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  4. Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator - [2022] QIRC 251

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Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator[2022] QIRC 251

Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator[2022] QIRC 251

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator & Anor [2022] QIRC 251

PARTIES:

Phan, Ngan Thanh, t/as Right Choices Construction Queensland

(Applicant)

v

Workers' Compensation Regulator

(First Respondent)

&

Wayne Robert Williams

(Second Respondent)

CASE NO:

B/2021/16

PROCEEDING:

Application

DELIVERED ON:

28 June 2022

HEARING DATE:

On the papers

MEMBER:

O'Connor VP

HEARD AT:

On the papers

ORDERS:

  1. The Application is dismissed.
  1. I will hear the parties in respect of the question of costs.

CATCHWORDS:

INDUSTRIAL LAW – WORKERS' COMPENSATION – REOPENING PROCEEDINGS – STANDING – where the regulator ruled that appellant was a worker – where third party aggrieved by decision – whether matter can be reopened after perfected order – whether party can be joined as party aggrieved – whether party has standing to intervene

LEGISLATION:

Industrial Relations Act 1999 (Qld) (repealed) s 331

Industrial Relations Act 2016 (Qld) s 484, s 485

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 549

CASES:

Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223

Bailey v Marinoff (1971) 125 CLR 529

Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 7

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

DJL v The Central Authority (2000) 201 CLR 226

EB v CT (No 2) [2008] QSC 306

Fowler v Workers' Compensation Regulator [2019] QIRC 149

Gamser v Nominal Defendant (1977) 136 CLR 145

Grierson v The King (1938) 60 CLR 431

Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146

Q-Comp v Feneley [2010] ICQ 46

Q-Comp v Helesic [2012] ICQ 11

Toll North Pty Ltd v Q-Comp & Anor [2013] QIRC 99

APPEARANCES:

Application dealt with on the papers

Reasons for Decision

  1. [1]
    On 29 June 2020 a perfected order was made in matter WC/2019/132 – Wayne Robert Williams v Workers' Compensation Regulator. The order was made with the consent of the parties and was in the following terms:
  1. That the appeal (WC/2019/132) be allowed;
  1. That the review Unit decision dated 21 June 2019 be set aside and substituted with the following decision:
  1. Mr Williams was a worker employed by Right Choices Construction when he sustained his injuries on 25 July 2018 for the purposes of section 11 of the Workers' Compensation and Rehabilitation Act 2003;
  1. Each party bear their own costs.
  1. [2]
    Mr Williams was injured at the Robina town centre on 25 July 2018. Workcover accepted that Mr Williams was a worker at the time. Mr Phan successfully appealed that decision. The First Respondent by a decision dated 21 June 2019 set aside the decision of WorkCover of 21 December 2018 and substituted a new decision to reject the Second Respondent's claim for compensation.
  1. [3]
    On 19 July 2019 the Second Respondent filed in the Industrial Registry an appeal seeking to set aside the decision of the First Respondent dated 21 June 2019.
  1. [4]
    The First Respondent reconsidered its position and concluded that the Second Respondent was a worker within the meaning of the Act. The change in position of the First Respondent engendered the above consent order which finalised matter WC/2019/132.
  1. [5]
    On 5 March 2021 this application was filed in the Industrial Registry. The Applicant in these proceedings, Mr Ngan Thanh (John) Phan seeks the following orders:
  1. That the order of 29 June 2020 be set aside
  1. That leave be granted pursuant to s 484 of the Industrial Relations Act 2016 to reopen proceedings in WC/2019/132
  1. That Mr Phan be joined as a Respondent.
  1. In the alternative that Mr Phan be joined as an intervener.
  1. That the Commission make appropriate orders to allow necessary evidence to be heard.
  1. [6]
    The First Respondent contends that the application before the Commission raises two jurisdictional issues which need to be determined before consideration can be given to the exercise of the discretion to re-open the proceedings.
  2. [7]
    The first issue involves a consideration as to whether the Applicant has the standing to bring the application.
  3. [8]
    The second issue involves a consideration as to whether ss 484 or 485 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provide a source of power to reopen an appeal brought under the Workers' Compensation and Rehabilitation Act 2003 (Qld).
  4. [9]
    The Second Respondent supports and adopts the submissions of the First Respondent and agrees with the First Respondent that the application should be dismissed on the grounds that Applicant does not have standing to bring the application or in the alternative because there is not source of power for the relief sought by the Applicant. The Second Respondent seeks its costs in respect of the application.

