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McInally v Workers' Compensation Regulator QIRC 101
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
McInally v Workers' Compensation Regulator QIRC 101
Workers' Compensation Regulator
Objections to proposed Attendance Notices to Give Evidence
28 June 2019
13 May 2019
WORKERS' COMPENSATION – APPEAL AGAINST DECISION – where parties object to Attendance Notices to Give Evidence – whether evidence of witnesses should be allowed or set aside.
Criminal Code 1899
Transport Operations (Road Use Management) Act 1995
Workers' Compensation and Rehabilitation Act 2003
Church v Simon Blackwood (Workers' Compensation Regulator)  ICQ 031
Harris v Caladine (1991) 172 CLR 84
R v Pilgrim (1870) LR 6 QB 89
Mr B.McInally, the appellant, representing himself.
Mr P. O'Neill, Counsel, directly instructed by Ms L. Shaw of the Workers' Compensation Regulator
- Mr Brett McInally ("the appellant") appeals the decision of the Workers' Compensation Regulator ("the respondent") which confirmed the earlier decision of the Inghams Enterprises Pty Ltd ("Inghams") self-insurance unit to reject his application for compensation for physical injuries.
- By way of background, the incident which gave rise to the appellant's WorkCover claim was a motor vehicle collision which occurred after the appellant, mid-shift, walked to the car park, entered his motor vehicle and left the work site. A short time later his car collided with a truck driven by Mr Kevin Palmer, an employee of the Brisbane City Council ("BCC").
- In part, the Respondent contends that by virtue of the manner in which Mr McInally drove his vehicle after exiting the Ingham premises on the evening of the accident, he contravened s 328A of the Criminal Code Act 1899 – Dangerous Operation of a Vehicle. Further, depending on the work group of which Mr McInally was part on the night of the incident, he was not on a break or ordinary recess at the time he exited the premises, nor did he have authority to leave.
- The matter was mentioned before me on 17 April 2019, whereat both parties foreshadowed objections to witnesses that were to be called at the hearing later this year. Subsequent to the filing of outlines of submissions, the matter was heard on 13 May 2019 for the purposes of determining whether the proposed Attendance Notices would be allowed or set aside.
- It was also agreed at the mention that the appellant's friend, Mr Brian Sibley, who was originally included on the appellant's witness list, will not be called as a witness.
- The Industrial Relations (Tribunal) Rules 2011 confer upon the Commission an unqualified discretion to set aside part or all of an attendance notice:
61 Setting aside attendance notice
The court, commission or registrar may, by order, set aside part or all of an attendance notice.
Objections to the Appellant's Witnesses
Magistrate Zac Sarra
- Following the collision, the appellant was required to appear before the Wynnum Magistrates Court, charged under s 83 of the Transport Operations (Road Use Management) Act 1995 for driving without due care and attention or without reasonable consideration for other persons using the road.
- After two separate review mentions, the Magistrates Court proceedings, which protracted over six months, were eventually struck out – a fact which the appellant contends inures to his benefit and proves that the prosecution was bereft of evidence against him.
- The respondent's argument centres upon s 36 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"), which provides inter alia that an injury is taken not to have arisen out of, or in the course of, the worker's employment if the event happens while the worker is in control of a vehicle and contravenes s 328A of the Criminal Code 1899:
- A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanor.
"operates, or in any way interferes with the operation of, a vehicle dangerously" means operate, or in any way interfere with the operation of, a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances…
- In circumstances where the striking out of the Magistrates Court proceedings (to his mind) vindicated him, the appellant eschews the proposition put by the respondent that he ought not receive workers' compensation for being said to have operated his vehicle dangerously.
- The respondent objects to Magistrate Sarra giving evidence because, in a hearing de novo, it is irrelevant and will almost certainly be the subject of an objection by Crown Law. For his part, the appellant contends the Magistrates Court proceedings are relevant because it dealt with much the same matters as the appeal before the Commission. He also regarded the supposition that Crown Law would inevitably intervene to object as speculative.
