State of Queensland (Queensland Health) v Workers' Compensation Regulator
[2024] QIRC 10
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- Unreported Judgment
- State of Queensland (Queensland Health) v Workers' Compensation Regulator[2024] QIRC 10
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State of Queensland (Queensland Health) v Workers' Compensation Regulator[2024] QIRC 10
State of Queensland (Queensland Health) v Workers' Compensation Regulator[2024] QIRC 10
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 010 |
PARTIES: | State of Queensland (Queensland Health) (Applicant) v Workers' Compensation Regulator (Respondent) |
CASE NO.: | B/2023/42 |
PROCEEDING: | General Application |
DELIVERED ON: | 22 January 2024 |
DATES OF WRITTEN SUBMISSIONS: | Applicant's written submissions filed on 26 May 2023 and written submissions in reply filed on 4 July 2023 Respondent's written submissions filed on 20 June 2023 |
MEMBER: | Merrell DP |
HEARD AT: | On the papers |
ORDER: | The order contained in paragraph [52] of these reasons. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – STEP IN PROCEEDING: WHAT CONSTITUTES – Applicant employed a worker who made an application for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 – ultimately the worker's application was accepted by a review decision of the Respondent – Applicant appealed against the review decision – conciliation conference held before the Queensland Industrial Relations Commission during which the Applicant advised the Respondent that it proposed to make an application to have the worker independently medically examined – independent medical examination report received by the Applicant and disclosed to the Respondent – Applicant proposed further directions for the conduct of its appeal – Applicant subsequently advised by the Industrial Registry that its appeal had lapsed pursuant to r 230(1) of the Industrial Relations (Tribunals) Rules 2011 – Applicant applied for an order pursuant to r 230(2) of the Industrial Relations (Tribunals) Rules 2011 to take further action in respect of its appeal – consideration of whether the Applicant's appeal had lapsed within the meaning of r 230(1) of the Industrial Relations (Tribunals) Rules 2011 – consideration of whether the Applicant, within the meaning of r 230(1)(b) of the Industrial Relations (Tribunals) Rules 2011, had taken action in relation to its appeal for at least one year since the last action was taken – Applicant, by the disclosure of the independent medical examination report, had taken action in relation to its appeal at least one year since the last action was taken – r 230(1) of the Industrial Relations (Tribunals) Rules 2011 not enlivened such that the Applicant's appeal did not lapse – decision made pursuant to s 451(2)(b) of the Industrial Relations Act 2016 that Applicant's appeal has not lapsed – Directions made for a further conciliation conference |
LEGISLATION: | Industrial Relations Act 2016, s 451 and s 553 Industrial Relations (Tribunals) Rules 2011, r 41 and r 230 Rules of the Supreme Court (Qld), O 90, r 9 Uniform Civil Procedure Rules 1999 (Qld), r 211 and r 389 Workers' Compensation and Rehabilitation Act 2003, s 32, s 549, s 552A, s 553 and s 556 |
CASES: | Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272 Barnes v Q-COMP & Hatch Pty Ltd [2017] QIRC 025 Black & Black v De Waard and De Waard & Anor [2021] QDC 138 CitiCorp Australia Limited v Metropolitan Public Abattoir Board [1991] QSCFC 59; [1992] 1 Qd R 592 Porzuczek v Toowoomba District Health Services [2007] QSC 177 Savage v Q-COMP [2013] QIRC 22 Sharples v Workers' Compensation Regulator [2020] ICQ 020 Sparkman's Electrical Pty Ltd v Harberson & Anor [2017] QSC 156 Vibe Allerup and Heka Pty Ltd t/as Brisbane Dental Group [1999] QIRComm 20; (1999) 160 QGIG 112 William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6; (1963) 109 CLR 490 |
Reasons for Decision
Introduction
- [1]On 25 March 2021, the State of Queensland (Queensland Health) ('the State') filed an appeal in the Queensland Industrial Relations Commission ('the Commission') against a review decision of the Workers' Compensation Regulator ('the Regulator') dated 25 February 2021 ('the State's appeal').[1] The appeal was made pursuant to the Workers' Compensation and Rehabilitation Act 2003 ('the Act'). The matter number of that appeal is WC/2021/36. The review decision, the subject of the State's appeal, concerned an employee of the State employed in Queensland Health ('the worker').
