Shaw v Workers' Compensation Regulator
[2022] ICQ 24
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- Unreported Judgment
- Shaw v Workers' Compensation Regulator[2022] ICQ 24
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Shaw v Workers' Compensation Regulator[2022] ICQ 24
Shaw v Workers' Compensation Regulator[2022] ICQ 24
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Shaw v Workers' Compensation Regulator [2022] ICQ 024 |
PARTIES: | Shaw, Trent (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO.: | C/2022/5 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 9 August 2022 |
HEARING DATE: | 16 June 2022 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – APPLICATION IN EXISTING PROCEEDINGS – APPLICATION TO SET ASIDE APPLICATION TO APPEAL – Appellant was formerly employed as the Principal of the Kin Kin State School – Appellant suffered a psychiatric injury – Appellant made application for workers' compensation in respect of that injury – Appellant appealed to the Queensland Industrial Relations Commission against review decision of the Respondent to confirm the rejection of the Appellant's application for workers' compensation by WorkCover Queensland – Appellant's appeal to Queensland Industrial Relations Commission dismissed – Appellant appealed decision of Queensland Industrial Relations Commission to Industrial Court of Queensland – Application in existing proceedings by Respondent to set aside Appellant's application to appeal or, in the alternative, to dismiss appeal or, in the alternative, to set aside Appellant's application to appeal on the basis that the application did not comply with the Industrial Relations (Tribunals) Rules 2011 or that the grounds of appeal were outside the jurisdiction of the Court or otherwise invalid – Appellant's application to appeal does not comply with r 139(2)(c) of the Industrial Relations (Tribunals) Rules 2011 – Appellant's application to appeal does not disclose any alleged errors of law in respect of the decision appealed against – Respondent's application in existing proceedings granted – Appellant's application to appeal set aside |
LEGISLATION: | Industrial Relations Act 2016, s 424, s 557, s 558 and s 565 Industrial Relations (Tribunals) Rules 2011, r 139, r 140 and r 226 Workers' Compensation and Rehabilitation Act 2003, s 32, s 540, s 545, s 548, s 549, s 552A, s 560A, s 561, s 562 and s 563. |
CASES: | Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639 Burton v Workers' Compensation Regulator [2022] ICQ 017 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Crime and Corruption Commission v Andersen & Anor [2021] QCA 222 Davis v Workers' Compensation Regulator [2020] ICQ 011 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 Etherington v Anglo Coal (Capcoal Management) Pty Ltd [2019] ICQ 4 Flightdeck Geelong Pty Ltd and Another v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 Gambaro v Workers' Compensation Regulator [2017] ICQ 005 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR House v The King [1936] HCA 40; (1936) 55 CLR 499 Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Nutley v Workers' Compensation Regulator [2019] ICQ 002 Shaw v State of Queensland (Department of Education) [2021] QIRC 127 Shaw v Workers' Compensation Regulator (No. 3) [2022] QIRC 033 Tuesley v Workers' Compensation Regulator [2021] ICQ 008 Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 |
APPEARANCES: | The Appellant in person. Mr P. O'Neill of Counsel instructed by Ms R. Jamieson of the Respondent. |
Reasons for Decision
Introduction
- [1]Mr Trent Shaw was formerly the Principal of the Kin Kin State School. In June 2019, he made an application, pursuant to the Workers' Compensation and Rehabilitation Act 2003 ('the Act'), for compensation in relation to a psychological injury. In April 2020, the Workers' Compensation Regulator ('the Regulator') confirmed an earlier decision of WorkCover Queensland rejecting Mr Shaw's application ('the review decision').
- [2]Mr Shaw appealed the review decision to the Queensland Industrial Relations Commission. Following a three day hearing, supplemented by later written submissions from the parties, by decision delivered on 10 February 2022, the Industrial Commissioner who heard and determined Mr Shaw's appeal, confirmed the review decision and ordered that Mr Shaw pay the Regulator's costs ('the decision').[1]
- [3]By application to appeal filed on 25 February 2022, Mr Shaw appealed against the decision to the Industrial Court of Queensland ('the application to appeal').
