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Yousif v Workers' Compensation Regulator[2017] QIRC 47

Yousif v Workers' Compensation Regulator[2017] QIRC 47

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Yousif v the Workers' Compensation Regulator [2017] QIRC 047

PARTIES: 

Yousif, Belal

(Appellant)

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/5

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

26 May 2017

HEARING DATE:

4 May 2017

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Fisher

ORDERS:

  1. The appeal is to determine whether an injury, namely, an aggravation of a pre‑existing psychiatric injury, which occurred on 11 November 2014 meets the requirements of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
  2. The Public Interest Disclosure incident which occurred on 11 November 2014 and other ongoing issues that presented on that day fall within the scope of the appeal.
  3. Whether or not a particular event that arose prior to the decompensation was a factor in, or contributed to, the injury is not within the scope of the appeal.
  4. The appeal is returned to the Registry for Directions to be issued.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – where consent order issued – where appeal returned to Regulator for consideration of terms of the consent order – whether Public Interest Disclosure incident and other ongoing issues within scope of appeal – whether particular events that arose prior to decompensation could be said to be a factor in or contributed to the injury.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 31, s 32, s 131, s 552A, s 561

Bakir v Doueihi & Ors [2001] QSC 414

General Credits Limited v Ebsworth [1986] 2 Qd R 162

Radmanovich v Nedeljkovic [2002] NSWSC 212

Mercogliano v Tampas Nominees Pty Ltd (unreported, FCA, Northrop J, VG 524 of 1993)

William James Watson & May Marlene Watson as trustee for WJ & MM Watson Superannuation Fund v Scott [2015] QCA 267

Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 604

Codelfa Constructions Pty Ltd v State Rail Authority [1982] HCA 24; 149 CLR 337

Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 294 ALR 550; [2012] WASCA 216

Gardiner v Agricultural & Rural Finance Pty Ltd [2008] Aust Contract Reports 90-274; [2007] NSWCA 235

Kirkpatrick v Kotis [2004] NSWSC 1265, [55]; (2004) 62 NSWLR 567

Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253

Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558

Cassaniti v Paragalli [2006] NSWSC 50

Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001

Stephen Lane AND Q-COMP (C/2009/34) - Decision http://www.qirc.qld.gov.au

Craig Henry Trimble AND Q-COMP and State of Queensland (for Queensland Audit Office) (WC/2012/73) - Decision http://www.qirc.qld.gov.au

Church v Simon Blackwood (Workers' Compensation Regulator [2015] ICQ 031

Harris v Caladine (1991) 172 CLR 84

APPEARANCES:

Mr F. Abdullah, Agent for the Appellant.

Mr S. McLeod, Counsel directly instructed by the Workers' Compensation Regulator.

Decision

  1. [1]
    On 30 September 2016, Deputy President O'Connor issued a consent order in Case No WC/2015/280 in the following terms:

"BY CONSENT, THE ORDER OF THIS COMMISSION IS THAT:

  1. The appeal is allowed;
  1. The decision of the Workers' Compensation Regulator of 6 October 2015 is set aside and substituted with the following decision:
  1. Mr Yousif's application for compensation in relation to an incident on 11 November 2014 was lodged within the legislative timeframe, in accordance with s 131 of the Act;
  2. The matter be referred back to the Review Unit to determine whether Mr Yousif has sustained an injury, namely, an aggravation of a pre‑existing psychiatric injury as a result of the Public Interest Disclosure incident and other on-going issues on 11 November 2014 between Mr Yousif and his employer;
  3. If the Review Unit determines Mr Yousif has sustained an injury (as detailed above), the Review Unit is to determine Mr Yousif's injury:
    1. Arose out of or in the course of his employment
    2. Whether his employment was a major significant contributing factor
    3. Is excluded by s 32(5) of the Workers' Compensation and Rehabilitation Act 2003
  1.  Each party is to bear their own costs."
  1. [2]
    The matter was returned to the Regulator's Review Unit for consideration in accordance with the terms of the consent order.  By decision dated 22 December 2016, the Review Unit rejected the application for compensation by the Appellant in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003. The Appellant appealed that decision to the Queensland Industrial Relations Commission.  That appeal has the Case No WC/2017/5.
  1. [3]
    A conference was held pursuant to s 552A of the Act in relation to that appeal before another Member of the Commission.  That conference resulted in the parties agreeing to the appeal being listed for a preliminary hearing to resolve differences over the scope of the appeal and whether or not particular events that arose prior to the decompensation could be said to be a factor in the injury.
  1. [4]
    The Commission as constituted held the s 552A conference in relation to Case No WC/2015/280.  The parties to the present appeal advised that they had no objection to me hearing and determining the preliminary issue.

