QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 124 |
PARTIES: | Brisbane City Council (Applicant) v Gillow, Matthew (First Respondent) and Simon Blackwood (Workers' Compensation Regulator) (Second Respondent) |
CASE NOS: | WC/2015/165 WC/2015/166 WC/2015/167 |
PROCEEDINGS: | Application for Leave to be Heard in WC/2015/98 Application for Leave to be Heard in WC/2015/99 Application for Leave to be Heard in WC/2015/100 |
DELIVERED ON: | 1 July 2015 |
HEARING DATE: | 26 June 2015 29 June 2015 Written Submissions by Applicant 30 June 2015 Written Submissions from First Respondent 30 June 2015 Written Submissions from Second Respondent |
MEMBER: | Vice President Linnane |
ORDERS : |
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CATCHWORDS: | WORKERS' COMPENSATION LAW - INDUSTRIAL LAW - Applications by self-insurer for leave to be heard - Delay in filing of applications for leave to be heard - Applications deficient - Whether the Commission has power to grant a self-insurer leave to be heard in an appeal by a Worker - Applications dismissed on merit grounds and on ground that a self-insurer does not have standing to make such an application. |
CASES: | Workers' Compensation and Rehabilitation Act 2003, ss 540, 549. WorkCover Queensland Act 1996, s 498. Industrial Relations Act 1999, ss 316, 319, 320, 322, 329, 677. Blackwood v Pearce [2015] ICQ 012. Frazer v Gardner (2001) 167 QGIG 911. Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138. Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 008. State of Queensland v Squires and WorkCover Queensland (2002) 170 QGIG 20. The Corporation of the Trustees of the Order of the Sisters of Mercy Queensland Inc v Karas (2009) 192 QGIG 127. Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 005. |
APPEARANCES: | Mr M O'Sullivan, Counsel, instructed by Brisbane City Legal Practice for the Applicant. Mr J Morris, Counsel, instructed by McCowans Specialist Lawyers for the First Respondent. Ms M Mees of Simon Blackwood, Workers' Compensation Regulator) for the Second Respondent. |
Decision
[1] In these three applications the Brisbane City Council seeks a right to be heard in three appeals by Matthew Gillow against decisions made by the Workers' Compensation Regulator (Regulator) i.e. WC/2015/98, WC/2015/99 and WC/2015/100. WC/2015/98, WC/2015/99 and WC/2015/100 were filed in the Industrial Registry by McGowans Specialist Lawyers, Solicitors acting for Mr Gillow, on 16 April 2015. Given that the hearing of Mr Gillow's Notices of Appeal is scheduled to commence on 6 July 2015 this decision has been released rather urgently.
[2] A Callover of WC/2015/98, WC/2015/99 and WC/2015/100 was held on 30 April 2015. When these matters were called on at the Callover the representative of the Regulator mentioned that the Brisbane City Council was going to seek a right to be heard in the appeals. My immediate response was "well they had best get off their backsides and file their applications quickly". At this point the representative for the Brisbane City Council, Ms Joanne Whiting, announced an appearance and informed me that the Brisbane City Council intended to make application for a right to be heard in Mr Gillow's three Notices of Appeal. Directions for the further conduct of WC/2015/98, WC/2015/99 and WC/2015/100 were given at the Callover on 30 April 2015 in the presence of Ms Whiting.
[3] Ms Whiting was further advised on 30 April 2015 that any application for a right to be heard should be filed urgently. Ms Whiting advised both the Commission and the parties to the appeal (Mr Gillow and the Regulator) that the Brisbane City Council intended to file its applications by 11 May 2015. I then indicated to Ms Whiting that, if the filing of the Brisbane City Council applications was not going to occur until 11 May 2015, then the Brisbane City Council should take note of the early directions issued in WC/2015/98, WC/2015/99 and WC/2015/100. The first such direction issued in the Notices of Appeal was to be complied with by 8 May 2015. Ms Whiting was further advised that, as soon as the Brisbane City Council's applications for a right to be heard in the three appeals were determined and, if it was successful in those applications, I would immediately issue further directions in WC/2015/98, WC/2015/99 and WC/2015/100. I further provided Ms Whiting with a date on which the Brisbane City Council would have to file its list of witnesses and the list of documents on which it intended to rely upon should the applications be successful i.e. 12 June 2015. This direction would follow direction 8 of the Further Directions Order dated 30 April 2015. The Brisbane City Council was clearly aware, as at 30 April 2015, that any application for a right to be heard should be filed urgently and further, that the hearing dates of Mr Gillow's Notices of Appeal were in early July 2015.