- [4]By application in existing proceedings filed on 18 March 2022, the Regulator applied for:
- an order, pursuant to r 226 of the Industrial Relations (Tribunal) Rules 2011 ('the Rules'), that the application to appeal be set aside or that the document be declared to be ineffectual because of Mr Shaw's failure to comply with r 139(2)(c) of the Rules; or, in the alternative
- an order, pursuant to s 558 of the Industrial Relations Act 2016 ('the IR Act') that the appeal be dismissed; or, in the alternative
- an order pursuant to s 424 of the IR Act to set aside the grounds of appeal insofar as they fall outside the jurisdiction of the Court under s 557 of the IR Act or are otherwise invalid grounds of appeal; and
- an order that Mr Shaw pays the Regulator's costs of its application in existing proceedings and its costs of the application to appeal.
- [5]The issue for my determination is whether or not the application to appeal fails to comply with r 139(2)(c) of the Rules and, if so, what should follow from that.
- [6]For the reasons that follow, I exercise my discretion pursuant to r 226(2)(f) of the Rules and dismiss Mr Shaw's application to appeal.
Background
- [7]Before the Industrial Commissioner, there was no dispute that Mr Shaw:
- was a worker within the meaning of the Act; and
- had a psychiatric condition.[2]
- [8]The questions to be determined, as identified by the Industrial Commissioner, were:
- what psychiatric condition did Mr Shaw have?
- when was that psychiatric condition sustained?
- did Mr Shaw's psychiatric disorder arise out of, or in the course of, his employment?
- was Mr Shaw's employment the major significant contributing factor to his psychiatric disorder?
- did Mr Shaw's psychiatric disorder arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with his employment? and
- did Mr Shaw's psychiatric disorder arise out of, or in the course of, his expectation or perception of reasonable management action being taken against him?[3]
- [9]An issue before the Industrial Commissioner was whether Mr Shaw's psychiatric condition arose some years before specific events that took place at the school on 4 April 2019, and whether those events gave rise to a new psychiatric condition or if those events aggravated any pre-existing psychiatric condition.[4]
- [10]The Industrial Commissioner found:
- Mr Shaw's psychiatric illness emerged in 2016;
- his condition was '… Depression, Anxiety Disorder';
- the events of 4 April 2019 did not give rise to any new psychiatric condition; and
- the events of 4 April 2019 were not an aggravation of Mr Shaw's existing psychiatric condition.[5]
- [11]The Industrial Commissioner then went on to consider that, if it was the case that the events of 4 April 2019 did give rise to a new psychiatric condition or that they aggravated Mr Shaw's existing psychiatric condition, whether, in those circumstances, Mr Shaw suffered an injury within the meaning of s 32 of the Act.[6]
- [12]In this regard, the Industrial Commissioner found that:
- Mr Shaw's existing psychiatric disorder arose out of and in the course of his employment;[7]
- Mr Shaw's employment was not the major significant contributing factor to his existing psychiatric disorder, in that it was more probable than not that personal factors, rather than work related factors, were the major significant contributing factors to his psychiatric condition; [8] and
- as such, there was no further requirement to consider s 32(5)(a) and (b) of the Act in respect of any new or aggravated injury.[9]
- [13]The Industrial Commissioner also ordered that Mr Shaw pay the Regulator's costs of the hearing.[10]
Appeals to the Court against decisions made by the Commission under ch 13, pt 3 div 1 of the Act
The relevant provisions of the Act and the IR Act
- [14]Section 560A(b) of the Act relevantly provides that ch 13, pt 3, div 1A of the Act applies to a decision of the Commission under ch 13, pt 3, div 1 of the Act which is a decision decided by the Commission, on appeal, against certain review decisions of the Regulator.
