Yousif v The Workers' Compensation Regulator
[2018] QIRC 68
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- Unreported Judgment
- Yousif v The Workers' Compensation Regulator[2018] QIRC 68
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Yousif v The Workers' Compensation Regulator[2018] QIRC 68
Yousif v The Workers' Compensation Regulator[2018] QIRC 68
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Yousif v The Workers' Compensation Regulator [2018] QIRC 068 |
PARTIES: | Yousif, Belal (Applicant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2017/5 |
PROCEEDING: | Application for a recusal |
DELIVERED ON: | 29 May 2018 (ex tempore) |
HEARING DATE: | 28, 29 May 2018 |
MEMBER: | O'Connor DP |
HEARD AT: | Toowoomba |
ORDER: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPLICATION FOR RECUSAL – where applicant requests that the Deputy President be disqualified and recused from hearing the substantive appeal – application dismissed. |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32, s 131 Industrial Relations Act 2016 (Qld) s 533, s 551 Industrial Relations (Tribunals) Rules 2011 (Qld) r 61 Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Immigration v Lee 249 CLR 332 New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88 Yousif v Workers' Compensation Regulator [2017] ICQ 004 |
APPEARANCES: | Mr F Abdullah agent for the appellant Mr S Macleod of counsel directly instructed by the Workers' Compensation Regulator |
Reasons for Decision (ex tempore)
- [1]The appellant has filed an application seeking the following order:
That His Honour Deputy President of the Queensland Industrial Relations Commission be disqualified and recused from hearing the matter ordered and set down for trial on 28, 29, 30, 31 May and 1 June 2018 at the Toowoomba Court House by Her Honour, Deputy President D A Swan under a Further Direction Order No.6 dated 4 December 2017 pursuant to the Mention before her Honour on 28 November 2017.
- [2]The appellant identifies the following five grounds to support its application. Each of them is based upon a real and reasonable apprehension of bias in relation to me. They can be summarised as follows:
- [3]Firstly, that I have arbitrarily overruled by my own volition and set aside order number 6 of the further direction of her Honour, Deputy President D.A. Swan, dated 4 December 2017, which her Honour had determined after hearing the parties at the mention held on 28 November 2017, especially considering the fact that the appellant had complied with all the orders stated therein and, further, considering that no application has been made by the respondent to set 20 aside the order.
- [4]The second ground is that an impartial and fair hearing under the audi alteram partem rule of natural justice has been denied, wherein, I have, at the mention of 22 May 2018, arbitrarily and unlawfully limited the length of hearing of appeal to two days, i.e. 28 and 29 May 2018, with seven witnesses compressed to be heard within two days without due regard to the evidence to be presented as per the outline of evidence submitted by the appellant to the commission in respect of the witnesses. Effectively preventing and wrongfully supressing the appellant from presenting and corroborating his evidence by sufficiently and adequately examining the witnesses to establish his evidence and other witness's evidence and, in so doing, his Honour has thereby prejudged and predetermined the relevance of the evidence even before hearing the witnesses.
- [5]The third ground is that I have a wrongfully limited the length of the hearing dates, the unlawful restriction and a denial of the appellant's right to an impartial and a fair hearing and the suppression of his right to present his evidence which is unreasonably, arbitrary, oppressive and unconstitutional as the appellant's right to appeal and to seek redress as justice under the law in accordance with the hallmark and cardinal principle of justice that justice must not only be done, but seen to be done and this has severely and utterly been curtailed.
- [6]The fourth ground is that I've exceeded my powers and jurisdiction by allowing a third party, namely, The University of Southern Queensland, who has no locus standi and who is not a party to the proceedings to this appeal, to intervene in the proceedings at the mention on 22 May in contravention of section 533 of the Industrial Relations Act 2016, which does not have any provision for third party intervention. Further, the exercise of the discretion to grant leave to The University of Southern Queensland to intervene without sufficient notice to the appellant's agent is a travesty of justice and wrongful exercise of discretion as the power to exercise a discretion must be in accords with law and the principles of justice. Further, I had no power or jurisdiction to make my own rules in contravention of section 551 of the Industrial Relations Act 2016.