- [2]The State was subsequently informed that its appeal had been lapsed by the Industrial Registry, pursuant to r 230 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), as at 23 February 2023.[2]
- [3]By general application filed on 26 May 2023, the State applied, pursuant to r 230(2) of the Rules ('the State's application'), for an order for the appeal to proceed and for directions to be issued in terms of the draft Directions Order contained in its application.
- [4]Pursuant to a Directions Order I issued on 12 June 2023, I ordered the parties to file written submissions in respect of the State's application, and that in the absence of any party applying for leave to make oral submissions in respect of the State's application by 4.00 pm on 11 July 2023, I would decide the State's application on the papers.
- [5]The State and the Regulator filed written submissions. The Regulator opposes the State's application. Neither party made an application to make oral submissions. In those circumstances, I will determine the State's application on the papers.
- [6]Having regard to the submissions made by the parties, there are two questions for my determination, namely:
- did the State's appeal lapse because of the application of r 230(1) of the Rules? and, if so
- pursuant to r 230(2) of the Rules, should I make an order allowing the State to take further action on its appeal?
- [7]For the reasons that follow, the State's appeal did not lapse because r 230(1) of the Rules was not enlivened, such that it becomes unnecessary to consider the application of r 230(2) of the Rules.
Relevant background
- [8]As best as I can gather from the material that has been filed by the parties, the worker made an application for workers' compensation under the Act in relation to a psychiatric or psychological injury and that, ultimately, by its review decision, the Regulator determined the worker had a compensable injury. It is that review decision that is the subject of the State's appeal.
- [9]On the undisputed evidence before me, after the filing of the State's appeal, the following relevant events occurred:
- on 2 February 2022, the State and the Regulator, pursuant to s 552A of the Act, participated in a conference before Industrial Commissioner Pidgeon ('the conference'), the purpose of which was to discuss the future programming and conduct of the appeal;[3]
- during the conference, the State foreshadowed its intention to seek an order pursuant to s 556 of the Act, for the worker to attend an independent medical examination ('IME') with a psychiatrist to assist in identifying the causative development of the worker's injury the subject of the State's appeal and, at the conclusion of the conference, the parties were advised that the State's appeal would be held in the Registry pending the determination of the IME issue;[4]
- on 8 March 2022, the State's solicitors emailed the Regulator, confirming the State's intention to file an application for an order pursuant to s 556 of the Act, but also proposed the names of psychiatrists and their available dates to examine the worker, and sought the Regulator's consent for the worker to be examined by one of those psychiatrists;[5]
- by email dated 15 March 2022, the Regulator advised the State's solicitors that it would neither consent nor oppose an application made under s 556 of the Act, but that the worker had advised the Regulator that they would consent to attending an IME with one of the psychiatrists identified by the State;[6]
- by email dated 30 March 2022, the State's solicitors advised the Regulator, amongst other matters, that the particular psychiatrist nominated by the worker to conduct the IME was not available for some time and that the State requested the Regulator to seek the worker's consent to attend an IME with Dr Frank Varghese, Psychiatrist on 16 September 2022 ('Dr Varghese');[7]
- by email dated 27 April 2022, the Regulator advised the State's solicitors that the worker was willing to attend a IME with Dr Varghese on 16 September 2022;[8]
- on 16 September 2022, the worker attended an IME with Dr Varghese;[9]
- on 25 November 2022, Dr Varghese provided to the State's solicitors his report, also dated 25 November 2022, in respect of his examination of the worker which reported on the causal development of the worker's injury the subject of the State's appeal ('Dr Varghese's report');[10]
- on 2 December 2022, the State disclosed Dr Varghese's report to the Regulator;[11]
