Arehjan v Workers' Compensation Regulator - [2020] QIRC 98

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Arehjan v Workers' Compensation Regulator [2020] QIRC 098
PARTIES:	Nadia Habibi Arehjan (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2019/157 WC/2020/36 WC/2020/37
PROCEEDING:	Application
DELIVERED ON:	3 July 2020
HEARING DATE:	On the papers
MEMBER:	O'Connor VP
ORDERS:	*1. Pursuant to Rule 98 of the Industrial Relations (Tribunal) Rules* 2011, I order that appeals WC/2019/157, WC/2020/36, and WC/2020/37 be joined and heard together. 2. That the evidence in one appeal be the evidence in the other appeals. 3. I will hear the parties in respect appropriate directions for the management of the appeals.**
CATCHWORDS:	WORKERS' COMPENSATION - INDUSTRIAL LAW - APPLICATION FOR JOINDER – where Respondent seeks joinder of three appeals – where Appellant resists the joinder. PRACTICE AND PROCEDURE – application under Rule 98 of Industrial Relations (Tribunal) Rules 2011 – relevant factors in determining whether appropriate that proceedings be tried at same time
LEGISLATION: CASES:	Industrial Relations (Tribunal) Rules 2011 r 98 Bishop v Bridgeland Securities (1990) 25 FCR 311 Cameron v McBain [1948] VLR 245 Ghose v CX Reinsurance Co Ltd [2010] NSWSC 110 Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 Reynolds v Workers' Compensation Regulator [2019] QIRC 140

Reasons for Decision

Ms Nadia Habibi Arehjan has filed three appeals (WC/2019/157, WC/2020/36, WC/2020/37) against separate decisions of the Workers' Compensation Regulator.
On 5 May 2020 the Regulator filed an application pursuant to Rule 98 of the Industrial Relations (Tribunals) Rules 2011 seeking an order that the three appeals to which the appellant and the Regulator are parties, be joined.
The appellant opposes the application.
The appeals
Each of the appeals have their origin in a motor vehicle accident described by the appellant as "On 10^th of February 2017, I hit the tree to avoid hitting a truck and to save my life…".[1] At the time the appellant was employed as an engineer with Incitec Pivot Ltd.
[1] Appellant Statement of Facts and Contentions for Appeal (WC/2019/157).
As a consequence of the accident, the appellant suffered multiple injuries. A brief description of each of the appeals follows:
· Appeal WC/2019/157 is in respect of the respondent's decision to confirm the termination of weekly entitlements for musculoligamentous injury to the cervical spine on and from 2 May 2019, in accordance with sections 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003. It is contended that the basis for termination was evidence from the appellant's treating specialist that there was no longer an "incapacity for work or a requirement for ongoing treatment with respect to your accepted work related neck injury".
· Appeal WC/2020/36 is in respect of the respondent's decision to confirm the termination of weekly entitlements in the period 13 June 2018 to 23 July 2018, with respect to all accepted injuries except for the left wrist EDC tendonitis, in accordance with section 144A of the Act. It is contended that the basis for termination was that WorkCover was not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QIRC 98
Decision Date: 3 July 2020

CaseChat Overview and Summary

In Arehjan v Workers' Compensation Regulator, the Worker, Arehjan, appealed against the decision of the Workers' Compensation Regulator, seeking to overturn or amend decisions relating to workers' compensation. The dispute involved the Regulator's decisions on three separate occasions: WC/2019/157, WC/2020/36, and WC/2020/37. The Respondent sought to join these three appeals under Rule 98 of the Industrial Relations (Tribunal) Rules 2011, arguing that it was appropriate for the appeals to be heard together due to the common issues involved. The Appellant, Arehjan, opposed the joinder, citing personal difficulties and the need for an interpreter as reasons against joining the appeals.

The primary legal issue before the court was whether it was appropriate to join the three appeals under Rule 98 of the IR Rules. The court had to consider whether the proceedings involved substantially the same questions of fact or law, whether a decision in one proceeding would determine or seriously impact the other proceedings, or whether it was otherwise appropriate or desirable for the proceedings to be tried together. The court also had to weigh the Appellant's concerns regarding the impact of joining the appeals on her mental and physical well-being.

