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National College of Australia v Workers' Compensation Regulator[2025] QIRC 95

National College of Australia v Workers' Compensation Regulator[2025] QIRC 95

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

National College of Australia v Workers' Compensation Regulator [2025] QIRC 095 

PARTIES:

National College of Australia

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

WC/2025/38

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

28 March 2025

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

Leave is granted for the Respondent to be legally represented in matter WC/2025/38 pursuant to s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

CATCHWORDS:

WORKERS' COMPENSATION – MISCELLANEOUS MATTERS – where the respondent filed an interlocutory application – where the respondent has applied for leave to be legally represented under s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where the appellant opposes the application for legal representation – whether the Commission should grant leave after consideration of the relevant factors – whether the matter involves complexity – where leave is granted for the respondent to be legally represented

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 548, s 548A, s 550, s 552, s 552A,   s 552B

CASES:

Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 27

Mario v Workers' Compensation Regulator [2021] QIRC 406

State of Queensland (Office of the Governor) v Workers' Compensation Regulator & Anor [2024] QIRC 205

Tuesley v Workers’ Compensation Regulator (2021) 307 IR 395

Turay v Workers’ Compensation Regulator [2023] ICQ 13

Wanninayake v State of Queensland (Department of Natural Resources and Mines [2014] QIRC 79

Workers’ Compensation Regulator v Glass (2020) 4 QR 693

Reasons for Decision

Introduction

  1. [1]
    The Appellant, National College of Australia, filed a WCR Notice of appeal on 25 February 2025, seeking, inter alia, for the decision of the Respondent, the Workers' Compensation Regulator ('the Regulator'), dated 19 February 2025 be set aside and a new decision be made by the Commission. 
  1. [2]
    The Regulator has sought leave, pursuant to s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act') to be legally represented in these proceedings. 
  1. [3]
    The Appellant objects to leave being granted for the Regulator to be legally represented.

Relevant Background

  1. [4]
    The substantive proceeding is an appeal pursuant to s 550 of the WCR Act by the Appellant against a decision made by the Regulator. The Regulator's decision on 19 February 2025 set aside the decision of WorkCover Queensland and made a new decision to accept the employee's, Ms Rachel Yates, application for compensation.
  1. [5]
    On 26 February 2025, the Regulator sent email correspondence to the Industrial Registry asking for leave to be represented. The Appellant opposed this request.
  1. [6]
    Following the telephone mention on 28 February 2025, this Commission issued a Directions Order to the parties requesting that they each file in the Industrial Registry and serve on each other, written submissions in support of their position with respect to the application for legal representation filed by the Regulator. 
  1. [7]
    On 4 March 2025, the Regulator filed an application in existing proceedings seeking an order for leave to be granted to be legally represented.
  1. [8]
    The Appellant filed its objection to the application for legal representation first as email correspondence and then in written submissions filed 12 March 2025. After the Commission queried the origin of several of the authorities referred to in the Appellant's submissions, the Appellant sought to withdraw those submissions and filed fresh submissions. The Commission permitted the Appellant to file those fresh submissions. The fresh submissions were filed on 25 March 2025.
  1. [9]
    Accordingly, the question for my determination is whether the Commission should grant the Regulator leave to be legally represented in these proceedings.

Relevant Statutory Provisions with Respect to the Application

  1. [10]
    Section 552B of the WCR Act provides for legal representation at conference or the hearing of an appeal in the following terms:
  1. 552B
    Legal representation at appeal or conference
  1. A party may be represented by a lawyer at a conference called under section 552A or at the hearing of an appeal, but only with—
  1. (a)
    the agreement of the parties; or
  1. (b)
    the appeal body’s leave.
  1. [11]
    An appeal body is defined in the WCR Act as the Industrial Commission.[1]
  1. [12]
    Section 552B falls within Chapter 13, Part 3, Division 1 of the WCR Act.
  1. [13]
    Chapter 13 of the WCR Act deals with reviews and appeals.
  1. [14]
    Relevantly, Part 3, Division 1 of the WCR Act deals with an appeal to an Industrial Magistrate or the Industrial Commission.
  1. [15]
    Section 548 of the WCR Act provides that Part 3, Division 1 applies to, inter alia, a review decision.[2]
  1. [16]
    As noted above, this matter is an appeal to the Commission of a review decision.
  1. [17]
    Chapter 13, Part 3, Division 1, sets out, inter alia, the procedure for the appeal,[3] including by providing notice of the hearing of the appeal and conference.[4]
  1. [18]
    It is within this statutory context that s 552B of the WCR Act provides that a party may be represented by a lawyer in the terms set out in s 552B at a conference or a hearing. Prior decisions of the Commission have also had regard, in varying degrees, to s 530 of the Industrial Relations Act 2016 (Qld) ('IR Act') which provides for legal representation in accordance with its terms under the IR Act.[5]
  1. [19]
    The Regulator contends that it is s 552B of the WCR Act rather than s 530 of the IR Act which is the relevant operative provision with respect to its' application. That submission is accepted. 
  1. [20]
    It is Chapter 13, Part 3, Division 1 of the WCR Act which provides the statutory right of appeal with respect to appeals to the Commission regarding a review decision.[6]
  1. [21]
    Within that context the WCR Act provides for the holding of hearings and conferences and provides that the Commission may exercise its discretion to grant leave for a party to be legally represented.[7]
  1. [22]
    Accordingly, I do not consider that s 530 of the IR Act operates as the source of power to grant leave for legal representation with respect to an appeal that falls within Chapter 13, Part 3, Division 1 of the WCR Act.[8]
  1. [23]
    While the discretion to grant leave in s 552B of the WCR Act is not confined, any judicial discretion must be exercised judicially and for the purpose for which the power was granted.