Statutory Provisions

  1. [10]
    The Applicant relies upon ss 484 and 485 of the IR Act being the statutory mechanism under which standing may be granted. Those sections relevantly read:

484  Power to reopen proceedings

  1. (1)
    On application by a person mentioned in section 485, proceedings may be reopened by—
  1. (a)
    for proceedings taken before the full bench—the full bench; or
  1. (b)
    otherwise—the commission.
  1. (2)
    If the commission reopens proceedings, it may—
  1. (a)
    revoke or amend a decision or recommendation made by it; and
  1. (b)
    make the decision or recommendation it considers appropriate.
  1. (3)
    If a recommendation of the commission has been acted on by the Governor in Council and the commission later revokes or amends the recommendation, the Governor in Council may—
  1. (a)
    cancel the action taken on the recommendation to accord with the commission’s revocation or amendment; or
  1. (b)
    amend the action to accord with the commission’s revocation or amendment.
  1. (4)
    Failure to give notice to a person of the proceedings reopened under this section, or any part of the proceedings, leading to the making by the commission of a decision binding on the person—
  1. (a)
    does not invalidate or otherwise affect the decision; but (b) the person may apply to further reopen the proceedings if—
  1. (i)
    the person may apply for reopening of proceedings under section 485; and
  1. (ii)
    the person’s failure to participate in the previously reopened proceedings was because of the failure to give the notice.
  1. (5)
    If the commission grants an application for reopening, it may give the retrospective operation to its decision made in the reopened proceedings it considers appropriate.

485  Who may apply to reopen proceedings

An application for reopening of proceedings may be made by—

  1. (a)
    the Minister; or
  1. (b)
    a party to the proceedings; or
  1. (c)
    for proceedings other than proceedings relating to the making of a certified agreement or bargaining award—
  1. (i)
    an organisation whose members are bound or affected by, or dissatisfied with, the proceedings; or
  1. (ii)
    a person who is bound or affected by, or dissatisfied with, the proceedings, and who satisfies the commission the person is not an officer of, or acting for, an eligible association.
  1. [11]
    Section 549 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act') sets out who may appeal from a 'review decision'. That section relevantly provides:

549 Who may appeal

  1. (1)
    A claimant, worker or employer aggrieved by the decision (the appellant) may appeal to an appeal body against the decision of the Regulator or the insurer (the respondent).
  1. (2)
    An insurer aggrieved by 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) may appeal to an appeal body against the decision of the Regulator.
  1. (3)
    If the appellant is an employer—
  1. (a)
    the claimant or worker may, if the claimant or worker wishes, be a party to the appeal; and
  1. (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).
  1. (4)
    If the appellant is WorkCover, an employer may, if the employer wishes, be a party to the appeal.

Does the Applicant have standing to bring the current application?

  1. [12]
    It is not in dispute that the Applicant was not a party to the original proceeding. The only parties to that appeal were the First and Second Respondents. Moreover, the agreement giving rise to the Consent Orders filed in the Industrial Registry on 29 June 2020 involved only the First and Second Respondents.
  1. [13]
    The First Respondent contends that s 549(3) and (4) of the WCR Act does not give the Applicant an entitlement to become a party to the Second Respondent's appeal.
  1. [14]
    The First Respondent relies on the reasoning of Martin J in Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) ('Gillow'),[1] where his Honour wrote:

[55]  In Karas, Hall P recognised that Middleton and other cases were decided on an early version of the WorkCover Queensland Act 1996 and that it was doubtful whether a grant of leave to appear was consistent with s 549 of the WCR Act. His Honour was, with respect, correct. In the earlier legislation no provision was made for an employer to become a party to an appeal unless, of course, the employer was the appellant. That changed when s 549 of the WCR Act was amended to make specific provision for an employer to become a party to an appeal, that is, when WorkCover was the appellant.