The court found that the balance of relevant factors supported the joinder of the appeals. The appeals involved broadly similar issues and were related to the same series of events. The court noted that with appropriate directions and further conferences, any potential issues could be managed effectively. The Appellant's personal difficulties, while acknowledged, did not outweigh the benefits of a consolidated hearing. The court concluded that joinder would not result in unfairness to any party and would promote an efficient and effective disposition of the matter. The court ordered that the appeals be joined and heard together, with evidence from one appeal being admissible in the others, and directed the parties to discuss appropriate management of the appeals.

The final orders were that appeals WC/2019/157, WC/2020/36, and WC/2020/37 be joined and heard together, that the evidence from one appeal be admissible in the others, and that the parties confer on appropriate directions for the management of the appeals.

Orders

Orders of the court

1. Pursuant to Rule 98 of the Industrial Relations (Tribunal) Rules 2011, I order that appeals WC/2019/157, WC/2020/36, and WC/2020/37 be joined and heard together.

2. That the evidence in one appeal be the evidence in the other appeals.

3. I will hear the parties in respect appropriate directions for the management of the appeals.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The parties have not brought to my attention any potential issues in respect of trial management, procedural issues or difficulties in determining admissibility of evidence should an order be made joining the appeals. I do not readily anticipate that any problems are likely. With appropriate directions and the advantage of a further s552A conference any potential problem can be readily addressed to ensure the efficient and effective disposition of the matter. Conclusion Having considered the submissions of both the appellant and Regulator and weighing up the 'relevant factors' as identified by Besanko J in Humphries I have formed the view that the balance lies in favour of making an order pursuant to Rule 98 of the IR Rules. Order1. Pursuant to Rule 98 of the Industrial Relations (Tribunal) Rules 2011, I order that appeals WC/2019/157, WC/2020/36, and WC/2020/37 be joined and heard together. 2. That the evidence in one appeal be the evidence in the other appeals. 3. I will hear the parties in respect appropriate directions for the management of the appeals.

Ratio Decidendi

Legal Principle Established

The appellant's submission highlights the fact that she will require an interpreter due to English not being her first language and that "the appellant physically and mentally, is not ready for long time stress and pressure" and that " [joining the appeals] will increase the hearing time and will have huge pressure on the appellant". Consideration Rule 98 of the IR Rules confers upon the Commission a broad and unfettered discretion to join matters if there is "substantially the same question is involved in the proceedings" or "the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings" or "it is otherwise appropriate or desirable". In Cameron v McBain Herring CJ wrote: In Bishop v Bridgeland Securities, Wilcox J said: The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.[4][4] (1990) 25 FCR 311, 314. In Ghose v CX Reinsurance Co Ltd Austin J said Whilst the authorities suggest that a number of factors have been considered relevant in exercising a discretion to join matters, there are no inflexible rules. What the authorities recognise is that the approach to be taken by a court is one which is conducive to a just and fair resolution of the disputes between the parties, having regard to principles of case management and the desirability of limiting, so far as practicable, the costs and delay of the litigation. In Reynolds v Workers' Compensation Regulator, I cited with approval the case of Humphries v Newport Quays Stage 2A Pty Ltd where Besanko J identified the following factors to assist in determining whether the discretion should be exercised:The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows: Let me now turn to a consideration of the 'relevant factors' as identified by Besanko J in Humphries. It is apparent that factors 4 and 5 have no direct relevance or application to the present case. Are the proceedings broadly of a similar nature? All three matters are 'broadly' of a similar nature each involving an appeal against a decision of the Workers' Compensation Regulator. The mechanism of injury is the same in respect of two of the three appeals. The third appeal relates to a claim that the injury arose out of or relates to an injury said to have arisen on 27 May 2019 during a functional capacity evaluation arranged by WorkCover, however, as I understand the reason for the appellant undertaking the functional capacity evaluation was because of her injuries sustained as a result of the motor vehicle accident. Are there issues of fact and law common to each proceeding?