Blenner's Transport Pty Ltd v Gleeson and Simon Blackwood (Workers' Compensation Regulator) (No 2)

[2014] QIRC 72

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Blenner's Transport Pty Ltd v Gleeson and Simon
Blackwood (Workers' Compensation Regulator)
(No. 2) [2014] QIRC 072
PARTIES:	Blenner's Transport Pty Ltd
(Applicant)
v
Gleeson, Stephen
(First Respondent)
and
Simon Blackwood (Workers' Compensation Regulator
(Second Respondent)
CASE NO:	WC/2014/133
PROCEEDING:	Application for Adjournment of Hearing
DELIVERED ON:	28 April 2014
HEARING DATE:	23 April 2014
MEMBER:	Vice President Linnane
ORDERS :	Application for an adjournment of the hearing of
WC/2013/183 is dismissed.
CATCHWORDS:	WORKERS'  COMPENSATION LAW -
ADJOURNMENT  OF WORKERS'
COMPENSATION  APPEAL PENDING
CRIMINAL PROCEEDINGS - Application by organisation given a right to be heard in a workers' compensation appeal - Adjournment sought for indeterminate period (until finalisation of criminal proceedings) - Potential witnesses charged with numerous criminal offences - Concern about self incrimination - Balancing of justice between a party's right to have workers' compensation claim determined against difficulty faced by potential witnesses for party given a right to be heard - Balance of justice favours the worker's right to have his appeal determined - Adjournment application dismissed.
INDUSTRIAL LAW - ADJOURNMENT OF CIVIL PROCEEDINGS PENDING CRIMINAL PROCEEDINGS
CASES:	s. 320(2) of Industrial Relations Act 1999
Workers' Compensation and Rehabilitation Act 2003 Transport Operations (Road Use Management - Fatigue Management) Regulation 2008
Gleeson v Blenners Transport Pty Ltd t/a Blenners
Transport [2013] FWC 76
Gleeson v Blenners Transport Pty Ltd t/a Blenners
Transport [2013] FWC 3394
Blenner's Transport Pty Ltd v Gleeson and Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 069 McMahon v Gould (1982) 7 ACLR 202 Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 Re AWB Limited [2008] VSC 473 White v ASIC & Ors [2013] QCA 357
APPEARANCES:	Mr A. McLean Williams, Counsel instructed by Sparke Helmore Lawyers for the Applicant Mr M. Horvath, Counsel instructed by Smiths Lawyers for the First Respondent Mr S. Gray, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the Second Respondent

[1] This is an application by Blenner's Transport Pty Ltd (Applicant) pursuant to s. 320(2) of the Industrial Relations Act 1999 seeking an adjournment of the hearing of a workers' compensation Appeal by Stephen Gleeson against a decision of Simon Blackwood (Workers' Compensation Regulator) (Regulator) to reject his claim for compensation (WC/2013/183). WC/2013/183 is listed for hearing at the Tully Magistrates Court commencing on Monday 28 April 2014 i.e. the hearing is due to commence two working days after the hearing of this application. Given this, the hearing of this application was listed with short notice.

[2]     The Appeal in WC/2013/183 was filed by the Gleeson on 31 May 2013. A Further Directions Order was issued on 3 October 2013 which provided for directions for the hearing of Mr Gleeson's appeal and set the hearing dates of 28, 29, 30 April and 1 May 2014 at the Tully Magistrates Court.

[3]    Mr Gleeson lodged his application for workers' compensation with WorkCover Queensland on or about 22 October 2012 in respect of a psychological injury resulting from on-going stress and anxiety in relation to the Applicant's "work practices". The "work practices" relate to fatigue management among the Applicant's employee/contractor drivers. This area of work is governed by the

Transport Operations (Road Use Management - Fatigue Management) Regulation

2008. At the time of injury Mr Gleeson was employed by the Applicant as its Operations Manager. Mr Gleeson's employment with the Applicant was terminated by Leslie Blennerhassett, the Applicant's Managing Director on 13 August 2012.