[56]  Section 549 sets out a series of events which give rise to a right to various entities to become parties to an appeal. It should be noted that the amendments which give a specific, but restricted, right to employers to become a party to an appeal were made in the light of decisions of the Commission and the Court which allowed an employer to be heard on an appeal. The amendments made to s 549 added subsections 3 and 4 and, thus, gave an employer a limited right to take part in appeals. It would be inconsistent with the history of the legislation to conclude that, notwithstanding the confined legislative provisions allowing an employer to be a party, the general provisions of the IR Act can be called upon to allow an employer to take part in an appeal by other means.

[57]  The Commission does not have power to give an employer leave to appear on appeals under Chapter 13 Part 3 of the WCR Act.[2]

  1. [15]
    In Gillow, Martin J concluded that the BCC was not a 'party aggrieved' for the purposes of s 561 of the WCR Act. His Honour wrote:

[61]  Section 561 of the WCR Act allows a “party aggrieved” to appeal to this Court. The use of the term “party” should be construed consistently. Section 549 tells a reader who the parties to an appeal are or can be. Section 561 does not allow a person who has an interest, but was not a party to the proceedings in the Commission, to appeal. The BCC has no standing to appeal this decision.

  1. [16]
    Having considered s 549 of the WCR Act and having regard to the reasoning of Martin J in Gillow, I am left with the clear view that the Applicant could never become a party to the proceedings under the WCR Act, nor could he have sought or gained a right to be heard the matter. It must follow therefore, that the Applicant in these proceedings does not have standing to seek to have the consent order agreed to between the First and Second Respondents set aside.

The Application of Sections 484 and 485 of the IR Act

  1. [17]
    It is important to recognise in the present context that the consent order made by the Commission was a final order in that it finally determined all the rights of the parties in the principal cause between the First and Second Respondents.[3]
  1. [18]
    As a general rule, apart from some exceptions, orders which have been formally recorded or entered can only be varied or discharged on appeal.
  1. [19]
    The overriding policy of the law requiring finality in litigation is fundamental, and except in the exceptional circumstances, a Court will not reopen judgments or orders once they have been perfected.
  1. [20]
    In Bailey v Marinoff,[4] an order had been made that an appeal be dismissed if the appellant failed to file appeal books by a certain date. The appellant failed to comply, and an order dismissing the appeal was made and entered.
  1. [21]
    Barwick CJ, who agreed generally with the reasons of Menzies J and Walsh J, at 530-1 expressed the principle in the following terms:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.”

  1. [22]
    Menzies J, at 531, characterised the issue as:

… the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court.

  1. [23]
    His Honour considered, at 531-2, that:

However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end.

  1. [24]
    Walsh J, at 534, approached the question before the court as being whether:

… the Court has an inherent power to deal further with an appeal which by its formal order, not being at variance with its intended order, has already been dismissed.

and concluded, at 537, that:

… there is no inherent power to vary an order by which an appeal stands dismissed in a case such as the present one in which the order was formally drawn up and entered before any application to vary it was made …

  1. [25]
    The Commission does not have any inherent power.[5] As was observed by Hall P in Q-Comp v Feneley:[6]

Neither is there any express power vested in an Industrial Magistrate to relist or reopen a discontinued matter. As a tribunal of statutory creation, albeit a court of record, the Industrial Magistrates Court has no inherent jurisdiction. To succeed on the relisting/reopening point, those acting for Mr Feneley were required to make out a case of incidental or necessary power.