- I agree that the proceedings before the Magistrates Court and the reasons as to why Magistrate Sarra struck out the charges against the appellant are not relevant in this, a workers' compensation proceeding, before the Commission. In Church v Simon Blackwood (Workers' Compensation Regulator), Martin P clarified the nature of a hearing de novo. He cited the following remarks by Dawson J:
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'…
A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again…
- Dawson J, in describing the nature of a hearing de novo, referred to the parties commencing "the application again". Put differently, Lush J has said:
Generally speaking, on appeal to the quarter sessions the justices are not limited to the evidence before the petty sessions, but they have to hear the whole matter de novo, and the issue is the same, and the justices are put in the same position as justices in the court below.
- The minutiae of what transpired in the Magistrates Court has no bearing whatsoever on the determination of this appeal. The Commission is to hear the matter afresh, though the issues may be the same. I therefore exercise my discretion to set aside any Attendance Notice directed to Magistrate Sara insofar as it relates to this matter.
Tania Lindsay and James Fawcett
- The question of whether Ms Tania Lindsay, of Ingham's self-insurance unit, and Mr James Fawcett, of the respondent's review unit, are relevant to give evidence can be disposed of for the same reasons as those outlined above in respect of Magistrate Sarra.
- In a hearing de novo the matter is heard afresh and thus the evidence of Ms Lindsay and Mr Fawcett in respect of why they rejected the appellant's claim in the first instance (for the self-insurer and the respondent's review unit, respectively) is irrelevant.
- The job presently before the Commission does not involve a review into the selfinsurer's decision or, as Mr O'Neill put it, "a royal commission into the processes of the Self-Insurer". The opinion of, and determination reached by, these individuals does not assist the Commission in deciding the key question of whether the appellant contravened s 328A of the Code.
- For that reason, I decline to issue Attendance Notices for Ms Lindsay and Mr Fawcett.
Colin Jensen – BCC Vehicle Owner
- Mr Jensen is the CEO of BCC and the putative 'owner' of the vehicle with which the appellant collided. His name appeared on correspondence exchanged between BCC and the appellant concerning (as best I understand) liability and insurance for the collision.
It is said by the appellant that this witness will give evidence concerning that correspondence and how, after issuing three separate notices of demand, he failed to prove the appellant's liability and thus ceased further contact.
- Mr Jensen's knowledge essentially extends only to correspondence which bears his name. He was not an eye witness to the collision, nor was he employed by Inghams. It is difficult to see how his evidence would assist the appellant or the Commission in reaching its decision.
- I disagree that Mr Jensen has an "intimate knowledge of what actually did happen". Even if he were aware of the "statements that have been used by the [respondent] in [its] denial of [the appellant's workers' compensation] claim", this does not bear upon that key question of whether the appellant contravened s 328A of the Code.
- I therefore decline to issue an Attendance Notice directed to Mr Jensen.
Dawn Crisafulli – Union Site Coordinator
- Ms Crisafulli is said to give evidence of the damage and patterns of workplace harassment and bullying endured by the appellant across multiple Inghams' sites over many years.
- The respondent contends that Ms Crisafulli's evidence is not relevant in circumstances where the appellant's appeal turns on the vehicular collision which gave rise to physical injuries on 17 November 2016. As such, what occurred years or months earlier at Inghams cannot be relevant.
- In any case, the respondent's argument is that the appellant is himself best placed to give evidence concerning the bullying which he suffered and how this may be relevant to his leaving the workplace before the collision. Ms Crisafulli's evidence would, in that sense, be merely second-hand evidence.
- In the appellant's submissions, he supports the giving the evidence by Ms Crisafulli because the bullying "was a private matter" which he did not openly discuss. She was his "counsel", the person in whom he would confide his problems when things were difficult. Thus, having worked as the union site coordinator at Inghams for about five or six years, she might well have been aware of his tendency to "disappear" after being bullied and that he sometimes "might not come back for a day or two".
- Tendered were text messages exchanged between the appellant and Ms Crisafulli which entail the appellant appealing for her assistance following another episode of bullying as well as her instructive response.