Brief History of Events to date

[4]     In 2012 the Applicant became the subject of a Queensland Transport and Main Roads (Queensland Transport) investigation focusing on compliance with fatigue management legislation. Queensland Transport commenced formal interviews with a number of the Applicant's drivers in or about August 2012. The outcome of this investigation was that 45 of the Applicant's drivers were charged with 148 offences involving fatigue management regulations for offences in February 2012 and each subsequently pleaded guilty to those charges.

[5]     Following the termination of his employment, Mr Gleeson made an application to

the Fair Work Commission seeking an unfair dismissal remedy. During the course

of that unfair dismissal hearing Mr Blennerhassett represented the Applicant in its

defence of Mr Gleeson's application. On 16 May 2013 Commissioner Spencer

issued a decision pursuant to the Fair Work Act 2009 finding that the Applicant

could not justify a valid reason for Mr Gleeson's dismissal, that Mr Gleeson was not

afforded a fair process in the termination of his employment and that his dismissal

1

was harsh. Mr Blennerhassett gave evidence before the Fair Work Commission.

[6]    In a further decision dated 18 June 2013 Commissioner Spencer ordered that

compensation in the amount of $31,812.80 be paid by the Applicant to Mr Gleeson

2

in respect of his unfair dismissal.

[7]    I have also had the benefit of transcripts of interviews with Mr Blennerhassett conducted by Queensland Transport in respect of its investigations. The first interview was given on 21 January 2013 (Exhibit 4) and the second interview was given on 1 March 2013 (Exhibit 3).

[8]     In addition to the 45 Applicant drivers being charged with 148 offences during February 2012, the investigation undertaken by Queensland Transport resulted in the Applicant, Mr Blennerhassett, Judith Blennerhassett (a director of the Applicant), Brett Peace (a manager of the Applicant) and John Law (a manager of the Applicant) being charged with 742 criminal prosecutions pursuant to the Transport Operations (Road Use Management - Fatigue Management) Regulation 2008 for offences during February 2012.

[9]    Essentially the Applicant seeks an adjournment of the hearing of WC/2013/183 pending the outcome of criminal proceedings against the Applicant, Mr Blennerhassett, Judith Blennerhassett, Brett Peace and John Law as these persons do not wish to give evidence in Mr Gleeson's workers' compensation appeal until after the conclusion of the criminal proceedings pending against each of them. The application seeks an adjournment of this hearing for an indeterminate period.

[10]  Whilst paragraph [3] of the Affidavit of Andrew Ross in support of the current application states that criminal proceedings were commenced against the Applicant and the four other persons in August 2013, the charges did not come to the attention of the Applicant or the other persons until early 2014. Paragraph [5] of that Affidavit went on to state that the charges "specified against each of the individuals

… were laid by Mr McMurray and are currently the subject in some instances of a

request for particulars and future challenge to elements of the prosecution". Mr Ross goes on to state that the "procedure for the summary charges is governed by the Justices Act 1886 and the defendants are each entitled to the right of silence and are not required to make disclosure of documents".

[11]  It is thus submitted that the Applicant will not be able to properly respond to Mr Gleeson's Appeal before the Queensland Industrial Relations Commission (Commission) without:

 Mr Blennerhassett and others waiving their right to silence in the criminal

proceedings;

 giving rise to the risk of incrimination by direct evidence in materials disclosed
in response to the further directions order made on 16 April 2014; and

 giving rise to the real risk of incrimination by means of derivative evidence

obtained by prosecution authorities using the disclosed material as a basis for

subsequent investigations.

Applicant's Application for a Right to be Heard in WC/2013/183

[12]  Since October 2013 the Regulator has attempted to prepare for its defence of WC/2013/183. The Regulator received no assistance whatsoever from the Applicant in that time. Unless and until an employer provides the Regulator with information that would enable it to defend a worker's appeal against a decision of the Regulator, the Regulator faces an almost impossible task.

[13]  In correspondence dated 11 February 2014 the Regulator e-mailed Leslie Blennerhassett as follows:

"As you are aware Mr Gleeson has lodged an Appeal in the Queensland Industrial Relations Commission against the decision to reject his claim for workers' compensation benefits.