The Appellant's Case

  1. [5]
    The Appellant's case is that he sustained an aggravation of a psychiatric injury on 11 November 2014.  The words "and other ongoing issues" were inserted at his request to ensure that the Review Officer considered whether the Appellant suffered an aggravation of his pre-existing psychiatric injury as a cumulative result of the Public Interest Disclosure and the ongoing issues and stressors that existed at that time on 11 November 2014 and which were never resolved.[1]  The events and stressors were identified in the Appellant's Statement of Facts and Contentions in relation to WC/2015/280 and the expression "and other ongoing issues" had been repeatedly used in connection with them.  As the Regulator conceded the appeal based on the Appellant's "amended statement of stressors", there could be no misunderstanding by the Regulator as to the reason for and intention of the insertion of those words into the consent order.
  1. [6]
    The Appellant contends that the Commission is entitled to consider exposure to these previous stressors or events stated by the Appellant which have existed over a period of time and which have either independently or cumulatively contributed to the aggravation of his pre-existing psychiatric injury on 11 November 2014.[2]  The Appellant is not concerned about whether the stressors fall within the time limit or not; only their contributing effect to the aggravation.[3]  As a result, the stressors which caused the Appellant's initial injury and the five incidents of aggravation all fall within the scope of the appeal.

The Respondent's Case

  1. [7]
    The Respondent's case is succinctly expressed in its Outline of Submissions, where having broadly stated the Appellant's case, the following is said:

"12. A contrary intention is advanced by the respondent, namely, the appellant's case is confined to whether he sustained an aggravation of a pre-existing psychiatric injury as a result of the public interest disclosure incident on 11 November 2014 between the appellant and his employer, the USQ, and any on-going issues from the said incident.  So much is made plain by the reading of the order itself.  Accordingly, it is submitted that the appellant is precluded from raising any alleged workplace stressors prior to this incident.  That approach, conforms with respect, to the terms of the consent order made by the Commission."

Legal Principles

  1. [8]
    The parties were required to provide submissions on the legal principles to be applied in resolving the terms of a dispute over the terms of a consent order.  While these submissions have been read and considered, the decisions referenced therein and the legal principles derived from them provided limited assistance in resolving the issue before the Commission because they were either incomplete or did not properly reflect the state of the law in Queensland and Australia.
  1. [9]
    The starting point for the Commission's consideration is the nature of a consent order.  The case law establishes that a consent order operates not only as an order of the court but also as a contract between the parties.[4]  It is the expression of an underlying agreement between the parties and may be styled a compromise agreement.[5]  The Commission is required to construe the orders like any other document.[6]  The orders are to be construed on their terms, read as a whole.[7]  In construing the order the Commission must discover the objective intention of the parties as embodied in the words used.[8]
  1. [10]
    While different judicial approaches have previously been taken as to whether an ambiguity is required to be found in the order before extrinsic material is considered, the High Court expressed the view in Western Export Services Inc v Jireh International Pty Ltd[9] that ambiguity is a precondition to the admission of surrounding circumstances in the construction of contracts. In that decision, the High Court said that until it embarks on a reconsideration and disapproves or revises what was said, courts are required to follow the "true rule" as to the admission of surrounding circumstances as set out by Mason J (Stephen J and Wilson J concurring) in Codelfa Constructions Pty Ltd v State Rail Authority:

"22. The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

  1. It is here that a difficulty arises with respect to the evidence of prior negotiations.  Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract.  To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable.  The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make.  They are superseded by, and merged in, the contract itself.  The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
  1. Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract."[10]
  1. [11]
    In explaining the meaning of ambiguity and the use of surrounding circumstances in determining the scope of the "true rule of construction", McLure P (Newnes JA and Le Miere J agreeing) said in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd:

"76 The practical limitation flowing from the Codelfa true rule is that surrounding circumstances cannot be relied on to give rise to an ambiguity that does not otherwise emerge from a consideration of the text of the document as a whole, including whatever can be gleaned from that source as to the purpose or object of the contract.

