CITATION: | State of Queensland (Office of the Governor) v Workers' Compensation Regulator and Anor [2025] QIRC 210 |
PARTIES: | State of Queensland (Office of the Governor) (Appellant) v Workers' Compensation Regulator (First Respondent) and Giles, Angela Yvette (Second Respondent) |
CASE NO: | WC/2023/105 |
PROCEEDING: | Appeal against review decision of the Workers' Compensation Regulator – application in existing proceedings to reopen appeal hearing after decision reserved |
DELIVERED ON: | 11 August 2025 |
HEARING DATE: | 25 July 2025 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDERS: | The orders contained in paragraph [68] of these reasons for decision |
CATCHWORDS: | CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – OTHER MATTERS – APPLICATION TO REOPEN TRIAL AFTER JUDGMENT RESERVED – the Second Respondent was employed by the Appellant, through the Office of the Governor, in the position of Executive Support Officer – the Appellant appealed against the Second Respondent's successful review application decision by the First Respondent in respect of a workers' compensation application – the triable issues included whether the Second Respondent suffered a personal injury and, if so, whether her employment was a significant contributing factor to such a personal injury – Appellant's appeal heard and final submissions received – appeal decision reserved – subsequently, the Second Respondent made an application in existing proceedings to reopen the appeal hearing to lead new expert evidence – the Second Respondent's application to reopen the appeal hearing was opposed by the Appellant – consideration of the applicable principles to reopen a trial when trial completed and judgment reserved – whether the interests of justice require the granting of the Second Respondent's application to reopen the appeal hearing – Second Respondent's application to reopen the appeal hearing granted |
LEGISLATION: | Industrial Relations Act 2016, s 429, s 447, s 451, s 484, s 485 and s 553 Workers' Compensation and Rehabilitation Act 2003, s 32, s 548, s 548A, s 549, s 556, s 557 and s 558 |
CASES: | Allison Greenaway as the Executor of the Estate of the Late Brian Greenaway v Workers' Compensation Regulator [2025] QIRC 142 Belal Yousif v Workers' Compensation Regulator [2017] ICQ 004 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd (No 2) [2024] FCA 1324 DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 EB v CT (No. 2) [2008] QSC 306 Fowler v Workers' Compensation Regulator [2019] QIRC 149 Frigger v Trenfield (No 7) [2020] FCA 1740 Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Ngan Thanh Phan t/as Right Choices Construction Queensland v Workers' Compensation Regulator & Anor [2022] QIRC 251 Re: Applications to vary the Building, Engineering and Maintenance Services Employees (Queensland Government) Award - State 2016 [2024] QIRC 064 Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1 State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447 Turay v Workers' Compensation Regulator [2023] ICQ 13 Wang v Workers' Compensation Regulator (No. 2) [2023] QIRC 163 |
APPEARANCES: | Ms M. Brooks instructed by Mr X. Lake of Crown Law for the Appellant Mr M. Cutting of the First Respondent The Second Respondent appeared on her own behalf |
Reasons for Decision
Introduction
The power of the Commission to reopen an appeal hearing under ch 13, pt 3, div 1 of the Workers' Compensation and Rehabilitation Act 2003 where a decision has been reserved
484 Power to reopen proceedings
485 Who may apply to reopen proceedings
An application for reopening of proceedings may be made by–
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.
451 General powers
[44] However, by virtue of s 451(1) of the Act, the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. This is a common way to describe such a power as conferred on a statutory body. A description similar to s 451(1) of the Act has been considered by the High Court. In Northern Land Council v Quall, Kiefel CJ and Gageler and Keane JJ relevantly stated:
[33] The power conferred on a representative body by s 203BK(1) in the familiar terms of a power "to do all things necessary or convenient to be done for or in connection with the performance of its functions", though "broad", is "strictly ancillary", authorising "the provision of subsidiary means of carrying into effect what is enacted in the statute itself" and encompassing "what is incidental to the execution of its specific provisions". The power does "not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred".
[45] Later, their Honours stated:
A "necessary or convenient" power of that nature has already been emphasised to be ancillary, subsidiary or incidental.