- in February 2023, the State obtained updated advice from Counsel, in light of Dr Varghese's report, about the State's prospects in respect of its appeal following which the State's solicitors sought instructions from the State regarding the future progress of the appeal;[12]
- by email dated 1 February 2023, the worker's solicitors advised the State's solicitors, amongst other matters directly relevant to the State's appeal, that they were instructed, pursuant to s 549(3)(a) of the act to '… add' the worker as a party to the State's appeal;[13]
- on 13 April 2023, the State's solicitors emailed the Regulator, for their consideration and consent, a draft directions order for the future conduct of the State's appeal, namely, the Regulator consenting to the parties participating in a further conference before the Commission in light of:
- the worker's expressed intention to join the appeal; and
- Dr Varghese's report;[14]
- on 18 April 2023, the Regulator advised the State's solicitors that the Commission had informed the Regulator that the State's appeal had '… been lapsed by the registry several weeks earlier, on 23 February 2023.'; [15]
- on 20 April 2023, the State's solicitors, upon their contact with the Industrial Registry, were advised that an application pursuant to r 230 of the Rules was required for the State's appeal to proceed;[16] and
- on 26 May 2023, the State filed its present application pursuant to r 230 of the Rules.
- [10]On 20 June 2023, an affidavit of Ms Ruth Jamieson, an Appeals Officer employed by the Regulator, who has the conduct of the State's appeal on behalf of the Regulator, was filed in respect of the State's application ('Ms Jamieson's affidavit').
- [11]On 30 June 2023, the State's solicitors emailed the Regulator seeking disclosure of information relevant to the matters deposed to in Ms Jamieson's affidavit, namely:
- whether the Regulator had advised the worker of the view of the Industrial Registry that the State's appeal had lapsed; and
- if the Regulator had so advised the worker, the date that advice was provided and a copy of the Regulator's correspondence to the worker about that advice.[17]
- [12]By email dated 3 July 2023 Ms Jamieson:
- advised the State's solicitors that, on 17 March 2023, she advised the worker of the view of the Industrial Registry that the State's appeal had lapsed; and
- provided the State's solicitors with two (relevantly redacted) email chains in respect of which such advice was provided to the worker.[18]
Rule 230 of the Industrial Relations (Tribunals) Rules 2011
- [13]Rule 230 of the Rules provides:
230 Lapse of proceeding after at least 1 year’s delay
- This rule applies if–
- an application starting a proceeding has been filed; and
- no action has been taken by the applicant in relation to the application for at least 1 year since the last action was taken by the applicant in the application.
- A party may only take further action on the application with an order of the court, commission or registrar.
- An application for an order under subrule (2) must be in the approved form and state the following–
- the steps taken in the proceeding;
- an explanation for the circumstances of the delay;
- the steps (including a timetable) proposed to be taken to progress the proceeding;
- any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out;
- the merits of the proceeding;
- why the court, commission or registrar should make the order despite the delay.
- [14]A number of matters about the application of r 230 are not controversial and were not in dispute between the parties.
- [15]First, assuming that the elements in r 230(1) of the Rules are made out, it is for a party who wishes to take further action on the application which started a proceeding which has been filed, to show there is good reason for excepting the proceedings from the general prohibition imposed by r 230(1) of the Rules.[19]
- [16]Secondly, the type of action contemplated in r 230(1)(b) and r 230(2) is action taken in moving the matter towards judgment or the relief sought, or an act or activity that has the characteristic of carrying the cause or action forward.[20]
- [17]Thirdly, in determining an application under r 230(2) of the Rules, the factors to which regard should be had are those referred to in r 230(3).[21]
- [18]The State framed its submissions by reference to the six matters referred to in r 230(3) of the Rules, including, in respect of the matter referred to in r 230(3)(a) of the Rules, by submitting that it had taken relevant action or steps in its appeal such that its appeal has not lapsed.