- I am prepared to give the appellant the benefit of the doubt and allow the issuance of an Attendance Notice directed to Ms Crisafulli. There is some prospect that she will be able to assist the Commission to understand whether or not it was customary for the appellant to "disappear" and whether this custom was known and tacitly accepted among others at Inghams.
Objections to the Respondent's Witnesses
David Milton – Distribution Team Leader at Inghams
- The respondent submits that Mr Milton's evidence will relate, in particular, to the fact that the appellant would disappear on occasions from work and not complete his shift. Further, that he was not aware where the appellant was going.
- The appellant argues that, because Mr Milton was not actually at the scene of the incident, much like Mr Jensen for instance, his evidence is not relevant.
- In my view, Mr Milton may give evidence before the Commission for the same reason as to why Ms Crisafulli can give evidence, namely, their capacity to shed light upon the circumstances of the appellant's abrupt departures from the workplace.
Ian Allen – eye-witness to the incident
- Along with the driver of the BCC truck, Mr Palmer, the respondent seeks to call Mr Allen, who witnessed the events on 17 November 2016 whilst operating his vehicle. It is said that his evidence will be inter alia that he observed the appellant's car "drive straight into the front of the council truck". He is an eye-witness.
- The appellant objects on the ground that there is a "possible conflict of interest and collusion" because Mr Allen is employed by BCC and knew Mr Palmer. There is no actual evidence of a conflict of interest and collusion. The appellant's protestations are purely speculative, a bare assertion unsupported by evidence.
- As an eye-witness to the collision, Mr Allen's evidence is clearly relevant to this appeal. The appellant will, of course, have the opportunity through cross-examination to test the probative strength and veracity of Mr Allen's evidence.
David Haywood – eye-witness to the incident
- Like Mr Allen, Mr Haywood observed the incident. He is a truck driver who is contracted by Inghams to transport its products. On the evening of the incident, it is said that he observed the positioning of both vehicles at the time of collision, and subsequently provided assistance to the drivers before telephoning emergency services.
- The appellant objects to Mr Haywood giving evidence because, in the statement that he submitted to the police, his recollection was vague. He "didn't describe the incident"; instead, he merely a "washing machine of headlights", submits the appellant.
- It is useful to reproduce a statement by Mr O'Neill, Counsel for the respondent (emphasis added):
Can I note, that in terms of the objection that is raised by Mr McInally, both to Mr Allen and Mr Haywood's evidence, it goes to issues of credibility. It goes to issues of alleged inconsistencies, perhaps in other statements that they've made. They are all issues that are addressed in cross-examination and then in submission to the Commission. It doesn't mean that their evidence is not relevant. In fact, it may be of relevance and assistance to Mr McInally to have that evidence and test that evidence and then be able to make submissions to the Commission about that evidence being rejected, but certainly it's not a basis for those witnesses not being allowed to give evidence, in the respondent's submission.
- I agree. The objections of the appellant, although not without merit, are most effectively addressed during cross-examination. It could be that the appellant advances his case by testing the credibility of Mr Haywood. His objections, however, do not favour a conclusion that the entirety of this evidence should be disregarded as irrelevant.
- For the foregoing reasons, I have decided to allow Ms Crisafulli to give evidence, as well as the witnesses in relation to whom the respondent has already filed Attendance Notices. On the contrary, I am not persuaded to allow Magistrate Zac Sarra, Colin Jensen, Tania Lindsay and James Fawcett to give evidence before the Commission.
- I order accordingly.
 Hereinafter 'the Code'.
  ICQ 031, 7-8.
 Harris v Caladine (1991) 172 CLR 84, 124-125 (citations omitted, emphasis added).
 R v Pilgrim (1870) LR 6 QB 89, 9 (emphasis added).
 Exhibit 1.
- Published Case Name:
McInally v Workers' Compensation Regulator
- Shortened Case Name:
McInally v Workers' Compensation Regulator
 QIRC 101
Member Knight IC
28 Jun 2019