[4] WC/2015/98, WC/2015/99 and WC/2015/100 were, on 30 April 2015, listed for hearing on 6, 7 and 8 July 2015. No applications for leave to be heard in the three appeals were filed by the Brisbane City Council until 23 June 2015. The applications were filed with covering letters also dated 23 June 2015 which relevantly provided as follows:
"We act on behalf of Brisbane City Council. Brisbane City Council seeks a hearing date of an application to be heard in the appeal of these matters. The appeal is set down for hearing on 6, 7 and 8 July 2015. An early hearing date for the application is requested in those circumstances. We have previously informed the Industrial Commissioner and the parties to the appeal of our client's intended application.
We request that the application be listed for hearing on either Friday 29 June 2015 or a date to be agreed to next week. I am just waiting on Counsel's availability for next week. Most days will be suitable next week but earlier in the week would suit. The application should only be short, no greater than 15 minutes even if it is opposed.
…"
[5] In an e-mail received at 2.36 pm on 23 June 2015 my office was further advised that the Solicitor for the Brisbane City Council was unavailable to attend a hearing of the applications on Thursday 25 June 2015.
[6] Given the following:
I find the correspondence dated 23 June 2015 from the Brisbane City Council which was attached to these applications most inappropriate to say the least. It seems that the Brisbane City Council, having advised the Queensland Industrial Relations Commission (Commission) and the parties that its applications would be filed by 11 May 2015 at the latest, can "appropriately" take eight weeks to file its applications but the Commission should re-organise its affairs to hear the applications within three days of the filing of the applications (and one of those days is not suitable to the Brisbane City Council).
[7] Whilst I did list these applications for hearing on Friday 26 June 2015 at 8.30 am (outside the normal time for listing matters) I did so to ensure that the Brisbane City Council could not contend that the Commission did not deal with their applications within an appropriate timeframe. No apology was forthcoming for the failure of the Brisbane City Council to file these applications by 11 May 2015 as promised. In fact no explanation whatsoever was given as to why the Brisbane City Council failed to file these applications by 11 May 2015. Had the Brisbane City Council filed these applications by 11 May 2015 as promised, these applications could have been dealt with in the normal time for listing matters to be heard.
[8] On the afternoon of 25 June 2015 I received an Affidavit of Nicole Hamers, Solicitor of McCowans (Exhibit 1). In that Affidavit Ms Hamers sought leave to refer to an Affidavit of Joanne Whiting, Solicitor for the Brisbane City Council, sworn 24 June 2015. No such Affidavit had been filed in the Industrial Registry by the Brisbane City Council. As a result of Ms Hamers' Affidavit I became aware that there was some disputation about what occurred at the Callover on 30 April 2015. This caused me to listen to a recording of the Callover on that date.
[9] At the hearing of these applications I advised the parties of the discussion that occurred in my presence at the Callover. At no time did Ms Hamers indicate any consent to the Brisbane City Council's proposed applications for a right to be heard. I specifically asked Ms Hamers whether Mr Gillow would be consenting to any application by the Brisbane City Council for a right to be heard in his Notices of Appeal and she responded that she would "have to seek instructions" on the matter.
Affidavit of Joanne Whiting
[10] At the hearing of these applications, the Brisbane City Council sought to rely upon an Affidavit of Joanne Whiting sworn on 24 June 2015 (Exhibit 2). In that Affidavit Ms Whiting sought, for the Brisbane City Council, to become an "intervener" in Mr Gillow's appeals. There is certainly no power to grant intervention rights to an employer in such circumstances in the Workers' Compensation and Rehabilitation Act 2003 (Act). The only right of intervention in the Industrial Relations Act 1999 is s 322 i.e. the Minister or a State peak council may intervene in certain circumstances. There is no ability whatsoever for the Brisbane City Council to "intervene" in any appeal by a worker against a decision of the Regulator.
[11] Further, in her Affidavit, Ms Whiting states that the Applicant in these applications is a "Self-Insurer" pursuant to Chapter 2 Part 4 of the Act. I deal with this aspect of the Brisbane City Council's case in paragraphs [29] - [34] of this decision.