- [15]A decision that a worker does not have an entitlement to workers' compensation under the Act is a review decision against which a worker can appeal to the Commission. [11]
- [16]Section 561(1) of the Act provides that a party aggrieved by the Commission's decision can appeal to the Court.
- [17]Section 561(2) of the Act provides that the IR Act applies to the appeal.
- [18]Section 561(3) of the Act relevantly provides that the appeal is by way of rehearing on the evidence and proceedings before the Commission, unless the Court orders additional evidence be heard.
- [19]Section 562(1) of the Act provides that, in deciding an appeal, the Court may confirm the decision, vary the decision or set aside the decision and substitute another decision.
- [20]Section 563(1) of the Act provides that on an appeal, the Court may order a party to pay the costs incurred by the other party only if satisfied the party made the application vexatiously or without reasonable cause.
- [21]There is no doubt that, in respect of a decision of the kind referred to in s 561(1) of the Act, the right to appeal against that decision is pursuant to s 561 of the Act and not s 557 of the IR Act.[12]
- [22]However, because of s 561(2) of the Act, an appeal from a relevant decision of the Commission is subject to s 557 of the IR Act,[13] namely, that a person aggrieved by the decision may appeal against the decision to the Court:
- on the ground of error of law or excess, or want, of jurisdiction;[14] and
- with the Court's leave, on a ground other than error of law or excess or want of jurisdiction,[15] namely, an error of fact.[16]
- [23]If an application for leave to appeal is made under s 557 of the IR Act, namely, on a ground other than error of law or excess, or want, of jurisdiction, the Court must give leave to appeal if it is satisfied it is in the public interest to do so and may not give leave other than when it is satisfied it is in the public interest to do so.[17]
- [24]There is a limit on the Court's function in determining an appeal by way of rehearing on the evidence and proceedings before the Commission. In Etherington v Anglo Coal (Capcoal Management) Pty Ltd,[18] Martin J, President, relevantly held:
[9] The nature of an appeal by way of rehearing was described by the High Court of Australia in Allesch v Maunz in the following way:
“[23] For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. …”
[10] In dealing with a similar issue in Fox v Percy, Gleeson CJ, Gummow and Kirby JJ said:
“[22] … The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
[23] … On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in a case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. …”
[11] I also bear in mind that, while the appeal is by way of rehearing:
“… To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …”.[19]
- [25]Sections 557(1) and (2) of the IR Act require an appellant to identify alleged errors of law or alleged jurisdictional error, and alleged errors of fact. The following sets out a summary of the more common types of questions or errors of law that may be agitated in appeals such as the present.
- [26]An error made in the course of elaborating the applicable law, particularly in construing a relevant statutory provision, is always an error of law.[20] Ordinarily, whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.[21] However, where a statute uses words according to their ordinary meaning, then the question of whether the facts found fall within those words is a question of fact.[22]
- [27]An error of the kind identified in House v The King,[23] in the exercise of a discretion, is an error of law.
- [28]The question of whether there is any evidence of a particular fact is a question of law. Likewise, the question of whether a particular inference can be drawn from facts found or agreed is a question of law. An error of law will occur where there was no evidence to support a finding of fact relevant to a decision.[24]
- [29]A failure to respond to a substantial, clearly articulated argument relying upon established facts is a denial of natural justice.[25] A denial of natural justice amounts to an error of law.[26] However, an appellate court will not intervene where the departure from the rules of natural justice made no difference to the outcome in the tribunal below.[27]
- [30]Further, even where it can be demonstrated that there is an error of law in the decision appealed against, it must be shown that the error of law vitiates the decision.[28]
- [31]
The relevant provisions of the Rules
- [32]Rule 4(2) of the Rules provides that a reference in pt 5 to an application to appeal includes a reference to a notice of appeal '… under an appeal Act.' The Act is defined in sch 2 to the Rules as an 'appeal Act.'