77 The word 'ambiguous', when juxtaposed by Mason J with the expression 'or susceptible of more than one meaning', means any situation in which the scope or applicability of a contract is doubtful: Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1905) 3 CLR 444, 456-457.  Ambiguity is not confined to lexical, grammatical or syntactical ambiguity.

78 Moreover, the extent to which admissible evidence of surrounding circumstances can influence the interpretation of a contract depends, in the final analysis, on how far the language of the contract is legitimately capable of stretching.  Generally, the language can never be construed as having a meaning it cannot reasonably bear. There are exceptions (absurdity or a special meaning as the result of trade, custom or usage) that are of no relevance in this context."[11]

  1. [12]
    The approach taken above to the meaning of "ambiguity" is consistent with that of Spigelman CJ in Gardiner v Agricultural & Rural Finance Pty Ltd where he said:

"[12] … the proposition that language may not only be 'ambiguous' but also 'susceptible of more than one meaning' invoked a concept of 'ambiguity' extending to any situation in which the scope and applicability of the formulation was, for whatever reason, doubtful. (See South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478, [35]."[12]

  1. [13]
    In relation to a consent order, Campbell J held in Kirkpatrick v Kotis that "the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it."[13]
  1. [14]
    McMurdo P relied on the decision in Byrnes v Kendle[14] to state the following approach to the construction of an agreement:

"The meaning of the agreement is to be determined by what a reasonable person would have understood the terms to mean; evidence of pre-contractual negotiations is only admissible if it provides knowledge of surrounding circumstances and relates to objective facts known directly or inferentially by both parties."[15]

  1. [15]
    Extrinsic material such as reasons for judgment and pleadings[16] have been considered in construing orders.  In Cassaniti v Paragalli[17] Campbell J considered it open to refer to correspondence between the parties to leading to the consent order being made. However, care must be taken to identify the objective, and not the subjective, intention of the parties.[18]

Is the Consent Order Ambiguous or Susceptible to More than One Meaning?

  1. [16]
    As the consent order is to be read as a whole, it is not appropriate to consider order 2b in isolation.  It must be read in light of order 2a which provides that the decision of the Regulator is that the Appellant's application for compensation in relation to an incident on 11 November 2014 was lodged within the legislative time frame, in accordance with s 131 of the Act.
  1. [17]
    Order 2b provides that the issue for determination by the Review Unit is whether the Appellant sustained an injury.  The injury is described as an aggravation of a pre‑existing psychiatric injury.  The causes of the aggravation are specified as the Public Interest Disclosure incident and other ongoing issues.  The other ongoing issues are not described or otherwise identified.  The word "other" must have work to do.  Its ordinary dictionary meaning is "additional" or "further".[19]  Thus, the "other ongoing issues" are ongoing issues in addition to the Public Interest Disclosure incident.
  1. [18]
    However, there is a connection between the Public Interest Disclosure incident and the other ongoing issues by the use of the conjunction "and".  The two sets of events are connected before the date of the injury is nominated.  This has an important effect syntactically and temporally because both elements are expressed to be actual operative factors resulting in the aggravation of the pre-existing injury that day.
  1. [19]
    In my view, the terms of the consent order are not ambiguous or susceptible to more than one meaning.  The scope of the appeal is the Public Interest Disclosure incident on 11 November 2014 and any other issue that was ongoing and actually presented on 11 November 2014 that contributed to the aggravation of the pre-existing psychiatric injury.
  1. [20]
    In the event I am wrong about this conclusion I will proceed to construe the order on the basis that the inclusion of the clause, "and other ongoing issues" may give rise to doubt as to whether the scope of the consent order is limited to events on 11 November 2014 and thereafter or whether events prior to that date are included.  The objective facts that were known to both parties are examined to aid in the construction.