- [19]The Regulator responded to the submissions made by the State. However, it is unnecessary for me to consider all of the submissions made because, for the reasons I give below, my view is that r 230(1) of the Rules was not enlivened on the undisputed facts of the present case, such that the State's appeal did not lapse pursuant to r 230(1) of the Rules.
Did the State's appeal lapse because of the application of r 230(1) of the Rules?
- [20]In its principal submissions, the State submitted that since the time it filed its appeal, it has actively and continually taken action to progress its appeal, including since the conference.[22]
- [21]The State then submitted that:
- the lapsing threshold criteria under r 230(1)(b) of the Rules is not engaged in the present circumstances because it has taken regular action and several steps to advance its appeal since the conference; and
- the Commission ought to make an order under r 230(2) of the Rules permitting it to take further action in respect of its appeal on the terms of the draft Directions Order contained in its application.[23]
- [22]The action the State submits it has taken since the conference consists of:
- the significant amount of time it sought seeking independent medical evidence regarding the causal development of the worker's '… alleged compensable injury' under the Act and in coordination with the Regulator and the worker;
- its disclosure of that medical evidence to the Regulator; and
- its subsequent communication with the Regulator and the worker about the future conduct of its appeal, including about proposed future directions to be sought from the Commission.[24]
- [23]The State further submitted that:
- the receipt of the independent medical evidence regarding the causal development of the worker's alleged injury was considered by it to be a necessary step for the progress of, and carrying forward of, its appeal because it was necessary to inform it:
- as to whether the worker did have an injury within the meaning of s 32(1) of the Act; and
- the future conduct of the appeal;[25]
- its conduct in obtaining the independent medical evidence, disclosing the medical evidence to the Regulator and communicating with the Regulator about proposed future directions for its appeal, constituted action or steps taken to progress its appeal towards hearing or carrying it forward within the meaning of r 230(1)(b) and r 230(3)(a) of the Rules; and
- as such action was taken within 12 months of the conference, its conduct could not offend r 230 of the Rules, such that r 230(1) of the Rules has not been engaged and, on that basis alone, the Commission ought to make an order under r 230(2) of the Rules permitting it to take further action respect of its appeal.[26]
- [24]The Regulator relevantly submitted that:
- the action taken by one party in the obtaining of further evidence is not a step that progresses a matter towards hearing, and that the choice made by a party to obtain further evidence to support its case – as was undertaken by the State in the present case in respect of the obtaining of Dr Varghese's report – is a forensic decision by a party and is not a step taken to move the matter towards hearing;[27] and
- the State's reliance on the decision in Savage v Q-COMP[28] in support of its contention that the decision by a party to seek an updated medical report, and the disclosure of such a report, was the 'taking of a step' within the meaning of r 230 of the Rules,[29] is misplaced because the decision in that case left open the question of whether informal steps taken in a proceeding might constitute 'action' for the purposes of r 230.[30]
- [25]In its written submissions in reply, the State submitted that there was no requirement, either in the terms of r 230 of the Rules, or in the equivalent provisions under civil procedure rules, that the conduct (or, relevantly to the present case, the 'action' referred to in r 230(1)(b) and r 230(2) of the Rules), is conduct confined to that done in the Commission or the Industrial Registry.[31]
- [26]In support of this submission, the State referred to the decision of the Full Court of the Supreme Court of Queensland in CitiCorp Australia Limited v Metropolitan Public Abattoir Board ('CitiCorp').[32] That case concerned O 90, r 9(2) of the (former) Rules of the Supreme Court (Qld) ('RSC') which provided that when three years had elapsed from the time when the last proceeding was taken in a cause, no fresh proceeding was to be taken without the order of a Court or Judge.[33] The issue was whether the plaintiff's process of inspecting documents, discovered by one of the defendants, constituted a 'proceeding' in the cause for the purposes of the relevant rule.[34] It was held that the plaintiff's process of inspecting such documents was not a proceeding for the purposes of the rule, such that the plaintiff could not issue a summons without first obtaining the leave of the Court or a Judge.[35]