  1. [26]
    In support of the application, the Applicant seeks to rely on ss 484 and 485 of the IR Act and specifically on the words '…bound, or affected by, or dissatisfied with,' as those which, in his submission, establish the requisite nexus between himself and the order made in WC/2019/132 to grant standing.
  1. [27]
    The First Respondent contends that there is no power available to the Commission under the IR Act to reopen an appeal under the WCR Act. In particular, it is contended that ss 484 and 485 of the IR Act do not provide a source of power to grant the orders sought by the Applicant.
  1. [28]
    The Applicant submits that on the ordinary construction of s 485 it is clear that the Applicant, trading as Right Choices Construction, is a person bound or affected by or dissatisfied with the proceedings. It is submitted that the order of the Commission in WC/2019/132 that the Second Respondent was a worker employed by the Applicant resulted in:
  1. (a)
    WorkCover recovering compensation paid to Williams from the Applicant;
  1. (b)
    WorkCover imposing on the Applicant a pecuniary penalty in relation to the accident; and
  1. (c)
    The Applicant being exposed to a civil claim by the Second Respondent in relation to the accident.
  1. [29]
    In support of his submission the Applicant relies on a decision of Industrial Commissioner Dwyer in Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service).[7]
  1. [30]
    Dr Algahamdi made an application for reinstatement in the Commission. In the decision delivered on 19 May 2016,[8] Dr Algahamdi's application for reinstatement was dismissed in accordance with s 331 of the pre-amendment Industrial Relations Act 1999 (Qld).
  1. [31]
    In reliance on ss 484 and 485 of the IR Act, Dr Algahamdi filed an application to have her application for reinstatement reopened. The application was refused. In doing so, Commissioner Dwyer observed that the Commission has a discretionary power to reopen proceedings on an application by a party to those proceedings. Unlike the present proceedings, Dr Algahamdi was a party to the original proceedings, and her application did not involve an appeal under the WCR Act but rather fell within the industrial jurisdiction of the Commission.
  1. [32]
    Equally, the decision of Merrell DP in Fowler v Workers' Compensation Regulator ('Fowler'),[9] is not authority for the proposition that ss 484 and 485 of the IR Act may be relied upon to reopen proceedings commenced under the WCR Act. In Fowler, Merrell DP was called upon to determine whether he should exercise the discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered. In doing so, his Honour applied the common law principles relating to reopening as expressed by Applegarth J in EB v CT (No 2).[10]
  1. [33]
    In considering the application of s 484 of the IR Act, the starting point must be to look at the words, their context, and the purpose of the legislation.[11]
  1. [34]
    The Applicant's submission relies on the words 'person who is bound, or affected by, or dissatisfied with,' in s 485 but ignores the words '... and who satisfies the commission the person is not an officer of, or acting for, an eligible association.' The word 'person' must be read in the context of s 485(c)(ii) of the IR Act and concerns a 'person' who is bound, or affected by, or dissatisfied with an industrial matter under the IR Act and not the WCR Act.
  1. [35]
    The wording of s 485 does not fit comfortably with an appeal lodged pursuant to the WCR Act. The wording has relevance, for example, in respect of proceedings involving an application for an interpretation of an industrial instrument other than a certified agreement or bargaining award under s 467 of the IR Act. I am not convinced that s 485 and, in particular, subs (c)(ii) have application in the present proceedings.
  1. [36]
    I would accept the First Respondent's argument that ss 484 and 485 of the IR Act would not have application to an appeal brought under the WCR Act.

Conclusion

  1. [37]
    The Applicant has a difficult hurdle to overcome in satisfying the Commission that he has standing to bring this application. In my view, he does not.
  1. [38]
    For the reasons advanced above, the Applicant cannot be joined as a respondent to the proceedings under the WCR Act. The entitlement to become a party is relevantly determined by s 549(3) and (4) of the WCR Act. That section does not give the Applicant an entitlement to become a party. Even if the IR Act applied, the Applicant would have no right to 'intervene'.
  2. [39]
    The Applicant in these proceedings cannot seek to have the order entered by consent, set aside. Moreover, the order made by consent by the parties to the proceeding formally brought the proceedings to an end.
  3. [40]
    The power to reopen proceedings under the IR Act is found in subdivision 11 of Chapter 11. Under s 484, an application can only be brought by a person mentioned in s 485 of the IR Act. The Applicant cannot avail himself of subparagraph (a) or (b) of the section. In my view, s 485(c) has no current application in this Application. It is apparent from the language of s 485(c) of the IR Act that 'proceedings' relate to and is consistent with a proceeding in Part 2, Division 4 of Chapter 11 of the IR Act.