Objective Framework of Facts

  1. [21]
    In this case, the order was made by consent without any hearings before the Commission having occurred.  While pleadings are not a feature of this jurisdiction, the parties are required to file a Statement of Facts and Contentions.  The parties agree that while these Statements cannot be equated to pleadings they are extrinsic material that can be considered to resolve issues of construction of a consent order.
  1. [22]
    The Industrial Court of Queensland has not yet made any authoritative statements on the role of the Statement of Facts and Contentions.  However, it is perhaps not unreasonable to believe that the Court will take a similar view about the Statements as it did with the previously required Statement of Stressors in psychological/psychiatric injury cases where it held that such a document sets the boundaries for the case to be conducted.[20]  It is also noted that the Commission website advises that a party will be bound by their Statement of Facts and Contentions.  Although this is not a judicial pronouncement it indicates the importance of these documents and suggests that they are intended to have the same effect as a Statement of Stressors, that is, that it provides the boundaries of the case.  The Commission considers that a Statement of Facts and Contentions is admissible extrinsic evidence capable of being used to determine the surrounding circumstances.
  1. [23]
    The Appellant filed an application for worker's compensation in April 2015 for a condition described as "psychological system in general, anxiety/depression combined".  WorkCover Queensland rejected the application on the grounds that the injury was excluded from the Act by the operation of s 32(5).  WorkCover waived the time limit for applying despite being uncertain about whether the application was filed within the statutory time period.
  1. [24]
    The Appellant sought a review of the decision.  By decision dated 6 October 2015, the Review Unit of the Regulator decided to set aside the decision of the WorkCover and determined that the application for compensation was not valid and enforceable pursuant to s 131 of the Act because he had been assessed by a doctor earlier than 29 April 2015 as having sustained an injury, specifically 27 September 2013.  The Review Officer also found that the failure to lodge the application was not for any of the reasons given in s 131(5) of the Act which operate to allow the time limit prescribed by s 131(1) to be waived.  The Appellant appealed the decision of the Review Unit to the Commission (WC/2015/280).
  1. [25]
    After the s 552A conference was held the parties filed their Statements of Facts and Contentions.  The Appellant's Statement set out the "Factors of causation of the Appellant's initial psychiatric injury".  Reference was made to six incidents in 2010 and 2011, the result of which led the Appellant to contend that he sustained an injury within the meaning of s 32(1)(b) of the Act.  Thereafter, the Appellant set out:
  • the first incident of aggravation, with reference to events on 4 May 2012 and 21 May 2013;
  • events from June 2013 to 6 September 2013 leading to the second incident of aggravation;
  • the third incident of aggravation on 20 November 2013;
  • the fourth incident of aggravation with reference to two events which occurred on 26 March 2014 and one on 11 April 2014. The events of 26 March included the Appellant making a complaint under the Public Interest Disclosure Policy; and
  • the fifth incident of aggravation with reference to events on 7, 10 and 11 November 2014. On 7 November, the Appellant met with Mr Les Mitchell, the employer's Director of Integrity and Professional Conduct to discuss the unresolved ongoing work related issues and the Public Interest Disclosure complaint. Further meetings were held on 10 and 11 November regarding the Public Interest Disclosure complaint. Immediately after the meeting on 11 November 2014 the Appellant suffered an aggravation to his psychiatric state and sought medical treatment.
  1. [26]
    The Appellant's contentions in relation to the time limit set out in the Statement of Facts and Contentions are:

"27. The Appellant contends that both WorkCover and the Regulator have assumed and misconstrued that the Appellant's application was being made in respect of the Appellant's initial injury of anxiety and depression first diagnosed in 2011 and on that basis they have concluded that the Appellant's application did not satisfy Section 131(1) of the Act as it was not lodged within six months of the entitlement to compensation.