A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred". It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.[17]
The principles that guide the exercise of such discretion
45 The principles governing the exercise of a court's discretion to permit a party to re-open its case were not in contention before the judge or before this Court. They are briefly summarised below.
46 The overriding principle is 'whether, taken as a whole, the justice of the case favours the grant of leave to re-open.' This principle was stated as follows by Kirby J in Goldsmith v Sandilands upon which the applicant relied in the present case:
The guiding principle for the grant or refusal of leave to call evidence in response to the evidence of another party, where this is sought by a party, is, ultimately, what the justice of the case – including procedural fairness – requires. That principle should not become unduly entangled in precedents or procedural rules.
Whilst efficiency and economy in the conduct of civil trials are important requirements of the contemporary trial process, those objectives are valid only as they contribute to just outcomes. Once the trial process is under way, rigidity should be avoided, certainly at a time before the evidence has been closed and before the decision foreshadowed or announced. To exclude relevant evidence during a trial, in response to evidence tendered by another party in its case, simply because it could, or should, have been adduced earlier may, in particular circumstances, deny the party tendering such evidence the fair opportunity to present its case. It may render that party unjustly hostage to the defective perception, imagination and industry of its legal representatives. This is why a large discretion is reserved to the trial judge in civil trials to admit or reject evidence in rebuttal or reply. In an appeal, the exercise of the judge's discretion in such matters is subject to the usual restraints upon appellate disturbance of discretionary decisions.
47 There are four recognised categories of case in which a court may grant leave to re-open a party's case: where fresh evidence, unavailable or not reasonably discoverable previously, becomes known and available; where there has been inadvertent error; where there has been a mistaken apprehension of the facts; and where there has been a mistaken apprehension of the law.[19] These categories are not closed.
Relevant principles
[2] The guiding principle in deciding whether to grant leave to re-open is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finborough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality in litigation.
[3] In Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. As to the former situation, the court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.
[4] In Reid v Brett the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered, were said to be as follows:
[5] Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.
Ms Giles' submissions
The OOG's submissions
17 Ms Giles submits the evidence in the May 2025 report is 'new information' because Dr Chalk makes reference to her GP's diagnosis of burnout. There was never a question Dr Chalk was making a diagnosis, after either assessment, of an injury that was alleged to arise out of the same circumstances her GP Dr Shanti Caulley also assessed as relevant to her diagnosis of burnout. Indeed, the Claim Summaries referred to by Dr Chalk in both reports refer to the diagnosis of burnout. The submission by Ms Giles that the May 2025 report provides 'new information' with respect [sic] Dr Chalk's diagnosis should not be accepted,
Nothing has changed except the Appellant has now had to lay its evidentiary cards on the table at a hearing, and make its final submissions, and Ms Giles now seeks to adduce additional evidence in circumstances where there is clear prejudice to the Appellant because Ms Giles is now, in effect, running a different case.[43]
Should Ms Giles be allowed to reopen her case?
SUMMARY AND ASSESSMENT: Ms Giles has developed an adjustment disorder with anxiety and depressed mood. She has had some but limited treatment. She is not on any psychotropic medication, and I do not think she requires any. Her incapacity because of the work-related psychological injury has ceased. She is working in an alternative role. There did not appear to be other factors that are germane to the development of this illness, although she is clearly stressed by the fact that the accepted claim is now to be appealed.[49]
Conclusion
Order
Pursuant to s 451(1) of the Industrial Relations Act 2016, the application in existing proceedings, filed by the Second Respondent on 10 June 2025 in Matter No. WC/2023/105, is granted.
[1] T 1-5 (25 July 2025), ll 15-16.
[2] T 1-6 (25 July 2025), ll 43-44.
[3] The written submissions of the State of Queensland (Office of the Governor) filed on 22 July 2025 ('the OOG's submissions'), paras. 8-9.
[4] [2022] QIRC 251 ('Phan').
[5] Ibid [35]-[36].
[6] Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757, [74]-[76] (French J) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd (No 2) [2024] FCA 1324, [49]-[50] (Katzmann J).