Order

  1. 1.The Application is dismissed.
  1. 2.I will hear the parties in respect of the question of costs.

Footnotes

[1]  [2016] ICQ 7 ('Gillow').

[2]  Ibid [55]-[57].

[3]  Order issued 29 June 2020.

[4]  (1971) 125 CLR 529, 530. See also Grierson v The King (1938) 60 CLR 431, 436; Gamser v Nominal Defendant (1977) 136 CLR 145; DJL v The Central Authority (2000) 201 CLR 226, 245; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146.

[5] Q-Comp v Helesic [2012] ICQ 11, [5]. See also Toll North Pty Ltd v Q-COMP & Anor [2013] QIRC 99 [40]-[42].

[6]  [2010] ICQ 46 [7].

[7]  [2021] QIRC 223.

[8]  Ibid.

[9]  [2019] QIRC 149 ('Fowler').

[10]  [2008] QSC 306.

[11] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384.

Close

Editorial Notes

  • Published Case Name:

    Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator & Anor

  • Shortened Case Name:

    Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator

  • MNC:

    [2022] QIRC 251

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    28 Jun 2022

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
Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223
2 citations
Jump To
Cite 1 - [2021] QIRC 223
Cite 2 - [2021] QIRC 223
Bailey v Marinoff (1971) 125 CLR 529
2 citations
Jump To
Cite 1 - (1971) 125 CLR 529
Cite 2 - (1971) 125 CLR 529
Brisbane City Council v Gillow [2016] ICQ 7
3 citations
Jump To
Cite 1 - [2016] ICQ 7
Cite 2 - [2016] ICQ 7
Cite 3 - [2016] ICQ 7
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
2 citations
Jump To
Cite 1 - (1997) 187 CLR 384
Cite 2 - (1997) 187 CLR 384
DJL v The Central Authority (2000) 201 CLR 226
2 citations
Jump To
Cite 1 - (2000) 201 CLR 226
Cite 2 - (2000) 201 CLR 226
EB v CT (No 2) [2008] QSC 306
2 citations
Jump To
Cite 1 - [2008] QSC 306
Cite 2 - [2008] QSC 306
Fowler v Workers' Compensation Regulator [2019] QIRC 149
2 citations
Jump To
Cite 1 - [2019] QIRC 149
Cite 2 - [2019] QIRC 149
Gamser v The Nominal Defendant (1977) 136 CLR 145
2 citations
Jump To
Cite 1 - (1977) 136 CLR 145
Cite 2 - (1977) 136 CLR 145
Grierson v R (1938) 60 CLR 431
2 citations
Jump To
Cite 1 - (1938) 60 CLR 431
Cite 2 - (1938) 60 CLR 431
Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146
2 citations
Jump To
Cite 1 - (2002) 54 NSWLR 146
Cite 2 - (2002) 54 NSWLR 146
Q-COMP v Feneley [2010] ICQ 46
2 citations
Jump To
Cite 1 - [2010] ICQ 46
Cite 2 - [2010] ICQ 46
Q-COMP v Helesic [2012] ICQ 11
2 citations
Jump To
Cite 1 - [2012] ICQ 11
Cite 2 - [2012] ICQ 11
Toll North Pty Ltd v Q-COMP & Anor [2013] QIRC 99
2 citations
Jump To
Cite 1 - [2013] QIRC 99
Cite 2 - [2013] QIRC 99

Cases Citing

Case NameFull CitationFrequency
Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator (No. 2) [2022] QIRC 3692 citations
State of Queensland (Office of the Governor) v Workers' Compensation Regulator [2025] QIRC 2102 citations
1

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