  1. Based on the information provided by Dr. Mellis in the medical certificate dated 29 April 2015, the Appellant further contends that the application for compensation was in respect of a specific event of aggravation of the Appellant's injury which happened 'after making a public disclosure (whistleblower)' (sic) as stated in the medical certificate.  Both WorkCover and the Regulator failed to investigate and obtain clarification from Dr. Mellis as to the details with regard to when the injury in relation to the Public Interest Disclosure issue happened and whether there had been an aggravation of the Appellant's injury as a result thereof.
  1. The fact that Dr. Mellis has stated 'recurring levels of severity since late 2011' under the column 'Detail any pre-existing factors or condition aggravated by the event' in the medical certificate demonstrates the fact that the recurring levels of severity referred to by Dr. Mellis was in respect of the aggravation to the initial injury as he was referring to an event (the public interest disclosure) that aggravated the Appellant's condition.  The Appellant contends that the term 'severity' denotes an adverse condition and consequently in the instant case recurring levels of severity of a psychiatric condition can only be caused by the aggravation of the initial injury.
  1. The Appellant also contends that the aggravation of the Appellant's initial injury in relation to the public disclosure (whistleblower) (sic) occurred on 11 November 2014 when the Appellant met Mr. Les Mitchell in regard to the investigation of the matter as stated in paragraph 17 above.  The Appellant further contends that his anxiety and depression was severely aggravated by the delay in the outcome of the investigation and consequently on the very same day, Dr. Mellis increased the Appellant's dosage of Zoloft medication to 100mg daily to contain the aggravation to the Appellant's psychiatric condition.  (Paragraph 17 describes the events of 10 and 11 November - my parenthesis.)
  1. Considering the fact that the Appellant's application for compensation was in respect of the incident of aggravation resulting from the public disclosure (sic) issue on 11 November 2014; the Appellant contends that his application lodged on 30 April 2015 was well within the time limit of six months from the date of aggravation of the initial injury."
  1. [27]
    On receipt of the Appellant's Statement of Facts and Contentions, the Regulator reconsidered its position.  It advised the Appellant's Agent by email dated 22 September 2016 that "[a]fter receiving your client's amended statement of stressors, the Regulator proposes to concede the appeal".  (The reference to the amended statement of stressors was erroneous.  The reference should have been to the Statement of Facts and Contentions but nothing turns on this.)
  1. [28]
    Attached to the email was a draft consent order.  The main difference between the draft and the order ultimately issued is found in order 2b.  The draft order did not meet with the Appellant's agreement.  Thereafter negotiations ensued by email correspondence until the parties agreed on the terms of an order which was ultimately issued as a consent order by Deputy President O'Connor on 30 September 2016.