- [33]Part 5, div 3 of the Rules deals with appeals to the Court or Commission. Rules 139 and 140 are located in that division and provide:
139 Application to appeal-Act, s 557 or 562
- (1)This rule applies to an application to appeal-
- (a)to the court under section 557 of the Act from a decision of the commission; or
- (b)to the commission under section 562 of the Act against the stand-down of an employee under section 333 of the Act.
- (2)The application to appeal must be filed and state the following-
- (a)the name and last known address of each respondent or other party;
- (b)whether the appeal is from all or part (and which part) of the decision appealed from;
- (c)concise grounds of the appeal;
- (d)the decision the appellant wants instead of the decision appealed from;
- (e)if the appeal is from a decision of the full bench-whether the president was a member of the full bench.
Notes-
1 An application to appeal must be in the approved form. See rules 4 and 8(1) and (4).
2 See section 557(5) of the Act for the definition of commission for that section.
140 Application for leave to appeal-Act, s 557 or 560
- (1)An application for leave to appeal must state the following-
- (a)the name and last known address of each respondent or other party;
- (b)the grounds of the appeal;
- (c)the facts and circumstances relied on to argue that an appeal should be brought in the public interest.
Note—
A proceeding is started by an application in the approved form. See rule 8(1).
- (2)If the application is made under section 557(2) or 560(2) of the Act, the grounds of appeal stated in the application must not include an error of law or excess, or want, of jurisdiction.
- [34]As submitted by the Regulator, the '… requirement that the grounds of appeal be stated concisely encompasses not only a demand for brevity, but also clarity. It is a breach of r 139 to inadequately articulate the actual basis of each ground of appeal.'[31]
- [35]Rule 226(1) provides that a failure to comply with the Rules is an irregularity and does not, of itself, render a proceeding, document, step taken or order made in a proceeding a nullity.
- [36]Rule 226(2) provides:
- (2)If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may-
- (a)set aside all or part of the proceeding; or
- (b)set aside a step taken or order made in the proceeding; or
- (c)declare a document or step taken to be ineffectual; or
- (d)declare a document or step taken to be effectual; or
- (e)make another order that could be made under these rules; or
- (f)make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate.
- [37]These rules were considered by this Court in Gambaro v Workers' Compensation Regulator ('Gambaro').[32] That case involved an application to set aside an application to appeal made to this Court against a decision of the Commission made under ch 13, pt 3, div 1 of the Act. It is well worth repeating what Martin J, President stated in that case as it is relevant to all unrepresented appellants who make application to appeal to this Court:
[13] The purpose of the rules is to provide for the just and expeditious disposition of proceedings. It is contrary to this purpose for a party to file protracted or ambiguous notices of appeal, or to supplement a notice with large amounts of material that will not assist the court in the determination of the matter. The consequence of the appellant’s noncompliance with the rules is that the court may set aside or strike out part or all of the notice of appeal.
[14] Although the appellant is unrepresented, this does not excuse his noncompliance. A lack of legal representation is a misfortune, not a privilege. In Robertson v Hollings, Keane JA (with whom Fraser JA and Cullinane J agreed) said:
“[L]itigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted.”[33]
The application to appeal
- [38]Below is a summary of the application to appeal filed by Mr Shaw.
- [39]In paragraph 5, under the heading of 'Grounds of the appeal' Mr Shaw states that he asserts the Industrial Commissioner '… made an error of law by misapplying legal principles to facts of the matter.'
- [40]In paragraphs 6 and 7, the application to appeal states:
Misapplied legal principles
- The State and all agencies must conduct themselves as model litigants in the conduct of all litigation
![Shaw v Workers' Compensation Regulator [2022] ICQ 24](/judgmentview/image?name=356956.001.jpg&id=356956)
by adhering to the following principles of fairness:
- acting consistently in the handling of claims and litigation
- The State must behave as a model litigant in the conduct of all litigation, including significant litigation, by adhering to the following principles of firmness:
- appropriately testing all claims
- [41]In paragraphs 8 to 17, under the heading of 'Information available at the time', Mr Shaw makes ten statements by which he 'asserts' certain matters, the majority of which are relevantly, broad or vague criticisms of the Industrial Commissioner's decision and of the Regulator.