[12] Ms Whiting further states that, prior to the Mention of the Brisbane City Council's applications on 30 April 2015 (it was not a mention but rather a Callover), she advised McCowan's Solicitors of the Brisbane City Council's "intention to be heard in the appeal of the matter". Ms Whiting then goes on to state that the "solicitors for the Appellant did not indicate to me at anytime that they sought to oppose the involvement of Brisbane City Council in the appeal hearing". It would be unusual to expect a potential respondent to an application to indicate their position in the absence of any such application e.g. I doubt that the response of the Regulator that they would neither consent nor oppose the applications was made knowing that the applications were made on behalf of the self-insurer. Ms Whiting went on to state that, having advised the solicitor for Mr Gillow of her client's intention to be heard in the appeal "there was no indication from the solicitor that was not an appropriate course to take in the conduct of the matter". Why would a solicitor for a party be advising an organisation such as the Brisbane City Council whether their stated intentions were appropriate or otherwise?
[13] Ms Whiting then states that it was her intention to seek consent orders from Mr Gillow and the Regulator in the week ending 19 June 2015. No application was filed by the Brisbane City Council for leave to be heard in any of the three Notices of Appeal as at 19 June 2015. One is somewhat surprised that a solicitor would be seeking consent from either Mr Gillow or the Regulator when no applications had been filed in the Industrial Registry. The commitment by Ms Whiting at the Callover was a commitment to file the Brisbane City Council's applications by 11 May 2015. That commitment was not met and no reason has been advanced as to why the commitment was not met. Rather the Brisbane City Council filed its applications some eight weeks after the Callover date.
[14] Ms Whiting goes on to state that she contacted my Senior Associate on 17 June 2015 to ascertain the Commission's process to obtain and file consent orders in these matters. Ms Whiting stated that she was informed by my Senior Associate that applications would need to be filed in the Industrial Registry before any such orders could be consented to and/or filed in the Industrial Registry. If Ms Whiting did not realise that an application needed to be filed prior to gaining a consent order, then why inform both the Commission and the parties on 30 April 2015 that she intended filing such applications, at the latest, by 11 May 2015?
[15] Shortly after this conversation with my Senior Associate on 17 June 2015, Ms Whiting apparently received news of the hospitalisation, in intensive care, of a close relative. That relative apparently remained in that condition until 19 June 2015. No issue is taken with what occurred between 17 and 19 June 2015. My concern is what happened between 30 April 2015 and 11 May 2015 and thereafter.
[16] Ms Whiting indicated that the Regulator was previously aware that the Brisbane City Council intended making an application for a right to be heard in these appeals. Ms Whiting indicated that the Regulator informed her that it neither consented to, nor opposed, such applications. As mentioned previously, I doubt that the Regulator, when informed by Ms Whiting of the Brisbane City Council's intention to file applications, was aware that the applications were being made on behalf of the "self-insurer". I will deal with the Regulator's submissions on the application by a "self-insurer" later in this decision.
[17] Ms Whiting in her Affidavit (Exhibit 2) stated that the involvement of the Brisbane City Council in the hearing of the Notices of Appeal by Mr Gillow would not delay the hearing and would, more than likely, assist the Commission to deal with the relevant issues. Further she stated in paragraph [18] of that Affidavit that:
"It is likely that Brisbane City Council intends to call the same witnesses as the Regulator. There is a possibility after finalising a pending enquiry that another lay witness may be called by Brisbane City Council in this matter."
[18] Ms Whiting was orally advised at the Callover on 30 April 2015 that, should the Brisbane City Council's applications be successful, Further Directions Orders in the three appeals would issue and would require the Brisbane City Council to file its list of witnesses by 12 June 2015. No list of witnesses was filed by the Brisbane City Council by 12 June 2015. Yet it seems the Brisbane City Council may, as at 26 June 2015, wish to call a further lay witness. Apparently no notice of this fact has been given to Mr Gillow or McGowans. No indication that the leave of the Commission would be sought to call an extra witness at this late stage.
[19] It should be noted that Mr Gillow already has an accepted workers' compensation claim in respect of a lower back pain and sciatica injury said to have occurred on 9 August 2012 whilst he was employed by the Brisbane City Council. WC/2015/98 appears to arise from a claim for damages for a secondary psychiatric or psychological injury arising from that accepted claim. WC/2015/99 is a claim for damages in respect of an aggravation of his lower back injury and a psychological/psychiatric injury said to have been incurred on 3 September 2012 and WC/2015/100 is a claim for a lower back injury, described as L5/S1 disc prolapse, causing left sided sciatica (requiring surgery) and a psychological/psychiatric injury said to have occurred on 15 April 2013. There could be no common law claim for an aggravation of that injury or a secondary psychiatric/psychological injury to the original physical injury but for the accepted physical injury sustained on 9 August 2012.