- [27]In delivering the judgment for the Full Court, McPherson SPJ relevantly stated:
Notwithstanding the careful analysis of the authorities undertaken by his Honour, I find myself in respectful disagreement with his conclusion in this matter. It may I think be accepted that to constitute a ‘‘proceeding’’ the act or activity must have the characteristic of carrying the cause or action forward. It may, as Stable J. described it in Kaats v. Caelers [1966] Qd.R. 482, 489, be ‘‘some step taken toward the judgment or relief sought in the action’’; or ‘‘taken with a view to continuing the litigation between the parties to it’’: Spincer v. Watts (1889) 23 Q.B.D. 350, 353, per Lindley L.J. The word ‘‘is one that suggests something in the nature of a formal step in the prosecution of an action …’’: see Mundy v. Butterly Co. (1932) 102 L.J.Ch. 23, 26. It need not be a step taken or act done in a court or its registry. Holding a compulsory conference in conformity with O. 39 r. 30A(4)(e) of the Rules constitutes a proceeding within O. 90 r. 9: see Russell v. Mihaljevic & Anor (Full Court, 24 June 1982, unreported); likewise, the production to the other party of a signed certificate of readiness pursuant to O. 39 r. 30A(5) has been held to be a proceeding: ibid., per Kelly J.; aliter if the certificate has not been signed by either party: see Wright v. Ansett Transport Industries Limited [1990] 1 Qd.R. 297, 299. All these, and many other authorities besides, were referred to by his Honour below or in the course of submissions before us.
I am, however, unable to accept that acts done in the recesses of a solicitor’s office partake of the character of a proceeding simply because they may, from the standpoint of the party for whom that solicitor is acting, be supposed to carry the action forward. That is particularly so where the act in question has, so far as the other party or the court is aware, no readily discernible impact on the progress of the action. Time and effort expended on preparing an affidavit of documents achieves nothing if the affidavit is never delivered. Taking instructions from the client or proofs from witnesses are necessary activities if the action is to be brought to trial. None of them can however fairly be described as a ‘‘proceeding’’ in the cause as that expression is used in O. 90 r. 9.
…
The conclusion I draw from all this is that production of documents for inspection is, but inspection itself ordinarily is not, a proceeding for the purpose of O. 90 r. 9. Of course, the two processes often taken place simultaneously over a period of time; but it remains the act of production not inspection that qualifies as the ‘‘proceeding’’ in terms of the Rule. That is, in my respectful opinion, the explanation of the decision of Dowsett J. in Wright v. Ansett Transport Industries Limited [1990] 1 Qd.R. 297, where it is noteworthy that, in posing the ‘‘broad question’’ to be resolved, his Honour asked himself whether the provision of copies as it occurred was part of the discovery process in the action as contemplated by O. 35 r. 14. Providing copies of discovered documents is simply a further and convenient modern refinement of the discovery process; but it is because it is one that relates to the aspect of production for inspection that it may properly be considered a ‘‘proceeding’’.[36]
- [28]The State, in reply, also submitted that:
- the circumstances of the present case are different from those in CitiCorp, because it has been engaged in the process of facilitating the report from Dr Varghese, with the full and frank cooperation of the Regulator and the worker, and it disclosed Dr Varghese's report to the Regulator;[37] and
- its action in disclosing Dr Varghese's report to the Regulator was undertaken in compliance with its obligations of disclosure as required by s 553 of the Act such that, consistently with the view taken of r 389 of the Uniform Civil Procedure Rules 1999, disclosure amounts to a step in the proceeding.[38]
- [29]Rule 389 of the Uniform Civil Procedure Rules 1999 ('UCPR') provides:
389 Continuation of proceeding after delay
- If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.
- If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
- For this rule, an application in which no order has been made is not taken to be a step.