- [42]In paragraphs 18 to 30, under the heading of 'Condition', Mr Shaw, after referring to the Industrial Commissioner's finding of fact that his psychiatric condition was 'Depression, Anxiety Disorder', then (from paragraph 19) makes various statements about the Industrial Commissioner and the Regulator, the majority of which are broad or vague criticisms about findings of fact made by the Industrial Commissioner.
- [43]In paragraphs 31 to 38, under the heading of 'Injury', Mr Shaw makes eight statements making other broad or vague criticisms about findings of fact made by the Industrial Commissioner.
- [44]In paragraphs 39 to 43, under the heading of 'Management action', Mr Shaw makes five statements broadly or vaguely asserting the Industrial Commissioner made wrong findings of fact.
- [45]In paragraphs 44 to 47, under the heading of 'Summary', Mr Shaw makes allegations that the Industrial Commissioner:
- '… inconsistently managed accessible information';
- '… misrepresented available information';
- '… placed limited weight on the evidence from medical experts'; and
- '… dismissed the separation from employment policy and procedures.'
- [46]In his written submissions, Mr Shaw contended that because of the Regulator's criticisms of his grounds of appeal as contained in his application to appeal, it is evident that the Regulator can contest his grounds of appeal.
- [47]I generally accept the Regulator's submission that Mr Shaw's application to appeal fails to comply with the relevant rules in that it does not concisely or clearly identify any alleged errors in the decision appealed against. I say generally because, reading the application to appeal as a whole, I can see that in some paragraphs, alleged errors in the decision appealed against may possibly be discernible. However, even if such alleged errors are discernible, whether or not they amount to grounds of appeal that are competent or arguable is a different matter.
- [48]The circumstances of this case are similar to those faced by Martin J, President in Gambaro, where the appellant, who was unrepresented, started an appeal which did not comply with the Rules. In that case, his Honour relevantly held:
[15] The usual consequence of an appeal not complying with the rules in cases such as this one would be to set it aside. To set aside an appeal, however, does not necessarily prevent an appellant from continuing the appeal. A finding that the grounds of appeal are not stated concisely is not one which necessitates a finding that there is no arguable case. Indeed, where an appellant has an arguable case on appeal, they should not be denied the opportunity to have their case heard for mere noncompliance with the rules if appropriate amendments can remedy the situation.
[16] In some cases, though, a more appropriate course of action may be to dismiss the appeal. As Keane JA explained in Robertson:
“It would be quite wrong for this court to promote the furtherance of a pointless appeal by allowing the amendments to the notice of appeal to stand. Justice and mercy both require that leave to amend the notice of appeal be refused and the notice of appeal be struck out.”
[17] Where a party is unrepresented, a court should be reluctant to dismiss an appeal that is defective only because of the appellant’s inability to clearly articulate the grounds of an appeal. Further, applications to summarily dismiss an appeal should not be encouraged where that would amount to an interlocutory determination of the substantive appeal. However, appeals ought to be dismissed where no arguable ground of appeal is raised. Rule 226 allows an examination of the notice of appeal for this purpose where there has been a failure to comply with the rules.
[18] As such, it is appropriate to examine each of the appellant’s ground of appeal to determine whether the notice reveals an arguable case.[34]
- [49]Mr Shaw is representing himself. Given those circumstances, and my general views about his application to appeal as expressed above, the approach taken by Martin J, President in Gambaro is the appropriate and fair course to take in considering the Regulator's application.
- [50]I will consider whether the content of Mr Shaw's application to appeal reveals any arguable case on appeal.