Further Affidavit of Joanne Whiting
[20] Since the hearing of this matter on 26 June 2015, I have received a further Affidavit of Joanne Whiting sworn on 29 June 2015. In this Affidavit Ms Whiting states that Mr Gillow has made a common law claim against the Brisbane City Council in the sum of $719,704.24. Should Mr Gillow be successful in his common law claim, Ms Whiting states that the Field Services Unit of the Brisbane City Council would pay the entire claim as the "full financial liability for common law claims are directly allocated and paid for by the relevant employer branch of Brisbane City Council". I refer to my comments outlined in paragraph [19] of this decision i.e. Mr Gillow already has a common law claim in respect of the physical injury sustained on 9 August 2012. Without that accepted claim there could be no claim for an aggravation of that injury or a secondary psychiatric/psychological injury resulting from that physical injury. To suggest that the damages sought in the sum of $719,704.24 arise from the matters currently before the Commission is disingenuous. Further, Mr Gillow's appeals in this jurisdiction are only the first steps in any common law claim.
[21] Ms Whiting also seeks to change the position she outlined in her earlier Affidavit in that she says that her instructions now come from the Brisbane City Council, the employer of Mr Gillow and not the self-insurer.
Applications filed on 23 June 2015
[22] The Brisbane City Council provided no detail whatsoever in their applications filed on 23 June 2015. Similar applications could have been filed on 30 April 2015. It did not need Counsel or anyone else to settle the applications. The Affidavit of Joanne Frances Whiting contained in the applications simply stated as follows:
"(a) The Appellant has commenced a common law claim against Brisbane City Council. The decision of the Workers [sic] Compensation Regulator that is being appealed from relates to that common law claim.
(b) It is in the interests of Brisbane City Council to be heard on the hearing of the appeal as the outcome of the appeal is relevant to the common law claim brought against it."
[23] No details of this so called interest of the Brisbane City Council were outlined in the application. Other than to state that the order that the Brisbane City Council sought in these applications was a right to be heard at the hearing of the three Notices of Appeal, that is the extent of the material provided by the Brisbane City Council. In the circumstances outlined above the Brisbane City Council, in seeking a hearing of its applications within three days of the filing of such applications and with scant detail and no indication of the interests of the Brisbane City Council that formed the basis of their application, is more than inappropriate. An organisation such as the Brisbane City Council should be a model litigant.
Conclusion on Merits
[24] If I have a discretionary power to deal with an application from an employer for leave to be heard in a workers' compensation appeal then I do not exercise that discretion on this occasion. These applications are far too late as the hearing of Mr Gillow's Notices of Appeal is scheduled to commence on 6 July 2015 i.e. 3 working days from today. At the hearing of the Brisbane City Council's applications on 26 June 2015 leave was sought to file further material and a further submission. Both the Regulator and McCowans sought to respond to those submissions and filed their submissions on 30 June 2015.
[25] Given the paucity of information contained in the applications for leave to be heard filed on 23 June 2015, these applications could have been filed either on the day of Callover or the following day. The Brisbane City Council has not provided any documentation sought by the directions contained in the Further Directions Order issued on 30 April 2015 which were orally notified to McCowans, the Regulator and Ms Whiting on behalf of the Brisbane City Council on 30 April 2015. Ms Hamers' Affidavit at paragraph [10] states that Mr Gillow has not been provided with any list of documents or any disclosure from the Brisbane City Council, not received any copies of correspondence intended to be relied upon, no list of witnesses to be called at the hearing has been provided, no details of any experts intended to be called at the hearing of Mr Gillow's Notices of Appeal have been provided (other than Ms Whiting's Affidavit in these proceedings which indicates that the Brisbane City Council intends to call Dr Chalk) and no copies of expert reports have been provided to Mr Gillow or the Commission by the Brisbane City Council.
[26] Mr Gillow opposes the Brisbane City Council's applications for a right to be heard. Ms Hamers did not give the Brisbane City Council any indication whatsoever that Mr Gillow would be consenting to the applications at the Callover on 30 April 2015 or apparently at any time thereafter. In fact Ms Hamers was very specific when I asked her whether Mr Gillow would be consenting to the applications. Her response was that she would have to seek instructions on the matter.
[27] It is far too late for the granting of such applications. There is now only three working days prior to the hearing of Mr Gillow's Notices of Appeal. Clearly the Regulator is defending its decisions, the subject of appeals in WC/2015/98, WC/2015/99 and WC/2015/100. The Brisbane City Council is going to have to rely upon the Regulator's defence of its position in the three appeals.