[7] In my view, having regard to the statutory text of s 484 and s 485 of the Industrial Relations Act 2016, a question also arises as to whether the power conferred on the Commission by s 484 of Industrial Relations Act 2016 applies to a circumstance where a hearing of the matter has been conducted and final submissions made, but where a decision has been reserved.
[8] [2017] ICQ 004 ('Belal Yousif').
[9] Section 451(2) of the Industrial Relations Act 2016 provides:
[10] Belal Yousif (n 8), [11]. See also generally Turay v Workers' Compensation Regulator [2023] ICQ 13, [77] (Davis J, President) which is authority for the proposition that certain provisions of the Industrial Relations Act 2016 have application in appeals to the Industrial Court of Queensland pursuant to ch 13, pt 3 div 1A of the Workers' Compensation and Rehabilitation Act 2003. Further, in respect of the application of s 486 of the Industrial Relations Act 2016 to appeals to the Commission pursuant to ch 13, pt 3, div 1 of the Workers' Compensation and Rehabilitation Act 2003, see Allison Greenaway as the Executor of the Estate of the Late Brian Greenaway v Workers' Compensation Regulator [2025] QIRC 142, [23]-[34] (Industrial Commissioner O'Neill).
[11] [2024] QIRC 064.
[12] See Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1 [26] (Harper and Tate JJA and Beach AJA) and Frigger v Trenfield (No 7) [2020] FCA 1740, [20] and [22] (Jackson J).
[13] As occurred in Fowler v Workers' Compensation Regulator [2019] QIRC 149, [40]-[41] (Deputy President Merrell) and in Wang v Workers' Compensation Regulator (No. 2) [2023] QIRC 163, [13]-[14] (Deputy President Merrell).
[14] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461 ('Church'), [29]-[30] (Martin J, President).
[15] Industrial Relations Act 2016, s 429.
[16] [2000] HCA 17; (2000) 201 CLR 226.
[17] Ibid [25]. Citations omitted.
[18] [2017] VSCA 355.
[19] Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1, 7 [25], citing Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, [24].
[20] [2008] QSC 306.
[21] The written submissions of Ms Angela Giles filed on 2 July 2025 ('Ms Giles' submissions'), paras. 3-4.
[22] The report of Dr John Chalk, Psychiatrist, dated 4 December 2023 ('Dr Chalk's 2023 report'), page 7 of 8.
[23] T 1-7 (25 July 2025), ll 20-37.
[24] T 1-6 (25 July 2025), ll 8-11.
[25] The affidavit of Mr Xavier Lake filed on 22 July 2025, exhibit 'XL-01', page 7.
[26] Emphasis in the original.
[27] Ms Giles' submissions, paras. 13-16.
[28] T 1-6 (25 July 2025) ll 11-19.
[29] T 1-6 (25 July 2025) ll 21-23.
[30] T 1-8 (25 July 2025) l 9.
[31] T 1-8 (25 July 2025) ll 16-17.
[32] T 1-8 (25 July 2025) ll 23-37.
[33] T 1-12, (25 July 2025) ll 22-32.
[34] Ms Giles' submissions, paras. 17-19.
[35] The OOG's submissions, para. 11.
[36] The OOG's submissions, para. 12.
[37] The OOG's submissions, para. 12.
[38] The OOG's submissions, para. 13.
[39] The OOG's submissions, para. 14.
[40] The OOG's submissions, paras. 15-16.
[41] The OOG's submissions, para. 20.
[42] The OOG's submissions, para. 21.
[43] The OOG's submissions, para. 21.
[44] The OOG's submissions, para. 22.
[45] T 1-13 (25 July 2025) ll 28-32.
[46] T 1-13 (25 July 2025) ll 34-42.
[47] T 1-14 (25 July 2025) ll 24-26.
[48] Dr Chalk's 2023 report, pages 2 and 3 of 8.
[49] Dr Chalk's 2023 report, page 7 of 8. My emphasis.
[50] Church (n 14), [29]-[30].
[51] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).