- [7]Finally, ground 5, that the decision to limit the length of the hearing of appeal had infringed and contravened subsection (3) of section 531 of the Industrial Relations Act 2016 as the decision to limit the length of the appeal hearing effectively suppressed the appellant and his witnesses from giving evidence and establishing his case and is not guided by equity, good conscious and the merits of the case and that I had failed to take into regard the interests of the appellant and the public interest.
- [8]In order to properly consider the application for recusal it is necessary to give a brief history of the matter. The facts were conveniently set out by Martin J in Yousif v Workers' Compensation Regulator.[1] Mr Yousif was a lecturer employed by the University of Southern Queensland. On 29 April 2015, he made an application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act) for a condition described as "psychological system in general, anxiety/depression combined mood". The application was rejected by WorkCover on the basis that an injury within the meaning of s 32 of the Act had not been sustained. Notwithstanding that WorkCover was uncertain about the date of commencement of the appellant's claimed injury, it waived the time limit under the Act in the appellant's favour.
- [9]On a review of WorkCover's decision, the Regulator set aside the decision to waive the time limitation and determined that the application was not available to be made in accordance with s 131 of the Act. An appeal against that decision was lodged and Statements of Facts and Contentions were filed by each party. That appeal was compromised and the Commission was asked to make consent orders. Those orders were:
BY CONSENT, THE ORDER OF THIS COMMISSION IS THAT:
- The appeal is allowed;
- The decision of the Workers' Compensation Regulator of 6 October 2015 is set aside and substituted with the following decision:
a. 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;
b. 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;
c. If the Review Unit determines Mr Yousif has sustained an injury (as detailed above), the Review Unit is to determine Mr Yousif's injury:
- Arose out of or in the course of his employment
- Whether his employment was a major significant contributing factor
- Is excluded by s 32(5) of the Workers' Compensation and Rehabilitation Act 2003.
- Each party is to bear their own costs.
- [10]In accordance with the terms of the consent order, the application was again considered and rejected on the basis that an injury was not sustained within the meaning of s 32 of the Act because s 32(5) operated to exclude the injury. During the 552A conference an issue arose between the parties as to the proper construction of the consent order. That difference was the subject of a determination before Industrial Commissioner Fisher. The orders made by Commissioner Fisher were:
- 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.
- 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.
- 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.
- The appeal is returned to the Registry for Directions to be issued.
- [11]Industrial Commissioner Fisher's decision was appealed to the Industrial Court and dismissed by Martin J. Let me turn to the test for recusal.
The Test for recusal
- [12]It is not in contention that the legal test for determining whether a judicial officer should disqualify himself or herself by reason of apprehended bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson[2], affirmed in Ebner v Official Trustee in Bankruptcy.[3]
- [13]The respondent made reference to a decision of Bowskill J in New Acland Coal Pty Ltd v Smith & Ors[4] wherein her honour wrote:
I adopt what Moynihan SJA said in Keating v Morris & Ors; Leck v Morris & Ors [2005] QSC 243 at [47] to the effect that apprehended bias is a serious allegation to be made, and the considerations canvassed by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 are relevant. A reviewing court will not lightly conclude that a judicial officer may reasonably be suspected of bias. As the High Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553-554:
The requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds.
- [14]At paragraph 110 her Honour wrote:
The focus of the test upon the fair-minded lay observer confirms that it is the court's view of the public's view, not the court's own view, which is determinative.[5]
- [15]In Johnson, a majority of the High Court considered what is meant by the rule against bias. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ emphasised the importance of an understanding of the modern judicial role:
The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.[6]
- [16]In Michael Wilson & Partners Ltd v Nicholls, the High Court unanimously allowed the appeal, holding that there was no apprehended bias. In a joint judgment, Gummow A-CJ, Hayne, Crennan and Bell JJ made it clear that the mere fact that a trial judge had determined an interlocutory application will not usually give rise to an apprehension of bias. The Court found it significant that:
[i]n none of the applications was Einstein J required to make, and in none of the applications did he make, any determination of any issue that was to be decided at trial ... in none of the applications was it necessary for Einstein J to make any finding about the reliability of any party or witness, and in none did he make such a finding. Nor was Einstein J required to make any choice between competing versions of events. All that was required, and all that was found, was that there was apparently credible evidence of a sufficient risk of dissipation of assets to warrant making the confidentiality orders.[7]
- [17]As to apprehended bias, as I noted before, Ebner v Official Trustee and Bankruptcy at paragraphs 6 and 8 is the leading authority. At paragraph 6 their honours wrote:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.[8]
- [18]Their Honours go on at paragraph 8 to observe:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[9]
- [19]Judicial officers are required to discharge their professional duties unless disqualified by law. This includes the proper case management of the litigation before them to ensure the effective and efficient use of the Commission's resources. They should not accede too readily to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of judicial officer in their own cause.[10]
Grounds for recusal
- [20]I will now briefly deal with the grounds for recusal advance by the appellant.