- [30]In my view, the State's submissions are correct in that, at the very least, the State's action in disclosing Dr Varghese's report to the Regulator on 2 December 2022 was action taken by the State in relation to its appeal within the meaning of r 230(1)(b) of the Rules.
- [31]The consequence of this is that, within at least one year after the conference on 2 February 2022, the State did take action in relation to its appeal, such that its appeal did not lapse.
- [32]There are four reasons for my view.
- [33]First, in Porzuczek v Toowoomba District Health Services,[39] Moynihan J held that the word 'step' in r 389 of the UCPR is to be interpreted in the same way as 'proceedings' in O 90, r 9 of the RSC.
- [34]Therefore, consistently with the approach taken by the Commission[40] and the Industrial Court of Queensland[41] in other cases concerning the equivalent provisions that have governed them, the principles developed by the courts about the construction of the equivalent rules in the RSC and the UCPR are of assistance in construing r 230 of the Rules.
- [35]An action, therefore, within the meaning of r 230(1)(b) of the Rules, need not be a step taken or act done in the Commission or the Industrial Registry.[42] Further, it does not need to be something required by the Rules. In Artahs Pty Ltd v Gall Standfield & Smith (A Firm)[43] Margaret McMurdo P relevantly stated in respect of r 389 of the UCPR:
[3] The expression "step" is not defined in the UCPR. Its ordinary meaning in this context is: "a move or proceeding, as towards some end or in the general course of action: the first step towards peace". Whether a step has been taken in a particular proceeding will turn on the pertinent circumstances in that case. It is clear from the authorities discussed by Peter Lyons J that, to be a step under r 389 it must, consistent with that word's ordinary meaning, progress the action towards a conclusion. I agree with Peter Lyons J that it is not necessary the step be something required by the UCPR. For example, the filing and service of a reply or a subsequent pleading would usually amount to a step in the action.[44]
- [36]Secondly, s 553 of the Act provides:
553 Application of Uniform Civil Procedure Rules 1999 and Industrial Relations (Tribunals) Rules 2011
- The Uniform Civil Procedure Rules 1999, chapter 7, part 2 and chapter 9, part 4 and the Industrial Relations (Tribunals) Rules 2011 apply to an appeal under this division with necessary changes.
- However, if there is an inconsistency between a provision of the rules mentioned in subsection (1) and a provision of this division, the provision of this division prevails to the extent of the inconsistency.
- [37]As submitted by the State, ch 7, pt 2 of the UCPR deals with disclosure generally. Rule 211(2) of the UCPR provides that the duty of disclosure continues until the proceeding is decided. Further, r 46 of the Rules provides:
46 Duty of disclosure
- If a directions order requiring disclosure of documents is made, a party must disclose any document that–
- is directly relevant to the proceeding or a matter in issue in the proceeding; and
- is in, or comes into, the possession of the party.
- A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
- Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.
- [38]On the evidence before me, it is unclear whether the State, in disclosing Dr Varghese's report to the Regulator, was acting under its obligation pursuant to the UCPR or pursuant to an earlier Directions Order issued by the Commission that required disclosure. In any event, there was clearly an obligation on the State to disclose Dr Varghese's report to the Regulator. The State did so on 2 December 2022.
- [39]Thirdly, there seems to be no dispute, and in my view it is clear and consistent with authority, that the holding of the conference by the Commission on 2 February 2022, pursuant to s 552A of the Act, was action within the meaning of r 230(1)(b) of the Rules.[45]
- [40]Fourthly, having regard to the circumstances of the present case, the disclosure of Dr Varghese's report by the State to the Regulator on 2 December 2022 was, in my view, action taken by the State in relation to its appeal within the meaning of r 230(1)(b) of the Rules. This is consistent with authority.[46] Further, the disclosure of Dr Varghese's report had the characteristic of carrying the State's appeal forward. This is because the material issue between the parties is whether the worker had suffered an injury within the meaning of s 32 of the Act. Dr Varghese's report deals with that issue.