Should Leave be Granted for the Regulator to be Legally Represented?

  1. [24]
    The Appellant objects to the Regulator's application for leave and outlines its submissions, in the following relevant categories:[9]
  1. The Regulator's Expertise Negates the Need for Legal Representation;
  1. Legal Representation Would Unfairly Disadvantage NCA;
  1. Efficiency Will Not Be Enhanced;
  1. Model Litigant Principles Oppose Granting Leave;
  1. Prejudice to NCA;
  1. Response to Regulator's Submissions;
  1. The Regulators Decision and the Appellant's perspective;
  1. Fundamental Flaws in Ms. Yates' Characterization and the Review Decision;
  1. Statutory Duty to Reassess Under the WCR Act;
  1. Obligations Under the Model Litigant Principles; and
  1. Risks of an Adversarial Approach Not Efficiency Through Legal Representation.
  1. [25]
    The Appellant contends that legal representation would add to the complexity of the appeal. The Appellant compares this matter to Hassan v State of Queensland (Queensland Fire and Emergency Services,[10] and Hegarty v Queensland Ambulance Service.[11] The Appellant argues that while legal representation was granted in these cases, this current proceeding "lacks comparable intricacy".
  1. [26]
    The Appellant argues these proceedings surround "a simple factual dispute".[12] The Appellant contends the facts to consider in this matter only involve "a payroll error, unreported overpayment, Ms. Yates' resignation, her overall conduct, and whether a disciplinary meeting occurred".[13] In addition, the Appellant submits "an adversarial advocate here risks overcomplicating a fact-driven dispute, introducing arguments that obscure rather than clarify the Regulator's decision-making process".
  1. [27]
    The Regulator submits, having regard to the Appellant's grounds of appeal, the following issues arise on the appeal:
  1. Contradictory accounts of awareness;
  1. Failure to engage in discussion;
  1. Deception and breach of contract;
  1. The review decision is based on incorrect findings;
  1. The medical evidence is unreliable and based on a false narrative; and
  1. The finding of "unreasonable management action" is baseless. 
  1. [28]
    Further, the Regulator submits that legal representation would enable the proceedings to be dealt with more effectively because it would assist with narrowing the relevant issues in dispute. As well as, appropriately engaging with s 32 of the WCR Act and any complex questions of fact and law that arise from these proceedings.[14] Additionally, the Regulator may need to "investigate and assess complex factual and medical evidence" that would be assisted by a legal representative.
  1. [29]
    It is apparent from the Appellant's submissions that it has misconceived the nature of the appeal. The nature of the appeal is one of a hearing de novo.
  1. [30]
    In Charters Towers Regional Council v Workers' Compensation Regulator,[15] his Honour O'Connor VP relevantly held:
  1. [17]
    An appeal of this type is, as Hall P observed in State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne, to be treated as a hearing de novo.
  1. [18]
    The nature of a hearing de novo was discussed by Martin J in Church v Simon Blackwood (Workers' Compensation Regulator). In that case, his Honour referred to the reasoning of Dawson J in Harris v Caladine where he said:
  1. 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’: Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.; see also Reg. v. Pilgrim; Campbell, ‘Judicial Review and Appeals as Alternative Remedies’, Monash University Law Review.
  1. 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: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.; Quilter v. Mapleson; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan .” (citations omitted, emphasis added)
  1. [19]
    Dawson J said in Harris v Caladine in relation to a hearing de novo that the "complainant starts again and has to make out his case and call his witnesses". The question for the Commission to determine is what it is that the parties are starting again. What is the "case" to be made out? If, as Lush J put it: "the issue is the same", what is the "issue"?
  1. [31]
    Consequently, the onus to establish that the original claim is not one for acceptance falls to the Appellant and the parties will be required to identify the appropriate factual evidence and legal arguments in order to argue the matter afresh in the Commission.
  1. [32]
    In this regard, I note that the parties have each identified that the issues will include a dispute with respect to the evidence of relevant witnesses which will no doubt require cross-examination of the respective witnesses. As well as, a dispute with respect to the medical evidence and the assumption upon which the medical evidence is based. In addition to these complex factual matters, the parties will also be required to consider and make submissions regarding the operation of s 32 of the WCR Act in the circumstances of the matter.
  1. [33]
    Relevantly, I note such a consideration will require the parties to address the concept of, inter alia, what amounts to 'reasonable management action taken in a reasonable way', which in and of itself is a complex legal concept.
  1. [34]
    On this basis, I do not accept the Appellant's submissions that the appeal is neither factually nor legally complex.
  1. [35]
    The factual and legal complexity of the issues in this appeal are matters which weigh in favour of the exercise of the discretion to grant legal representation to the Regulator.
  1. [36]
    The matters referred to above with respect to adding to the complexity of the hearing are also matters that may potentially impact on the efficient conduct of the proceedings, including with respect to the efficient use of resources and time.
  1. [37]
    The Appellant argues that efficiency will not be enhanced by legal representatives and argues that the "case's simplicity allows the Regulator officers to present it efficiently". The Appellant submits:

The Regulator's submissions demonstrate sufficient legal and procedural expertise to manage this straightforward case without imposing an undue burden on the taxpayer, as evidenced by its routine handling of section 32 assessments under the WCR Act.

  1. [38]
    As noted above, the Appellant's submissions with respect to the simplicity of the matter appear to have not had regard to the nature of the appeal and the matters that must be determined by the Commission.
  1. [39]
    Having regard to the relatively complex issues on appeal, my view is that legal representation will, in a manner that effectively manages resources and time, assist the Commission to determine the appeal by:
  1. making submissions as to the relevance of issues raised by the parties in the context of these proceedings in order to avoid unrelated issues being introduced;
  1. identifying the requirement for and making any submissions with respect to any medical evidence; and
  1. making forensic decisions with respect to the calling of witnesses and conducting appropriate examination and cross-examination of witnesses relevant to these proceedings if the matter goes to hearing.
  1. [40]
    I consider that such assistance would enable these proceedings to be dealt with more efficiently than would be the case if the Regulator was not legally represented.
  1. [41]
    These are matters which weigh in favour of the exercise of discretion.
  1. [42]
    Against the exercise of discretion, the Appellant contends that granting leave would be unfair against the Appellant. The Appellant's arguments in respect to fairness are summarised as follows:
  1. the Appellant is a small institution lacking the resources of the Regulator, including in-house expertise and Crown Law access;
  1. allowing external counsel risks an "unfair procedural advantage"; 
  1. allowing the Regulator to use external representation would grant "the Regulator an enormous advantage in both time and technical capacity that may prove unsurmountable for a self-represented litigant";
  1. formalising proceedings with external counsel is highly likely to increase costs and delays as well as the adversarial nature of a dispute;
  1. the model litigant principles prohibit the exploiting of resource disparities or escalating straightforward matters. Seeking counsel here … risks breaching these principles against the Appellant's limited resources;
  1. allowing the Regulator legal representation while the Appellant remains unrepresented would exacerbate the resource disparity, breaching fairness and the model litigant principles directive that the State should not exploit its superior position;
  1. the Appellant argues that by refusing to grant legal representation, the Regulator and the Appellant will be on "equal footing, avoiding the disparity that could arise from convoluted legal arguments introduced by an adversarial advocate"; and
  1. granting leave for legal representation could enable an advocate to exploit its greater time and resources, crafting a convoluted matrix of legal issues that the Appellant could not reasonably counter.
  1. [43]
    The thrust of the Appellant's submissions is that it perceives it would be unfair to grant legal representation to the Regulator in circumstances where the Appellant has elected not to be legally represented in the proceedings. However, the Appellant's election in this regard should not necessarily be held as a bar against the Regulator being granted leave.
  1. [44]
    In Wanninayake v State of Queensland (Department of Natural Resources and Mines),[16] Neate IC determined that the decision by an Applicant to not engage in legal representation did not mean that the Respondent should be denied the opportunity to engage legal representation and relevantly held:[17]

… competent legal representation of at least one of the parties can assist in ensuring that the proceedings remain focused on the real questions of facts and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced (whether by cross examination and by examination in chief, or the tendering of relevant documents), and that the submissions are confined to matters which the Commission must decide.