The alleged failure of the Regulator to comply with the Model Litigant Principles - paragraphs 5 to 7 and 16
- [51]As the Regulator submits:
- by paragraph 5 of his application to appeal, Mr Shaw asserts, in the broadest manner, that the Industrial Commissioner erred in law by misapplying legal principles, yet no particulars are provided, the relevant facts said to support that ground of appeal are not identified and any alleged error of law is not made out; and
- by paragraphs 6 and 7 of his application to appeal, Mr Shaw claims that the relevant legal principles misapplied are the Model Litigant Principles, but that, in so doing, Mr Shaw did not clearly state how the Industrial Commissioner allegedly erred in law.
- [52]At paragraph 16, Mr Shaw asserts that the Industrial Commissioner thwarted his '… attempts to address the lack of Model Litigant Principles in relation to how the Regulator's representative compiled the Agreed Bundle.'
- [53]These paragraphs do not assert any error of law. The Model Litigant Principles did not bind the Industrial Commissioner. Indeed, the Model Litigant Principles do not create rights on the part of other litigants.[35]
- [54]These paragraphs, to the extent they reveal grounds of appeal, are incompetent.
Paragraphs 8 to 15 and 17
- [55]Paragraph 8 deals with the review decision of the Regulator rather than the decision of the Industrial Commissioner. It does not disclose a competent ground of appeal against the decision.
- [56]Paragraph 9 deals with statements made by a different Industrial Commissioner who conducted a conference, pursuant to s 552A of the Act, before the hearing of Mr Shaw's appeal. That is not a competent ground of appeal against the decision.
- [57]Paragraph 10 deals with an earlier interlocutory decision made by the Industrial Commissioner about non-party disclosure.[36] Mr Shaw's application to appeal cannot impugn that earlier decision.
- [58]Paragraph 11 makes an entirely vague assertion, namely, that the Industrial Commissioner '… ruled that the management of Kin Kin State School was not relevant to the matter but, in contradiction, was willing to hear oral testimony from the Respondent's witnesses in relation to the management of Kin Kin State School.' The vagueness of this ground does not disclose an arguable case for error of law.
- [59]Paragraph 12 alleges an error of fact. Mr Shaw has not made an application for leave to appeal on grounds other than error of law or excess, or want, of jurisdiction. An appeal on this ground is incompetent.[37]
- [60]Paragraph 13 alleges that the Industrial Commissioner 'charged' the Regulator's representative to manage a process that resulted in an agreed bundle of documents being tendered to the Commission (Exhibit 1), but that the Industrial Commissioner did not examine '… the transparency of the process' including confirming that the documents in the bundle was agreed. There was no responsibility or obligation on the part of the Industrial Commissioner to oversee the process of the parties agreeing to a bundle of documents to be tendered. Further, as the Regulator submits, this paragraph does not relate to the Industrial Commissioner's reasons for decision. This paragraph does not reveal an arguable ground of appeal.
- [61]Paragraph 14, asserts that the '… Regulator's representative presented the justification for excluding 65% of Mr Shaw's disclose documents, as upholding the Model Litigant Principles.' This ground is incompetent. The Model Litigant Principles do not create rights on the part of Mr Shaw.
- [62]Further, Mr Shaw accepted, during the course of argument before the Court, that he did tender documents separate to the agreed bundle, being Exhibits 5 to 9.[38] In addition, as the Regulator referred to in its submissions, the transcript reveals that Mr Shaw was informed by the Regulator, by email correspondence prior to the hearing before the Industrial Commissioner, that he could tender, subject to any objection made by the Regulator, whatever document he wanted to in the proceeding. The same point was made to Mr Shaw by the Industrial Commissioner during the hearing.[39] This paragraph does not reveal a competent or arguable ground of appeal.
- [63]Paragraph 15 makes a vague allegation that the Regulator's representative '… consistently referred to excluded disclosed documents' in presenting the Regulator's evidence. There is no specificity in this complaint. No particulars of this complaint are given. An appeal on this ground discloses no arguable case.
