from the QIRC to this Court.
  2. [58]
    His Honour’s logic applies equally, though, to the interaction between the WCR Act provisions and s 557.  It is the WCR Act which provides and limits the appeal to the court from the QIRC on matters under the WCR Act.  Section 561(2) of the WCR Act does not operate to extend the category of “decision” which, by s 561(1) read in the context of the scheme of appeals provided by the WCR Act, can be the subject of appeal to this court.
  3. [59]
    Mr Stobie of Counsel, appearing for Ms Tuesley, made a number of written submissions.
  4. [60]
    Firstly, Mr Stobie submitted that the ruling is a “final determination of one of the issues in the appeal” to the QIRC.  Therefore, he submitted it is subject to appeal to this Court as authorised by s 561(1) of the WCR Act.
  5. [61]
    In support of that submission, Mr Stobie relied on Jawatts Bakery v Lang[22] and he sought to distinguish Commissioner of the State Savings Bank of Victoria v Rogers Bros Motorcycle Agency Pty Ltd.[23]  On another submission, to which I will turn soon, Mr Stobie relied upon NQEA Australia Pty Ltd v Dare (No 2).[24] 
  6. [62]
    All three of those decisions concern the competence of appeals from interlocutory orders.  All three decisions turn on the construction of the particular provisions which provided an avenue of appeal.
  7. [63]
    Jawatts Bakery is a decision of President Hall sitting in this Court.  A prosecution on complaint under the Justices Act 1886 alleging an offence against the Workplace Health and Safety Act 1995 was conducted before an Industrial Magistrate.  During the course of the proceedings in the Industrial Magistrates Court, leave was sought to amend the complaint.  The amendment was allowed and the defendant appealed against the order allowing amendment.  By the time the appeal was lodged, there had been no determination of the complaint.  The respondents submitted that the appeal was incompetent and that submission was rejected. 
  8. [64]
    The appeal was authorised by s 164(3) of the Workplace Health and Safety Act.  That provided:

“… a person dissatisfied with the decision of an industrial magistrate … who desires to appeal must appeal to the Industrial Court.”

  1. [65]
    His Honour held, by reference to provisions of the Workplace Health and Safety Act, the Acts Interpretation Act 1954 and the Justices Act, that the word “decision” in s 164(3) of the Workplace Health and Safety Act was as defined in s 4 of the Justices Act, namely “decision includes a committal for trial or for sentence, a conviction, order, order of dismissal or striking out or other determination”. 
  2. [66]
    With the definition of “decision” as wide as the one provided by s 4 of the Justices Act, it is hardly surprising that his Honour held that an order amending a complaint was a “decision” which could be subject to appeal under s 164(3) of the Workplace Health and Safety Act.
  3. [67]
    In so holding, President Hall distinguished Commissioner of the State Savings Bank of Victoria v Rogers Bros Motorcycle Agency Pty Ltd.[25]  There, an objection to evidence was the subject of an appeal before the final determination of the trial.  Dean J considered a provision granting a right of appeal from an “order”.  The term “order” was defined as including “order, adjudication, decision, grant or refusal of any application and also a determination of whatsoever kind made by justices or any court of petty sessions and also any refusal by justices or any court of petty sessions to hear or determine any information or complaint or to entertain any application”.  Dean J considered that some finality must attach to a decision for it to be an “order” and that a ruling on evidence in the course of a trial did not have that quality. Therefore, the appeal was incompetent.
  4. [68]
    After considering the judgment of Dean J in Rogers Bros Motorcycle Agency, President Hall, in Jawatts Bakery, referred to the terms of s 164(3) of the Workplace Health and Safety Act and held “the right to appeal is not limited to decisions finally disposing of the entire matter before the Industrial Magistrate”.  Of course, in drawing that conclusion, his Honour relied upon what he held to be the proper construction of the relevant provisions of the Workplace Health and Safety Act, the Acts Interpretation Act and the Justices Act.
  5. [69]
    For the reasons I have explained, the “decision”, which may be the subject of an appeal from the QIRC to the court under the WCR Act, is the decision of the QIRC under s 558 to “confirm”, “vary” or “set aside” the decision of the Regulator made under s 545.  The determination of the date of the injury is not such a “decision”.
  6. [70]
    Further, Mr Stobie submitted that Ms Tuesley had a right to appeal Industrial Commissioner Hartigan’s determination of the date of the injury pursuant to s 557 of the IR Act.  He then submitted that the meaning of the word “decision” in s 557 is as defined in the Schedule.  I have previously set out both s 557 and the definition of “decision” in the Schedule.  That submission should be rejected for the reasons I explained when considering Workers’ Compensation Regulator v Glass.[26]
  7. [71]
    Mr Stobie then relied on NQEA Australia Pty Ltd v Dare (No 2).[27]  That was another case concerning an appeal from an Industrial Magistrate.  The appeal was governed by the Industrial Relations Act 1999, the predecessor of the IR Act.  The term “decision” was defined in the Industrial Relations Act 1999 similarly to its definition in the IR Act.  The Industrial Magistrate determined a question of admissibility of evidence and a party appealed that determination.  President Hall followed Commissioner of the State Savings Bank of Victoria v Rogers Bros Motorcycle Agency and held that the appeal was incompetent.
  8. [72]
    Mr Stobie, though, by analogy, argued that s 557 must pick up the definition of “decision” in the IR Act.  That much can be accepted.  He then submitted that Commissioner of the State Savings Bank of Victoria v Rogers Bros Motorcycle Agency ought to be distinguished because the ruling of the Industrial Commissioner went beyond questions of admissibility of evidence and was a “decision” so defined. 
  9. [73]
    It was, sensibly, not argued by Mr Stobie that the definition of “decision” in the dictionary to the IR Act applied to s 561 of the WCR Act.  His argument depended upon the availability to Ms Tuesley of the avenue of appeal provided by s 557 of the IR Act.  Workers’ Compensation Regulator v Glass[28] is authority against that proposition and the submission ought to be rejected.