  1. [45]
    Rather than causing inefficiency, legal representation may assist in the efficient conduct of the proceeding with the potential of benefiting both of the parties.
  1. [46]
    Further, and despite the Appellant's submissions to the contrary, the Regulator's adherence to the model litigant principles, together with the Commission's conduct of proceedings, will ensure that no disadvantage is suffered by the Appellant if the Regulator is legally represented.
  1. [47]
    I consider that legal representation of at least one of the parties will aid to assist all parties to focus on and consider relevant matters and will further aid in the efficient and fair conduct of these proceedings.
  1. [48]
    Accordingly, the Regulator's application for leave to be legally represented in these proceedings is granted.

Order

  1. [49]
    For the reasons set out above, I make the following order:
  1. Leave is granted for the Respondent to be legally represented in matter WC/2025/38 pursuant to s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

Footnotes

[1] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 548A(1) ('WCR Act').

[2]   WCR Act (n 1) s 548(1)(a).

[3]   Ibid s 550.

[4]   Ibid s 552, s 552A.

[5]  State of Queensland (Office of the Governor) v Workers' Compensation Regulator & Anor [2024] QIRC 205 ('State of Queensland (Office of the Governor) v Workers' Compensation Regulator & Anor'). Cf Mario v Workers' Compensation Regulator [2021] QIRC 406.

[6]   See the line of reasoning in Workers’ Compensation Regulator v Glass (2020) 4 QR 693; Tuesley v Workers’ Compensation Regulator (2021) 307 IR 395; Turay v Workers’ Compensation Regulator [2023] ICQ 13. 

[7]   WCR Act (n 1) s 552B(b).

[8]   See also State of Queensland (Office of the Governor) v Workers' Compensation Regulator & Anor (n 5) [27]–[33].

[9]  National College of Australia, 'Proceeding: Opposition to the Regulator's Application for Leave to be Represented by a Lawyer' Submission in National College of Australia v Workers' Compensation Regulator, WC/2025/38, 25 March 2025 ('The Appellant's Submissions in Response filed 25 March 2025').

[10]  [2024] QIRC 167.

[11]   [2007] QCA 366. 

[12]  The Appellant's Submissions in Response filed 25 March 2025 (n 9) [20].

[13]   Ibid [13].

[14]  Workers' Compensation Regulator (Qld), 'Submissions of the Respondent on the Order by Deputy President Hartigan dated 28 February 2025', Submission in National College of Australia v Workers' Compensation Regulator, WC/2025/38, 4 March 2025, [21].

[15]  [2019] QIRC 27, [17]–[19] (citations omitted).

[16]  [2014] QIRC 79 ('Wanninayake').

[17]  Ibid 6.

Close

Editorial Notes

  • Published Case Name:

    National College of Australia v Workers' Compensation Regulator

  • Shortened Case Name:

    National College of Australia v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 95

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    28 Mar 2025

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
Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 27
2 citations
Jump To
Cite 1 - [2019] QIRC 27
Cite 2 - [2019] QIRC 27
Hassan v State of Queensland (Queensland Fire and Emergency Services) [2024] QIRC 167
1 citation
Jump To
Cite 1 - [2024] QIRC 167
Hegarty v Queensland Ambulance Service [2007] QCA 366
1 citation
Jump To
Cite 1 - [2007] QCA 366
Mario v Workers' Compensation Regulator [2021] QIRC 406
2 citations
Jump To
Cite 1 - [2021] QIRC 406
Cite 2 - [2021] QIRC 406
State of Queensland (Office of the Governor) v Workers' Compensation Regulator [2024] QIRC 205
2 citations
Jump To
Cite 1 - [2024] QIRC 205
Cite 2 - [2024] QIRC 205
Tuesley v Workers' Compensation Regulator (2021) 307 IR 395
2 citations
Jump To
Cite 1 - (2021) 307 IR 395
Cite 2 - (2021) 307 IR 395
Turay v Workers' Compensation Regulator [2023] ICQ 13
2 citations
Jump To
Cite 1 - [2023] ICQ 13
Cite 2 - [2023] ICQ 13
Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 79
2 citations
Jump To
Cite 1 - [2014] QIRC 79
Cite 2 - [2014] QIRC 79
Workers' Compensation Regulator v Glass(2020) 4 QR 693; [2020] QCA 133
2 citations
Jump To
Cite 1 - (2020) 4 QR 693
Cite 2 - (2020) 4 QR 693

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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