[28] If I have a power to deal with these applications then it is discretionary. I do not believe that the manner in which the Brisbane City Council has dealt with this issue warrants me exercising any discretion in its favour. The Brisbane City Council has not addressed in any form whatsoever why it did not file these applications by 11 May 2015. I dismiss the applications by the Brisbane City Council in WC/2015/165, WC/2015/166 and WC/2015/167. It is not that no person will be defending Mr Gillow's appeal. The Regulator will be defending its decision on review. Had the Brisbane City Council thought it important to be heard in Mr Gillow's appeals then it should have filed these applications by 11 May 2015 at the latest.
Self-Insurer as the Applicant
[29] In the Affidavit of Ms Whiting (Exhibit 2) at paragraph [7] it is stated that the "applicant is a Self-Insurer pursuant to Chapter 2 Part 4 of the Workers' Compensation and Rehabilitation Act 2003. It became a self-insurer on 1 July 1999". In the Outline of Argument on behalf of the Applicant (Identified Document A) provided at the hearing on 26 June 2015 at paragraphs [8], [9], [11], [12], [13] and [17] it is stated:
"8. The applicant is a self-insurer pursuant to Chapter 2 Part 4 of the Workers [sic] Compensation and Rehabilitation Act 2003 ("the Act"). It became a self-insurer on 1st July 1999.
9. Pursuant to the Act, the applicant as self-insurer is required to make payments pursuant to Chapters 3 and 4 in respect to any application for compensation, which is accepted.
…
11. It is respectfully submitted that the applicant should be heard on the subject appeal.
12. The applicant has financial and statutory obligations to the first respondent should he be successful in the subject appeal.
13. The applicant has financial and a legal interest in the outcome of such an appeal.
…
17. The applicant has a direct pecuniary interest in the outcome of the appeal given that it is a licensed self-insurer and the employer of the first respondent."
[30] There can be no doubt that these applications were filed on behalf of the self-insurer although an attempt has been made following the hearing on 26 June 2015 to resile from that position. In her Affidavit sworn on 29 June 2015, Ms Whiting in paragraph [5] - [8] states as follows:
"5. Brisbane City Council as an organisation operates a Self-Insurance Licence under the Workers [sic] Compensation and Rehabilitation Act 2003 and is called a Self-Insurer.
6. Self-Insurance at Brisbane City Council is managed by City WorkCover, a branch of Brisbane City Council and is not a separate government entity as it forms part of Brisbane City Council. Claims are managed in accordance with the Workers [sic] Compensation and Rehabilitation Act 2003, the terms of the licence and the Workers [sic] Compensation Regulators [sic] requirements.
7. My instructions in the matter of Mr Gillow are from Brisbane City Council, the employer and not City WorkCover.
8. Any information provided in relation to the employee by City WorkCover to the branch that employs the employee is information that the employer is entitled to under the Act."
[31] The Regulator submits that the Brisbane City Council, as self-insurer, only has a right to appeal a review decision of the Regulator in limited circumstances and, in this case, no such right is provide for in s 549 of the Act. The only entity entitled to appeal the Regulator's review decision was the Brisbane City Council as the employer of Mr Gillow if it was aggrieved by the decision. The Regulator acknowledges that its submission relates to who may appeal a review decision however it further submits that the analysis is also relevant when considering applications for a right to be heard at the hearing.
[32] The Regulator submits that if the application was being made by City WorkCover as a licensed insurer, it would not have standing to bring this application. These applications however were made by the self-insurer. In itself City WorkCover does not appear to be a legal entity and therefore could not have made the application in the name of City WorkCover. It is simply a unit or branch of the Brisbane City Council and these applications were made by the Brisbane City Council as the self-insurer. Again I refer not only to the initial Affidavit of Ms Whiting where she states in paragraph [7] that the "applicant is a Self-Insurer pursuant to Chapter 2 Part 4 of the Workers' Compensation and Rehabilitation Act 2003" but also to the Outline of Argument (Identified Document A) submitted on 26 June 2015. There can be no mistaking who was the applicant in these applications - it was the self-insurer unit of the Brisbane City Council.
[33] I agree with the submission made by the Regulator that a licensed insurer has no standing to bring an application for a right to be heard in an appeal against a review decision by a worker. In those circumstances these applications are also dismissed on the basis that they have been made on behalf of the self-insurer. Whilst I acknowledge that the Brisbane City Council has attempted, since the commencement of the hearing on 26 June 2015, to distance itself from both the Affidavit of Ms Whiting and its initial written submission, I am not satisfied that the applications were made by anybody other than the self-insurer.