- [21]Ground 1 relied upon by the appellant is misconceived. In short, the appellant submitted that by limiting the trial days from 5 days to 2 days, I had pre judged and/or predetermined the matter without regard to the outlines evidence of each witness. It was submitted that the appellant's right was suppressed and the right of the appellant to conduct his appeal somehow harmed. Further, that the decision to limit the hearing was unreasonable, irrational and arbitrary.
- [22]The transcript of the mention on 22 May became available during the hearing of the application and an adjournment was granted to allow the parties to read it and to make any further submissions. As the transcript of the proceedings of 22 May reveal, the trial was not limited by order or otherwise to two days. The appellant relied on the Minister for Immigration v Lee[11] and, in particular page 13. That decision is not relevant to the matters under consideration. It dealt with an application for an adjournment – an exercise of a statutory discretion in a matter before the immigration tribunal.
- [23]Mr McLeod submitted, that ground 1 is artificial. Because the matter is listed for 5 days does not mean that it must run five days. On his submission, the Commission has done no more than to case manage the matter to ensure the matter is heard within the confines of the appeal before the Commission. At the mention on 22 May, the Commission set a timetable for the conduct of the matter. As was submitted by Mr McLeod, the appellant fails to appreciate the ambit of the appeal having regard to the order that was made by Martin J. As he submitted the scope of the appeal is limited to the meeting of Mr Mitchell on 11 Nov of 14 and some prior conduct by way of discussion with Mr Mitchell. That seems to be accepted in part by the appellant. The appellant's reliance on BCC v Gillow[12] again misunderstands the issue that was determined by the Industrial Court. It has no relevance to the matter before the Commission.
Grounds 2 and 3
- [24]Grounds 2 and 3 will be dealt with together as they have a similar theme. The grounds are based upon the assumption that the appellant has been prevented from calling evidence. He has not. As the transcript reveals, no restriction was placed on the appellant's ability to call or to lead evidence. Reference was made to the decision in State of Queensland v Saville a decision of Hall P. It was a case about a statutory right of an employer to be heard before an Industrial Magistrate. Again, it is not valid or relevant to the issue to be determined in this matter.
- [25]This matter was originally set down for five days commencing on Monday 28 May. That was reduced to three days as a consequence of the mention on 22 May after considering the nature and scope of the appeal as evidenced by the Consent Order and the findings of Industrial Commission Fisher, which was ultimately upheld by Martin J. In the email of Mr Abdullah dated 19 May he specifically identified some 10 witnesses to be called. In particular, he attached to those witnesses the date and the estimated length of time each would be required to give evidence. Of particular note is the appellant who would, according to Mr Abdullah be required to give evidence for one and half days.
- [26]The issue to be determined by the Commission, as I said before, is a relatively straight forward one. It requires the Commission to assess whether the appellant has sustained an aggravation of a pre-existing psychiatric condition as a result of an incident which occurred on 11 November 2014. Importantly, whether or not a particular event arose prior to the decompensation was a factor in, or contributed to, the injury is not within the scope of the appeal. The concern at the length of the hearing is set against the background that the respondent was not calling any evidence, had already accepted that the appellant had a pre-existing psychiatric condition and that notice had been given to the appellant that some of the witnesses proposed to be called by the appellant would be challenged on the basis of relevance.