Consideration and Findings

  1. [29]
    The legal principles set out earlier show that while prior negotiations may establish objective background facts, the subjective intentions of the parties which are expressed through statements and actions of the parties which are reflective of the actual intentions and expectations are inadmissible to construing the terms of the order.  Although correspondence may be considered the subjective intention of the parties is inadmissible.  On that basis, where the correspondence from the parties sets out their respective negotiating positions and reasons therefore leading to their agreement over the terms of the consent order, it is not capable of forming part of my consideration.
  1. [30]
    The Appellant's Statement of Facts and Contentions in relation to Case No. WC/2015/280 clearly shows that the Appellant was not relying on the initial injury of anxiety and depression first diagnosed in 2011 to claim compensation (paragraph 27).  The Appellant clearly contends that the application for compensation was for a specific event of aggravation (paragraph 28) resulting from the Public Interest Disclosure issue on 11 November 2014 (paragraphs 30 and 31).  The event on 11 November was a meeting between the Appellant and Mr Mitchell of the employer over the Public Interest Disclosure which then resulted in the Appellant immediately seeking medical treatment.  Having clarified the application for compensation was for a specific event on 11 November 2014, and having been diagnosed by a doctor within six months of that date as having an injury, the Regulator conceded the issue of the time limit.  The parties' presumed intention of agreeing to order 2a was to reflect these objective facts.
  1. [31]
    Although the issue of the time limit was conceded by the Regulator, the matter of injury remained.  Consequently, a further purpose of the order was to make clear the matters to be remitted to the Review Unit to determine, i.e., whether the (aggravation) injury satisfied the requirements of s 32 of the Act.  It is within this context that the question arises as to the effect of the provision "and other ongoing issues" if the appeal is limited to the incident on 11 November 2014.
  1. [32]
    The Appellant relies on the various incidents and stressors preceding the event of 11 November 2014 to show that they contributed to the aggravation of his psychiatric injury on that day.  In support of that argument reliance is placed on the decision in Stephen Lane AND Q‑COMP[21] where Hall P found that stressors which occurred over a period of time could be considered in determining whether there was an aggravation of an injury.  The case of Craig Henry Trimble AND Q-COMP and State of Queensland (for Queensland Audit Office)[22] was said to be to the same effect.
  1. [33]
    The Appellant further argues that the meaning of the word "event" found in s 31(2) of the Act permits him to refer to repeated or continuous exposure to various incidents and stressors.
  1. [34]
    The effect of the decisions and the meaning of the word "event" is, the Appellant submits, that he is entitled to rely on all the stressors that took place before the Public Interest Disclosure incident, together with the Public Interest Disclosure incident per se, in determining whether there was an aggravation of the injury on 11 November 2014.[23]  It was contended that there was a continuing exposure to these stressors even at the time of the Public Interest Disclosure incident.  This repeated exposure caused the Appellant to propose the insertion of the words "other ongoing issues" into the order.
  1. [35]
    The Appellant also refers to the use of the term "ongoing issues" in the decision of the Review Officer of 6 October 2015.  Because of the inclusion of this phrase there, it was submitted that the Regulator knew what the ongoing issues were and it is now not at liberty to resile from that position.
  1. [36]
    The Regulator rejects this proposition.  In its view, the Review Officer's decision, while referencing an ongoing problem, did not make any findings of fact.  I accept that submission.  Close reading of that decision shows that the Review Officer was not accepting that there were ongoing issues, only that the Appellant and his General Practitioner referred to them in their material.
  1. [37]
    The Regulator further submits that the order does not refer to the history of other alleged workplace incidents.  It specifically refers to the incident on 11 November 2014 and ongoing issues on that particular day, or thereafter, if it was to be read more generously.
  1. [38]
    The Appellant's argument for the acceptance of the pre-existing stressors as being contributory to the aggravation of his pre-existing injury is largely reflective of his subjective intention.  However, subjective intention is not permitted when construing the terms of a consent order. 
  1. [39]
    Objectively, compromising the appeal on the time limit issue on the basis that one incident is said to give rise to an aggravation of an injury does not then open up for consideration of all other incidents or stressors that are also claimed to have aggravated the injury over a period of time.  This is especially so when all other incidents of aggravation set out in the Statement of Facts and Contentions are written so as to indicate that each gave rise to a discrete injury. 
  1. [40]
    A key difference between the cases relied on by the Appellant and his matter is that his Statement of Facts and Contentions establishes the cause of his discrete injury on 11 November 2014.  This is the meeting to discuss the Public Interest Disclosure issue.  Another aggravating factor was the delay in the outcome of the investigation into his complaint.  This was an ongoing issue.  It is therefore unnecessary to consider whether stressors pre‑existing that date either independently or cumulatively caused an aggravation to the Appellant's psychiatric condition on 11 November 2014.
  1. [41]
    The inclusion of the provision "and other ongoing issues on 11 November 2014" can only encompass ongoing issues that were identified in the Appellant's Statement of Facts and Contentions as contributing to the aggravation on that particular day.  The generous interpretation the Regulator alluded to cannot be accepted because that would allow post-decompensation issues to be ventilated.
  1. [42]
    The outcome of both approaches to the construction of the consent order is the same.