[34] If I have a discretionary power then I would not exercise that discretion to grant the Brisbane City Council a right to be heard in Mr Gillow's Notices of Appeal given that the applications for a right to be heard have been made by the self-insurer.
Power to determine such applications
[35] At the commencement of this hearing I asked to be addressed on where the Commission gets a power to deal with such applications by employers for a right to be heard in appeals by workers against decisions of the Regulator. I asked to be addressed on the matter as I have some doubts about whether the Commission has the power. The Brisbane City Council in its Outline of Argument handed up at the commencement of the hearing on 26 June 2015 sought to utilise s 549(b) of the Act and s 320 of the Industrial Relations Act 1999. I assume the reference to s 549(b) of the Act was a reference to s 549(3)(b) of the Act. Section 549(3)(b) of the Act provides as follows:
"549 Who may appeal
…
(3) If the appellant is an employer -
…
(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)"
[36] In this instance the appellant is not an "employer" but rather a "worker" and, secondly, there has been no decision whatsoever been made by the Regulator under s 540(1)(a)(i) to (vi). The Commission thus gets no power under s 549(3)(b) of the Act to deal with these applications.
[37] Deputy President O'Connor in Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator)[1] stated that there was "no express power contained within the WCR Act to grant the application sought" i.e. applications by employers for a right to be heard. Up until this decision of Deputy President O'Connor, applications for leave to be heard had been dealt with under s 320(2) of the Industrial Relations Act 1999 relying upon earlier decisions of the Industrial Court of Queensland in respect of Industrial Magistrates e.g. in Middleton v Teys Bros (Holdings) Pty Ltd.[2]
[38] In concluding that s 320(2) of the Industrial Relations Act 1999 could not give the Commission power to make such determinations, the Deputy President referred to the decision of Hall P in Frazer v Gardner[3] where it was stated:
"It is difficult to treat the reference to 'proceedings' in s 320(2) as referring to anything other than proceedings under the Industrial Relations Act 1999. Given that the immediately preceding section, viz s 319, defines 'proceedings' to mean 'proceedings under this Act or any other Act being conducted by the court, the commission, an Industrial Magistrates Court or the Registrar' and that the definition is not repeated at s 320, one would have thought that a different meaning was intended."
[39] The Deputy President went on to state in paragraph [18] of his decision that "Frazer v Gardner is specific authority for the proposition that 'proceedings' as used in s 320(2) of the IR Act relates to 'proceedings' under the IR Act. It follows that 'proceedings' under the WCR Act would thereby be excluded."
[40] The Deputy President also referred to the decision of Hall P in The Corporation of the Trustees of the Order of the Sisters of Mercy Queensland Inc v Karas[4] citing the following passage in that decision:
"For completeness, I should add that each of the decisions of this Court supporting the proposition that an Industrial Magistrate may grant an employer leave to be heard viz, Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138 and State of Queensland v Squires and WorkCover Queensland (2002) 170 QGIG 20, were decided on an early version of the WorkCover Queensland Act 1996. It may be doubted whether grant of such leave is consistent with s 449 [sic] of the Workers' Compensation Act 2003 [sic]".
[41] Deputy President O'Connor in Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator)[5] at paragraph [23] noted the following:
"[23] To complicate the jurisprudence on this issue, Hall P in Buckley v Queensland Health seemed to resile from the position he had earlier taken in Karas to conclude:
'I affirm that on the current state of the authorities, the status quo position is that s 320 of the Industrial Relations Act 1999 does vest the Queensland Industrial Relations Commission (the Commission) and an Industrial Magistrate with the authority to grant interested parties leave to be heard (as a matter of discretion) and subject to such discretions as the Commission or Industrial Magistrate thinks fit'."
[42] At the hearing on 26 June 2015, the Brisbane City Council sought leave to present written submissions on the power of the Commission to grant their applications. Leave was granted and the Brisbane City Council filed a Further Outline of Argument on 29 June 2015. The Regulator and McCowans, Solicitors for Mr Gillow, also filed submissions in this regard on 30 June 2015.
[43] The legislative provision relied upon in Middleton v Teys Bros (Holdings) Pty Ltd[6] and State of Queensland v Squires and WorkCover Queensland[7] was s 498 of the then WorkCover Queensland Act 1996 when utilising s 320(2) of the Industrial Relations Act 1999. Section 498 provided as follows:
"Who may appeal
498. A claimant, worker or employer aggrieved by the decision (the "appellant") may appeal to an industrial magistrate against the decision of the review unit, WorkCover or the self-insurer (the "respondent").