- [27]What transpired at the mention was the programming of various witnesses which were then agreed upon. The appellant would give his evidence first, Janet Verbyla, Jane Farmer and Seprina Budden in the afternoon. Mr Leslie Mitchell was proposed to give his evidence on Tuesday, Dr Madden and Dr Mellice were organised for Tuesday afternoon. Ms Sims, a late addition, was also to be made available for Tuesday afternoon. Mr Abdullah agreed at the mention that Professor Bullen and Professor Afhock would not be required to give evidence. They were proposed to be called as rebuttal witnesses notwithstanding that the Respondent did not propose calling any evidence. Wednesday would be kept free. As the transcript reveals:
HIS HONOUR: So I'll keep Wednesday aside with the court up there, just in case something happens and we need it, but we probably don't need the Thursday, Friday now, I wouldn't have thought.
MR McLEOD: I think that's right, having regard to
HIS HONOUR: Do you agree with that, Mr Abdullah?
MR ABDULLAH: Tentatively, I agree with that, your Honour.
HIS HONOUR: Yes. Well, so we've really got a day set aside for ourselves, if we need it. The Wednesday is set aside
MR ABDULLAH: For?
HIS HONOUR: if we need it.
MR ABDULLAH: If we need it.
HIS HONOUR: Yes.
MR ABDULLAH: For the witnesses.
- [28]A discussion then ensued about the provision of written submissions.
- [29]In terms of the medical evidence, Mr Abdullah identified 3 witness: Dr Martin Byrne, Dr Vern Madden and Dr Andrew Mellis. In light of the fact that the pre-existing psychiatric condition is not in issue, Dr Byrne was not ultimately required. He was excused from attending. In terms of Dr Mellis it was recorded that Dr Mellis was originally be required at 3pm on 1 June "with continued hearing at another date to be fixed". Ultimately, Dr Mellis would give his evidence on Tuesday afternoon. In his submissions, Mr Abdullah made much of an apparent refusal by me to allow Dr Madden to give evidence. His assertion, as the transcript reveals is incorrect. Mr Abdullah's submission also appears to be based upon the belief that to seek to ask the relevance of a particular witness or to inquire what a witness might say was a prejudging. However, the observation made by Lord Walker of Gestingthorpe for the Privy Council in Almeida v Opportunity Equity Partners Ltd also applies in this case:
The judge's interventions were motivated, not by partiality, but by the wish to understand the evidence.[13]
- [30]Notwithstanding the content of the appellants application, no witness has been prevented from attending the hearing, no direction has been given to suppress the appellant's right to present or to call evidence.
Ground 4
- [31]Ground 4 of the application is misconceived. It is based, in part, on s 533 of the Industrial Relations Act which deals with the intervention of the Minister before an Industrial Tribunal. Equally, reliance on s 551 of the Industrial Relations Act is also irrelevant. That section deals with the rule making power by the Governor in Council. The objection seems to be based on an assumption that the University of Southern Queensland has been given a right to be heard or a right to "intervene". It has not. The University of Southern Queensland appeared at the mention on 22 May to object to the appellant's Attendance Notices to produce and attend to give evidence served on Jane Farmer; Seprina Budden; Tony Ahfock; Leslie Mitchell; and Janet Verbyla all employees of the USQ. Ms Laura Hillman, a Senior Associate with Clayton Utz attended on behalf of the USQ to object to the Notices in accordance with the Industrial Relations Tribunal Rules. Clayton Utz were given leave for the sole purpose to make submissions in relation to the objection raised in relation to the Notices issued by the appellant and as set out in their correspondence of 22 May 2018 a copy of which was given to Mr Abdullah. The basis of the USQ objection can be summarised as follows:
- (a)The attendance of Jane Farmer; Seprina Budden; Tony Ahfock; Leslie Mitchell; and Janet Verbyla are not relevant to the matters the subject of the Appeal; and
- (b)The documents sought in the Notices to Jane Farmer; Seprina Budden; Tony Ahfock; Leslie Mitchell; and Janet Verbyla are not relevant to the appeal and I any event, the vast majority of documents sought are already in the possession of the appellant.