Concluding Comment

  1. [43]
    Before concluding, it is necessary to respond to the Appellant's submission that the Regulator has already decided that he sustained an injury which arose out of his employment and employment was a major significant contributing factor to it and, as such, it was not now open to the Regulator to resile from those findings of fact.  It is important to note that it is the decision of the Review Unit of the Regulator which is the subject of the appeal, that is, that the application for compensation was rejected.  The appeal proceeds as a hearing de novo before the Commission.  This contrasts with an appeal from a decision of the Commission to the Industrial Court which proceeds as a rehearing on the evidence and proceedings before the appeal body unless the Court orders additional evidence to be heard:  s 561(3).
  1. [44]
    The nature of a hearing de novo was discussed by Martin J in Church v Simon Blackwood (Workers' Compensation Regulator).[24]  There, he cited with approval the explanation provided Dawson J in Harris v Caladine:

"An order made by a Registrar is reviewable by way of a hearing de novo.  That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses'." (references omitted)[25]

  1. [45]
    Thus, all (relevant) elements of s 32 of the Act are open to be determined by the Commission.

Orders

  1. The appeal is to determine whether an injury, namely, an aggravation of a pre-existing psychiatric injury, which occurred on 11 November 2014 meets the requirements of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
  2. The Public Interest Disclosure incident which occurred on 11 November 2014 and other ongoing issues that presented on that day fall within the scope of the appeal.
  3. Whether or not a particular event that arose prior to the decompensation was a factor in, or contributed to, the injury is not within the scope of the appeal.
  4. The appeal is returned to the Registry for Directions to be issued.

Footnotes

[1] Appellant's Statement of Facts and Contentions, 18 March 2017, paragraph 23.

[2] Appellant's Statement of Facts and Contentions, 18 March 2017, paragraph 31.

[3] T 1-11, 10-13.

[4] Bakir v Doueihi & Ors [2001] QSC 414, [12].

[5] General Credits Limited v Ebsworth [1986] 2 Qd R 162, 163-164. (de Jersey J with whom Connolly J and Thomas J agreed).

[6] Radmanovich v Nedeljkovic [2002] NSWSC 212, [7] (Young CJ in Eq).

[7] Mercogliano v Tampas Nominees Pty Ltd (unreported, FCA, Northrop J, VG 524 of 1993.

[8] William James Watson & May Marlene Watson as trustee for WJ & MM Watson Superannuation Fund v Scott [2015] QCA 267, [30].

[9] Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 604.

[10] Codelfa Constructions Pty Ltd v State Rail Authority [1982] HCA 24; 149 CLR 337, 352.

[11] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 294 ALR 550; [2012] WASCA 216.

[12] Gardiner v Agricultural & Rural Finance Pty Ltd [2008] Aust Contract Reports 90-274; [2007] NSWCA 235, [12] (Spigelman CJ).

[13] Kirkpatrick v Kotis [2004] NSWSC 1265, [55]; (2004) 62 NSWLR 567, 579.

[14] Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, [59], [98].

[15] William James Watson & May Marlene Watson as trustee for WJ & MM Watson Superannuation Fund v Scott [2015] QCA 267, [30] (Morrison and Philipides JJA agreeing).

[16] Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558, 569.

[17] Cassaniti v Paragalli [2006] NSWSC 50, [18].

[18] J Tarrant, "Construing undertakings and court orders" (2008) 82 ALJ 82, 89.

[19] Macquarie Dictionary, 5th ed., (2009) Macquarie Dictionary Publishers Pty Ltd, Sydney, Australia.

[20]Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001, [19].

[21] Stephen Lane AND Q-COMP (C/2009/34) - Decision http://www.qirc.qld.gov.au.

[22] Craig Henry Trimble AND Q-COMP and State of Queensland (for Queensland Audit Office) (WC/2012/73) - Decision http://www.qirc.qld.gov.au.

[23] T1-11, 17-20.

[24] Church v Simon Blackwood (Workers' Compensation Regulator [2015] ICQ 031, [28]-[29].

[25] Harris v Caladine (1991) 172 CLR 84, 124-5.