Disposition

  1. [74]
    For the reasons I have explained, Industrial Commissioner Hartigan has not made a “decision” as identified in s 561 of the WCR Act.  It therefore, follows that no appeal can be mounted pursuant to that section.  It is s 561 of the WCR Act, not s 557 of the IR Act, which gives any right of appeal in proceedings if the QIRC is conducting an appeal from the decision of the Regulator under the WCR Act.
  2. [75]
    It follows that the appeal is incompetent.  The appropriate course is to strike out the appeal and return the matter to Industrial Commissioner Hartigan to complete the hearing of the appeal.
  3. [76]
    On the question of costs, orders should be made allowing the parties to make written submissions and for costs to be determined on those written submissions unless leave is given to make oral submissions on costs.

Orders

  1. The appeal is struck out.
  2. The matter is returned to Industrial Commissioner Hartigan to complete the hearing of the appeal from the decision of the Regulator.
  3. By 4.00 pm on 23 June 2021, the parties exchange submissions on costs.
  4. By 4.00 pm on 30 June 2021, the parties exchange reply submissions on costs and state in the reply submissions whether they wish to make oral submissions on the question of costs.
  5. In the absence of an indication by any party of the wish to make oral submissions on costs, the costs will be determined on the written submissions and without oral hearing.

Footnotes

[1]  Emphasis added.

[2]  See cases such as Henderson v Taylor [2007] 2 Qd R 269, R v Long (No 1) [2002] 1 Qd R 662 and Du Preez v Chelden [2020] ICQ 008.

[3]Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.

[4]Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 at 200, Rozenes QC and Director of Public Prosecutions (DPP) (Vic) v Beljaje, Szajntop, Kunz, Lambert and Judge Kelly [1995] 1 VLR 533 at 571, R v Long (No 1) [2002] 1 Qd R 662 at [53] and Sankey v Whitlam (1978) 142 CLR 1 at 23.

[5] Industrial Relations Act 2016, ss 407 and 413.

[6] Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [64]-[67].

[7] Sankey v Whitlam (1978) 142 CLR 1 at 25-26.

[8]  Sections 685, 686, 687, 689, 691, 696, 697.

[9]  Statutory notes removed.

[10]  See Chapter 8, Part 1, Division 1.

[11]  Section 330(1)(e) pre-2013; s 327(1)(f) post-2013 amendments.

[12]  And also from Industrial Magistrate but not relevant here.

[13]  Previously the Authority.

[14]  Section 540(1)(a)(viii).

[15]  Section 541.

[16]  Section 545(1)(a).

[17]  Section 540(a)(viii).

[18]  Section 548.

[19]  That is Division 1 of Part 3 of Chapter 13.

[20]  Section 560A(b).

[21]  [2020] QCA 133.

[22]  [1999] QIC 66; 162 QGIG 408.

[23]  [1954] VLR 149.

[24]  [2003] ICQ 61; (2004) 175 QGIG 17.

[25]  [1954] VLR 149.

[26]  [2020] QCA 133.

[27]  [2003] ICQ 61; (2004) 175 QGIG 17.

[28]  [2020] QCA 133.

Close

Editorial Notes

  • Published Case Name:

    Tuesley v Workers' Compensation Regulator

  • Shortened Case Name:

    Tuesley v Workers' Compensation Regulator

  • MNC:

    [2021] ICQ 8

  • Court:

    ICQ

  • Judge(s):

    Davis J, P

  • Date:

    09 Jun 2021

Appeal Status

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