- [64]Paragraph 17 makes a similarly vague allegation, namely, that the Industrial Commissioner accepted testimony from the Regulator's witnesses that '… related to significant excluded disclosed evidence but was not accepting of the Appellant's attempt to have that evidence become an exhibit.' Again, there is no specificity in this complaint. It is impossible to understand what is being alleged. An appeal on this ground discloses no arguable case.
Paragraphs 18 to 30
- [65]Paragraph 18 merely restates the Industrial Commissioner's finding about the nature of Mr Shaw's personal injury. It does not disclose any competent ground of appeal.
- [66]Paragraphs 19, 20, 21, 22, 23, 24, 25, 26 and 27, which all seem to refer to matters which relate to each other, namely, the Industrial Commissioner's assessment of the medical evidence, allege errors of fact. To the extent those paragraphs reveal grounds of appeal, they are not competent for the same reasons as given in paragraph [59] of these reasons.
- [67]Paragraphs 28 to 30 state:
- The Appellant puts forth Commissioner McLennan recommended the Appellant ignore legal advice leading to Mr Shaw affording the Regulator's representative the opportunity to conduct a pre-hearing interview with his treating psychiatrist, who was scheduled to give an oral testimony during the hearing.
- The Appellant asserts the Regulator's representative conducted the pre-hearing interview with his treating psychiatrist four days before the hearing commencement.
- The Appellant asserts, after the pre-hearing interview with the Regulator, Dr Taikato felt it would be a professional conflict of interest to proceed with giving further evidence in the hearing.
- [68]There are a number of problems with these paragraphs. First, none of them attack any finding made by the Industrial Commissioner in the decision. Secondly, there is nothing inappropriate with representatives of the Regulator conducting a pre-trial conference with an expert witness who may have been called by Mr Shaw. Thirdly, paragraph 30 cannot sensibly amount to a competent ground of appeal. Fourthly, as recorded in the decision, Mr Shaw did not compel Dr Taikato to give evidence.[40]
- [69]For these reasons, none of these paragraphs disclose any competent or arguable grounds of appeal.
Paragraphs 31 to 38
- [70]All of these paragraphs are critical of findings of fact made by the Industrial Commissioner about Mr Shaw's injury. For the same reasons given in paragraph [59] of these reasons, to the extent these paragraphs reveal grounds of appeal, they are incompetent.
Paragraphs 39 to 43
- [71]All of these paragraphs are about the extent to which management action had a causal connection with Mr Shaw's injury.
- [72]As referred to earlier in these reasons, the Industrial Commissioner, because of the finding that Mr Shaw's employment was not the major significant contributing factor to his personal injury, did not need to consider s 32(5)(a) or (b) of the Act. These paragraphs reveal no arguable grounds of appeal.
Paragraphs 44 to 47
- [73]These paragraphs are a summary of the complaints Mr Shaw makes about the decision in the preceding paragraphs.
- [74]They reveal no competent or arguable grounds of appeal against the decision.
Conclusion
- [75]For the reasons given, Mr Shaw's application to appeal contained no grounds of appeal that were concise and clear.
- [76]Furthermore, for the reasons I have given, a close examination of the complaints Mr Shaw makes about the decision do not reveal any competent or arguable grounds of appeal.
- [77]In these circumstances, pursuant to r 226(2)(f) of the Rules, the appropriate course is to dismiss Mr Shaw's application to appeal.
- [78]I will hear the parties as to costs.
Orders
- [79]I make the following orders:
- Pursuant to r 226(2)(f) of the Industrial Relations (Tribunals) Rules 2011, the Appellant's application to appeal is dismissed.
- Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
- (a)the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Friday, 26 August 2022; and
- (b)unless otherwise ordered, the decision on costs be determined on the papers.
Footnotes
[1] Shaw v Workers' Compensation Regulator (No. 3) [2022] QIRC 033 ('Shaw No. 3').
[2] Shaw No. 3 (n 1), [29].
[3] Ibid [30].
[4] Ibid [31].
[5] Shaw No. 3 (n 1) [88].
[6] Ibid [95].