- [41]Further, that disclosure was action taken within one year of the conference. In those circumstances, r 230(1) of the Rules was not enlivened because the element contained in r 230(1)(b) was not met. For these reasons, the State's appeal had not lapsed as at 23 February 2023, being the date the Industrial Registry determined the appeal had lapsed. There is no discretion that the Commission can exercise pursuant to r 230(2) of the Rules.
- [42]For these reasons, it is unnecessary for me to consider if the other actions taken by the State, referred to in its submissions, were 'action' within the meaning of r 230(1)(b) of the Rules.
What should the Commission do in these circumstances?
- [43]Section s 553 of the Industrial Relations Act 2016 ('the IR Act') provides:
553 General application of provisions
The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this Act or another Act, unless the contrary intention appears.
- [44]Chapter 11, pt 2, div 3 of the IR Act sets out the functions, jurisdiction and general powers of the Commission. Section 451 of the Act is contained in that division and relevantly provides:
451 General powers
- The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
- Without limiting subsection (1), the commission in proceedings may-
- give directions about the hearing of a matter; or
- make a decision it considers appropriate, irrespective of the relief sought by a party; or
- make an order it considers appropriate.
- [45]I can see no provision in ch 13, pt 3, div 1 of the Act, which discloses a contrary intention such that the general powers conferred on the Commission, by virtue of s 451 of the IR Act, would not be available to it in the circumstances of the present case.
- [46]As a consequence, pursuant to s 451(2)(b) of the IR Act, I decide that the State's appeal did not lapse pursuant to r 230(1) of the Rules as of 23 February 2023.
- [47]Part of the relief sought by the State in its application made pursuant to r 230 of the Rules was that its appeal be listed for a further conference before the Commission. The conference on 2 February 2022 was conducted by Industrial Commissioner Pidgeon. In these circumstances, my view is that the most appropriate action to take, given that I have found that the State's appeal has not lapsed, and given the disclosure of Dr Varghese's report, is to direct that the State's appeal be the subject of a further conference before Industrial Commissioner Pidgeon on a date to be fixed. I clearly have the power to make such a directions order pursuant to r 41(1) of the Rules.
Other matters
- [48]Two other matters should be briefly mentioned.
- [49]First, one of the orders sought by the State in its application was that the worker be joined as a party to its appeal. I will not make such an order. There is no evidence before me that the worker has informed the Commission (as opposed to the State's solicitors) that they wish to exercise their right, pursuant to s 549(3)(a) of the Act, to be a party to the appeal.
- [50]Secondly, Ms Jamieson's affidavit exhibited correspondence from the worker's Psychologist and General Practitioner about the effect upon the worker by the State's appeal proceeding towards determination. The purpose of that evidence was, having regard to r 230(3)(d) of the Rule, to address the issue of the prejudice suffered or likely to be suffered by the Regulator and the worker if the State's appeal was not struck out. Given that I have found that the State's appeal did not lapse pursuant to r 230(1) of the Rules, that material is not relevant to the decision I have made pursuant to s 451(2)(b) of the IR Act.
Conclusion
- [51]For the reasons given, I will, pursuant to r 41 of the Rules, order that the State's appeal be the subject of a further conference before Industrial Commissioner Pidgeon on a date to be fixed.
Order
- [52]I make the following Order:
Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011, the parties to the Applicant's appeal in Matter WC/2021/36 are to attend a further conference before Industrial Commissioner Pidgeon on a date to be fixed.
Footnotes
[1]The affidavit of Ms Catriona McPherson affirmed on 26 May 2023 ('Ms McPherson's affidavit'), para. 3.
[2] Ms McPherson's affidavit, para. 19, and exhibit 'CM-9' to Ms McPherson's affidavit.
[3] Ms McPherson's affidavit, para. 4.
[4] Ms McPherson's affidavit, para. 4.
[5] Ms McPherson's affidavit, para. 6.
[6] Ms McPherson's affidavit, para. 7.
[7] Ms McPherson's affidavit, para. 9.