- [32]In regard to the Notice served on Mr Mitchell, an objection was raised in particular:
- (a)Why the letter of appointment of Mr Mitchell, a document which is confidential to the USQ is relevant to the appeal; and
- (b)The remaining documents sought by the appellant are either already in his possession or are not relevant to the appeal.
- [33]Mr Abdullah misunderstood the reason for Ms Hillman's attendance. Notwithstanding that it was explained to Mr Abdullah that USQ was not intervening he still is under the mistaken belief that that USQ was intervening or becoming a party to the proceedings. As he said to me in the hearing of this application "it is intervention in our eyes."The transcript of the mention reveals as follows:
MR ABDULLAH: Ms Hillman. Sorry. Your Honour, may I seek clarification whether Ms Hillman can be a party to these proceedings, in the first place?
HIS HONOUR: I've given her leave.
MR ABDULLAH: I ‑ ‑ ‑
HIS HONOUR: She's objecting to, on behalf of those that are listed on the – list of witnesses and have been served attendance notice for production to give evidence. She's objected to some aspects of that and so I have given her leave to attend, for that purpose.
MR ABDULLAH: Is that the practice, your Honour, if I may ask?
HIS HONOUR: She's been given leave, so that's the practice. Yes.
MR ABDULLAH: Is – I understand that and lawyers are not allowed to ‑ ‑ ‑
HIS HONOUR: No. No. No. She's not appearing on the hearing. She's appearing on the production of the attendance notices, all right?
MR ABDULLAH: Oh.
HIS HONOUR: Whether or not her client's employees are required to attend and to produce the things that you've asked them to produce and that's her objection. That's stated in the correspondence, what she's here to do and she objects to those and so that's what we're doing now. We're going through it and making sure that her clients know what their obligations are, as far as next week is concerned, in Toowoomba, okay, so that they comply with the attendance notice for production to give evidence that's been issued by this Commission. If they're not required to give evidence or to produce, they're excused and that's what we've been doing, okay? So that's why she's here.
MR ABDULLAH: Thank you for the clarification.
- [34]As it became apparent during the mention, many of the documents identified in the schedule to the Attendance Notice had already been produced. Mr Abdullah explained to the Commission that he thought (adopting the Malaysian practice) that the originals needed to be produced rather than copies. He also raised a suggestion that the documents were "fabricated". After discussion, Ms Hillman on behalf of USQ agreed that some original documents would be produced to the appellant. Rule 61 of the Industrial Tribunal Rules gives the Commission the ability to set aside part or all of an attendance notice. The USQ challenges the notices under the Rules. As it was entitled to do.
Ground 5
- [35]Finally, Ground 5 makes reference to s 531 of the Industrial Relations Act which provides that the Commission is to be guided in it decisions by equity, good conscience and the substantial merits of the case. The mention was, as I said before, convened to manage the hearing. To ensure that the Commission uses its time in an efficient and effective manner in light of the nature of the appeal that it has to determine. Again, the basis for this recusal is misconceived. No evidence has been heard, no submissions made, no decision given.
Conclusion
- [36]The appellant has not demonstrated a matter or matters which might lead a fair minded lay observer to consider that I might not bring an impartial mind to the matters that I will be called upon to decide. Secondly, the appellant has not shown a logical connection between the matter or matters and the feared deviation from deciding the case on its merits. I have not been persuaded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question that I am required to decide.[14]
- [37]Accordingly, the application is dismissed.
Footnotes
[1] [2017] ICQ 004.
[2] (2000) 201 CLR 488, [11].
[3] (2000) 205 CLR 337.
[4] [2018] QSC 88, [109].
[5] Ibid [110].
[6] (2000) 201 CLR 488.
[7] (2011) 244 CLR 427, 447.
[8] (2000) 205 CLR 337, [6].
[9] Ibid [8].
[10] Re JRL; Ex p CJL (1986) 161 CLR 342 at 352; Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295; Ebner v Official Trustee, above, at [19]–[23]; and Raybos Australia Pty Limited v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.
[11] 249 CLR 332.
[12] Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007.
[13] [2006] UKPC 44, [103].
[14] Johnson v Johnson (2000) 201 CLR 488, [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.