[7] Ibid [107]-[120].
[8] Ibid [121]-[183].
[9] Ibid [184].
[10] Ibid [187]-[190].
[11] Workers' Compensation and Rehabilitation Act 2003 s 540(1)(a)(viii), s 545(1), s 548(1)(a) and s 549(1).
[12] Tuesley v Workers' Compensation Regulator [2021] ICQ 008, [74] (Davis J, President).
[13] Nutley v Workers' Compensation Regulator [2019] ICQ 002 ('Nutley'), [10] (Martin J, President) and Burton v Workers' Compensation Regulator [2022] ICQ 017 ('Burton'), [14]-[18] (Davis J, President).
[14] Industrial Relations Act 2016 s 557(1).
[15] Industrial Relations Act 2016 s 557(2).
[16] Nutley (n 13) [10] and Burton (n 13) [19].
[17] Industrial Relations Act 2016 s 565.
[18] [2019] ICQ 4.
[19] Citations omitted. See also Burton (n 13), [18].
[20] Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 ('Azzopardi'), 150 (Kirby P) and 156‑157 (Glass JA) . What is the proper meaning, as a matter of construction, of a statutory provision is usually a question of law: Crime and Corruption Commission v Andersen & Anor [2021] QCA 222, [37] (Sofronoff P and Mullins and Bond JJA).
[21] Hope v Bathhurst City Council [1980] HCA 16; (1980) 144 CLR 1 ('Hope'), 7 (Mason J, Gibbs and Stephens JJ at 3 and Murphy and Aicken JJ at 11 agreeing) and Collector of Customs v Agfa-Gevaert Ltd ('Agfa‑Gevaert') [1996] HCA 36; (1996) 186 CLR 389, 395 (Brennan CJ and Dawson, Toohey, Gaudron and McHugh JJ).
[22] Hope (n 21) 8 and Agfa-Gevaert (n 21) 395.
[23] [1936] HCA 40; (1936) 55 CLR 499, 504-505 (Dixon, Evatt, McTiernan JJ).
[24] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355-356 (Mason CJ).
[25] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, [24] (Gummow and Callinan J) and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [13] (Bell, Gageler and Keane JJ ) and [105] (Nettle and Gordon JJ).
[26] Davis v Workers’ Compensation Regulator [2020] ICQ 011, [15] (Martin J, President).
[27] Flightdeck Geelong Pty Ltd and Another v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479, [58]‑[59] (Markovic, Derrington and Anastassiou JJ).
[28] Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, 645 (Shepherdson J, Kelly J at 640 agreeing).
[29] Azzopardi (n 20), 155 (Glass JA, Samuels JA at 157 agreeing).
[30] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J).
[31] Gambaro v Workers' Compensation Regulator [2017] ICQ 005, [12] (Martin J, President).
[32] Ibid.
[33] Citations omitted.
[34] Citations omitted.
[35] Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176, [217] (White and Stewart JJ).
[36] Shaw v State of Queensland (Department of Education) [2021] QIRC 127.
[37] In his oral submissions (T 1-27, l 44 to T-29, l 42), Mr Shaw stated that in making his appeal he referred to pt 9 of the publication of the Queensland Industrial Relations Commission entitled 'Workers' compensation appeal guide' and that he followed a particular section of pt 9.1, namely:
Form 5 asks you to state the grounds of appeal. Generally, you can only appeal on two grounds:
• An error of law (this means that the Member may have misapplied the law or a legal principle to the facts).
However, the same part of that guide also provides:
If you wish to go beyond those two grounds, then you must seek the leave of the Industrial Court to do so. You can do this within the Form 5 noting that you are seeking leave to appeal on grounds other than those in s 557(1) and pursuant to s 557(2) of the Industrial Relations Act 2016 (Qld).
[38] T 1-32, ll 3-9.
[39] Transcript in WC/2020/58, T 2-12, l 31 to T 2-14, l 39.
[40] Shaw No. 3 (n 1) [70].