[44] The current provision is found in s 549 of the Workers' Compensation and Rehabilitation Act 2003 and provides as follows:
"549 Who may appeal
[45] I agree with Deputy President O'Connor's conclusion and his reasoning in Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator)[8] that s 320(2) of the Industrial Relations Act 1999 does not give the Commission power to grant a right to an employer to be heard in a notice of appeal filed under the Workers' Compensation and Rehabilitation Act 2003. The Deputy President however went on to find that s 329(b)(v) of the Industrial Relations Act 1999 gave the Commission a discretion to determine such an issue.
[46] In so doing the Deputy President appears to have relied upon the provisions of s 677 of the Industrial Relations Act 1999. Section 677 of the Industrial Relations Act 1999 provides as follows:
"677. General application of jurisdictional provisions
The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this or another Act, unless the contrary intention appears."
[47] Sections 319, 320(2) and 329(b)(v) are each found in Chapter 8 Part 6 of the Industrial Relations Act 1999. In Division 1 of Part 6 (s 316 of the Act) there is a definitions section which applies in respect of Part 6. The term "proceedings" is not defined in s 316 of the Industrial Relations Act 1999.
[48] The then President of the Industrial Court of Queensland in Frazer v Gardner[9] expressed the clear view that s 320(2) only relates to proceedings under the Industrial Relations Act 1999 given the extended definition of "proceedings" in s 319 (Representation of Parties) of the Act. Section 319(5) of the Industrial Relations Act 1999 provides as follows:
"(5) In this section -
Proceedings means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar."
[49] Section 319 of the Industrial Relations Act 1999, even with its extended definition of "proceedings", has however no application to appeals under the Act as the Act itself in s 552B deals with legal representation at appeal or conference.
[50] In Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator)[10] the Deputy President relied upon s 329(b)(v) of the Industrial Relations Act 1999 being a specific power given to the Commission to direct "who may be heard and on what conditions" to grant the application for a right to be heard in that matter. It seems to me that s 329(b)(v) may also be restricted to proceedings under the Industrial Relations Act 1999 as no extended definition of "proceedings" is found in s 329 of the Act. Thus the same would apply to s 329 as it applies to s 320 of the Act except that in s 329 there is a specific power granted to the Commission to direct "who may be heard and on what conditions". Whether s 329(b)(v) of the Industrial Relations Act 1999 gives the Commission the power to direct "who may be heard and on what conditions" in a matter under the Workers' Compensation and Rehabilitation Act 2003 is a different issue.
[51] Further, the decision of Hall P in The Corporation of the Trustees of the Order of the Sisters of Mercy Queensland Inc v Karas[11] expresses doubt about whether the provisions of the current s 549 of the Workers' Compensation and Rehabilitation Act 2003 is consistent with the granting of such leave. Section 549 of the Workers' Compensation and Rehabilitation Act 2003 not only deals with who can appeal decisions but also who can be parties in such appeals. It gives an employer a right to be a party to an appeal by WorkCover if the employer so wishes in certain circumstances. Section 549 provides that a claimant or worker can be a party where the appellant is an employer, should the worker so wish. Most of the provisions in s 549(2)(3) and (4) were not provided for in the former s 498 of the WorkCover Queensland Act 1996.
[52] It is apparent that the legislature in 2004, in passing s 69 of the Workers' Compensation and Rehabilitation and Other Acts Amendment Act 2004, extended appeal rights and provided certain persons with a right to become a party to an appeal. The Explanatory Notes to the Workers' Compensation and Rehabilitation and Other Acts Amendment Bill 2004 stated as follows:
"Clause 69 amends s 549 which sets out who may appeal to an industrial magistrate. The clause expands the coverage to include both appeal bodies, the Queensland Industrial Relations and the Industrial Magistrate.
The clause also provides WorkCover with a right to appeal decisions of the Authority on prescribed decisions relating to premium as WorkCover may be directly aggrieved by the Authority's decision. To ensure natural justice the clause gives both an employer and WorkCover the right to be joined as a party to an appeal relating to premium decisions."
[53] If the legislature intended that employers could have a right to be heard then a provision similar to s 549(3)(a) could have been inserted i.e. where the appellant is a worker, the employer, if the employer wishes, could be a party to the appeal. No such provision was included. Section 549 of the Workers' Compensation and Rehabilitation Act 2003 does not give an employer or a self-insurer a right to be a party or a right to be heard in an appeal by a worker against a decision of the Regulator on review.