Close

Editorial Notes

  • Published Case Name:

    Belal Yousif v Workers' Compensation Regulator

  • Shortened Case Name:

    Yousif v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 47

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    26 May 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bakir v Doueihi [2001] QSC 414
2 citations
Jump To
Cite 1 - [2001] QSC 414
Cite 2 - [2001] QSC 414
Bowtell v Goldsbrough (1905) 3 CLR 444
1 citation
Jump To
Cite 1 - (1905) 3 CLR 444
Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60
1 citation
Jump To
Cite 1 - [1905] HCA 60
Byrnes v Kendle [2011] HCA 26
2 citations
Jump To
Cite 1 - [2011] HCA 26
Cite 2 - [2011] HCA 26
Byrnes v Kendle (2011) 243 CLR 253
2 citations
Jump To
Cite 1 - (2011) 243 CLR 253
Cite 2 - (2011) 243 CLR 253
Cassaniti v Paragalli [2006] NSWSC 50
2 citations
Jump To
Cite 1 - [2006] NSWSC 50
Cite 2 - [2006] NSWSC 50
Cassaniti v Paragalli (2008) ALJ 82
1 citation
Jump To
Cite 1 - (2008) ALJ 82
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) HCA 24
2 citations
Jump To
Cite 1 - (1982) HCA 24
Cite 2 - (1982) HCA 24
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 C.L R. 337
2 citations
Jump To
Cite 1 - (1982) 149 C.L R. 337
Cite 2 - (1982) 149 C.L R. 337
Gardiner v Agricultural & Rural Finance Pty Ltd [2008] Aust Contract Reports 90
1 citation
Jump To
Cite 1 - [2008] Aust Contract Reports 90
Gardiner v Agricultural & Rural Finance Pty Ltd [2008] Aust Contract Reports 9 -274
2 citations
Jump To
Cite 1 - [2008] Aust Contract Reports 9 -274
Cite 2 - [2008] Aust Contract Reports 9 -274
Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235
2 citations
Jump To
Cite 1 - [2007] NSWCA 235
Cite 2 - [2007] NSWCA 235
General Credits Ltd v Ebsworth [1986] 2 Qd R 162
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 162
Cite 2 - [1986] 2 Qd R 162
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 294 ALR 550
2 citations
Jump To
Cite 1 - (2012) 294 ALR 550
Cite 2 - (2012) 294 ALR 550
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216
2 citations
Jump To
Cite 1 - [2012] WASCA 216
Cite 2 - [2012] WASCA 216
Harris v Caladine (1991) 172 C.L.R 84
2 citations
Jump To
Cite 1 - (1991) 172 C.L.R 84
Cite 2 - (1991) 172 C.L.R 84
Kirkpatrick v Kotis (2004) 62 NSWLR 567
2 citations
Jump To
Cite 1 - (2004) 62 NSWLR 567
Cite 2 - (2004) 62 NSWLR 567
Kirkpatrick v Kotis [2004] NSWSC 1265
2 citations
Jump To
Cite 1 - [2004] NSWSC 1265
Cite 2 - [2004] NSWSC 1265
Lane v Q-COMP [2009] ICQ 7
2 citations
Jump To
Cite 1 - [2009] ICQ 7
Cite 2 - [2009] ICQ 7
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558
2 citations
Jump To
Cite 1 - (2003) 129 FCR 558
Cite 2 - (2003) 129 FCR 558
Radmanovich v Nedeljkovic [2002] NSWSC 212
2 citations
Jump To
Cite 1 - [2002] NSWSC 212
Cite 2 - [2002] NSWSC 212
South Sydney Council v Royal Botanic Gardens (1999) NSWCA 478
1 citation
Jump To
Cite 1 - (1999) NSWCA 478
Trimble v Q-COMP AND State of Queensland (for Queensland Audit Office) [2013] QIRC 135
2 citations
Jump To
Cite 1 - [2013] QIRC 135
Cite 2 - [2013] QIRC 135
Watson v Scott[2016] 2 Qd R 484; [2015] QCA 267
3 citations
Jump To
Cite 1 - [2015] QCA 267
Cite 2 - [2015] QCA 267
Cite 3 - [2015] QCA 267
Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45
2 citations
Jump To
Cite 1 - [2011] HCA 45
Cite 2 - [2011] HCA 45
Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 604
2 citations
Jump To
Cite 1 - (2011) 86 ALJR 604
Cite 2 - (2011) 86 ALJR 604
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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