[8] Ms McPherson's affidavit, para. 11.
[9] Ms McPherson's affidavit, para. 13.
[10] Ms McPherson's affidavit, para. 14.
[11] Ms McPherson's affidavit, para. 15.
[12] Ms McPherson's affidavit, paras. 16-17.
[13] The affidavit of Catriona McPherson affirmed on 4 July 2023 ('Ms McPherson's further affidavit'), para. 5 and exhibit 'CM-1' to Ms McPherson's further affidavit. Despite the evidence of the worker's solicitors informing the State's solicitors of the worker's intention to be a party to the State's appeal, there is no evidence before me that the worker's solicitors have directly notified the Commission of such an intention, or that any directions have been made by the Commission which names the worker as a party to the State's appeal.
[14] Ms McPherson's affidavit, para. 18.
[15] Ms McPherson's affidavit, para. 19 and exhibit 'CM-9' to Ms McPherson's affidavit.
[16] Ms McPherson's affidavit, para. 19.
[17] Ms McPherson's further affidavit, para. 6.
[18] Ms McPherson's further affidavit, para. 7 and exhibit 'CM-3' to Ms McPherson's further affidavit.
[19] William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6; (1963) 109 CLR 490, 496 (McTiernan, Kitto, Taylor and Owen JJ) and Sharples v Workers' Compensation Regulator [2020] ICQ 020 ('Sharples'), [21] (Deputy President Merrell.)
[20] Sharples (n 19), [29].
[21] Barnes v Q-Comp & Hatch Pty Ltd Barnes [2017] QIRC 025 ('Barnes'), [30] (Deputy President O'Connor) and Sharples (n 19), [21].
[22] The written submissions of the State of Queensland (Queensland Health) filed on 26 May 2023 ('the State's submissions'), para. 8.
[23] The State's submissions, para. 9.
[24] The State's submissions, para. 15, citing Savage v Q-COMP [2013] QIRC 22 ('Savage').
[25] The State's submissions, para. 16.
[26] The State's submissions, paras. 17-18.
[27] The written submissions of the Workers' Compensation Regulator filed on 20 June 2023 ('the Regulator's submissions'), paras. 7-9.
[28] Savage (n 24).
[29] The State's submissions, para. 12.
[30] The Regulator's submissions, para. 10-11, citing Savage (n 24), [10].
[31] The written submissions in reply of the State of Queensland (Queensland Health) filed on 4 July 2023 ('the State's reply submissions'), para. 7.
[32] [1991] QSCFC 59; [1992] 1 Qd R 592 ('CitiCorp').
[33] Ibid 593 (McPherson SPJ, Ryan J and Dowsett J at 595 agreeing).
[34] CitiCorp (n 32) 593.
[35] Ibid 595.
[36] Ibid 593-595.
[37] The State's reply submissions, para. 15.
[38] The State's reply submissions, paras. 22-27, citing Porzuczek v Toowoomba District Health Services [2007] QSC 177 ('Porzuczek') [9]-[16] (Moynihan J) and Sparkman's Electrical Pty Ltd v Harberson & Anor [2017] QSC 156 ('Sparkman's'), [9] (McMeekin J).
[39] Porzuczek (n 38), [10].
[40] Vibe Allerup and Heka Pty Ltd t/as Brisbane Dental Group [1999] QIRC 20; (1999) 160 QGIG 112 ('Vibe Allerup') , 112 (Chief Industrial Commissioner Hall).
[41] Sharples (n 19), [29].
[42] CitiCorp (n 32), 594.
[43] [2012] QCA 272.
[44] Citations omitted.
[45] CitiCorp (n 32), 594 and Barnes (n 21), [32].
[46] CitiCorp (n 32), 594-595, Vibe Allerup (n 40) 112, Porzuczek (n 38), [16], Sparkman's (n 38), [9] and Black & Black v De Waard and De Waard & Anor [2021] QDC 138, [18] (Horneman-Wren SC DCJ).