[54] If the reasoning of Hall P in Frazer v Gardner[12] is sound and the term "proceedings" in s 320(2) relates solely to proceedings under the Industrial Relations Act 1999 then the same must apply to s 329(b)(v) as no extended definition of "proceedings" is contained in s 329 of the Industrial Relations Act 1999. Both sections of the Industrial Relations Act 1999 are contained within Chapter 6 of Part 8 of the Act - Division 1 of which has a definitions section which does not include a definition of "proceedings". Had the legislature intended the extended definition of "proceedings" in s 319 to have applied throughout Chapter 6 of Part 8 of the Act then the definition in s 319 of "proceedings" could have been placed in s 316 of the Act and have application throughout Chapter 6 of Part 8 of the Act.
[55] The Regulator submits that there is a persuasive body of authority supporting the power of the Commission to make an order giving an employer a right to be heard in an appeal by a worker against a decision of the Regulator on review. I accept that is the case. However, the Regulator also acknowledges that Justice Martin in Blackwood v Pearce[13] identified reasons why a Court would not be bound to follow previous decisions. Justice Martin in both Blackwood v Pearce and Simon Blackwood (Workers' Compensation Regulator) v Toward[14] analysed the law in this regard and in paragraph [31] of the decision in Blackwood v Pearce summarised the principles as follows:
"[31] The relevant principles which can be drawn from the authorities may be summarised in this way:
[56] If the legislature intends for employers and/or self-insurers to be given a right to be heard in appeals by workers against review decisions of the Regulator pursuant to the Workers' Compensation and Rehabilitation Act 2003, then a provision in that Act dealing with the matter may resolve the issue. If the decision of Hall P in Frazer v Gardner[15] is correct then neither s 320(2) nor s 329(b)(v) of the Industrial Relations Act 199 can give the Commission power to deal with these applications.
Costs
[57] Solicitors for Mr Gillow sought their costs of attending the hearing on 26 June 2015. McCowans filed a Schedule of Costs in accordance with Schedule 3, Part 2, Scale E of the Uniform Civil Procedure Rules 1999 on 30 June 2015 as follows:
Counsel's fees - settling special Affidavit $103.50
Counsel's fees - on an application in a proceeding $186.00
Application to the Court (other than an application for
an adjournment $383.00
Attendance of solicitor with counsel (if the attendance
is certified by the court) $450.00
Total Costs $1,122.50
[58] The Brisbane City Legal Practice has responded to the Schedule of Costs from McCowans as follows:
"In relation to the Schedule provided by the First Respondent about the quantum of costs we note that item 8(a) in the amount of $450 is not an item that is relevant to an application in a pending matter. That item relates to the hearing of a matter and would not be allowed on an application."
[59] These applications were applications in their own right and were not interlocutory or interim applications in the substantive appeals by Mr Gillow. The First Respondent is thus entitled to costs under Item 8(a) of Schedule 3, Part 2, Scale E of the Uniform Civil Procedure Rules 1999 and I order that the additional costs of $450.00 be paid to the First Respondent. Additionally the Instructing Solicitor with Mr Morris was the maker of an Affidavit relied upon in these proceedings. She may have been required for cross-examination. She was the only person who could have sworn to the matters contained in her Affidavit.
[60] In those circumstances I order that the Applicant, Brisbane City Council, pay to the First Respondent, Matthew Gillow, an amount of $1,122.50 in respect of his costs of these applications. The $1,122.50 in costs are to be paid within twenty-one days of the release of this decision.
[61] Order accordingly.
[1] Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 005.
[2] Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138.
[3] Frazer v Gardner (2001) 167 QGIG 911.
[4] The Corporation of the Trustees of the Order of the Sisters of Mercy Queensland Inc v Karas (2009) 192 QGIG 127.
[5] Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 005.
[6] Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138.
[7] State of Queensland v Squires and WorkCover Queensland (2002) 170 QGIG 20.
[8] Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 005.
[9] Frazer v Gardner (2001) 167 QGIG 911.
[10] Woolworths Ltd v Dinca and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 005.
[11] The Corporation of the Trustees of the Order of the Sisters of Mercy Queensland Inc v Karas (2009) 192 QGIG 127.
[12] Frazer v Gardner (2001) 167 QGIG 911.
[13] Blackwood v Pearce [2015] ICQ 012.
[14] Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 008.
[15] Frazer v Gardner (2001) 167 QGIG 911.