I confirm the matter is listed for hearing in the Tully Magistrates Court on 28,
29, 30 April and 1 May 2014.

The Regulator is currently reviewing whether or not to defend the review decision.

We strongly suggest that you engage solicitors to represent your organisation cannot protect your interests during the hearing of this appeal.

in this matter.

In light of the recent screening of the Four Corners report relating to the transport industry, and media reports the following day, indicating directors of Blenner's Transport Pty Ltd have been charged with related offences, we are concerned that as Mr Gleeson's employer, you will have additional interests to protect during the course of the hearing than those of the Regulator.

I will contact you in the near future to advise of the Regulator's position regarding defending the review decision."

[14]  Thus, the Applicant was advised as at 11 February 2014 that it should engage

solicitors to represent its interests in Mr Gleeson's Appeal. It is, however, apparent

that little or nothing was done in this regard until 2 April 2014 i.e. the date the

Applicant filed an application in the Industrial Registry for a right to be heard in

WC/2013/183. That application was heard by Commissioner Black on 15 April

3

2014 and a decision was released on 16 April.

[15]  The Applicant was given a right to be heard in WC/2013/183 however, in paragraph [8] of that decision Commissioner Black said the following:

"… In the circumstances I have concluded that it would not be unreasonable to

expect that the trial of Mr Gleeson's appeal listed for hearing on 28 April 2014 and beyond should continue as scheduled. I do not believe, having regard to the submissions made, that such a decision is precluded by considerations of procedural fairness or natural justice."

[16]  In this Application it was submitted by the Applicant in paragraph [2] of its Outline of Submission that:

"Very recently, by Order of Commissioner Black made on 16 April 2014, the Applicant was joined as a respondent party in Workers' Compensation Appeal WC/2013/183."

[17]  In paragraph [1] of the Affidavit in support of the current Application, Andrew Ross swears that:

"On 16 April 2014, Commissioner Black made orders amongst other things

instating the Applicant as the Second Respondent to this appeal …"

[18]  Both the Submission and the Affidavit of Mr Ross are clearly incorrect in both instances. The Workers' Compensation and Rehabilitation Act 2003 does not give an employer a right to be a party to an appeal by a worker against a decision of the Regulator. Nor was the Applicant joined in that application. Commissioner Black simply gave the Applicant the right to be heard in the Appeal by Mr Gleeson. The Applicant is not a party to the Appeal nor is it a Respondent in the Appeal. It is simply an organisation given a limited right to be heard. The parties to WC/2013/183 are Mr Gleeson and the Regulator.

Applicant's Fatigue Management System

[19]  Mr Ross in paragraph [6] of his Affidavit states that Mr Gleeson's claim for workers' compensation is likely to "involve allegations of unreasonable and illegal management practices with respect to the fatigue management of the Applicant's drivers" and generally "will allege non-compliance with Queensland Transport legislation with regard to fatigue": see also Mr Gleeson's Statement of Stressors. It is further asserted that, during the hearing of WC/2013/183, Mr Blennerhassett inevitably will be the subject of personal allegations that he breached Queensland Transport fatigue management legislation. Mr Ross further asserts that Mr Blennerhassett and the other three persons are likely to be prejudiced in their response and defence of Mr Gleeson's appeal in having to give evidence and disclose materials as required by directions issued by the Commission. Thus they would be required to waive their right to silence in the criminal proceedings brought as a result of the investigation of Queensland Transport.

[20] Mr Ross further states as follows:

"I understand that it is a custom practice of Queensland Industrial Relations Commission to suspend the hearing of disciplinary proceedings and appeals from disciplinary proceedings in circumstances where the worker is facing concurrent criminal charges."

[21]  I know of no such custom or practice. In any event, Mr Gleeson is the Appellant in WC/2013/183 not Blenner's Transport Pty Ltd which is simply an organisation given a right to be heard in Mr Gleeson's Appeal.

Applicant's Position

4

[22] The Applicant relied upon the decision in McMahon v Gould for the following

relevant principles associated with a stay application where there are criminal

charges pending:

"(a)	Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 19);
(b)	It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);
(c)	The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson v Bhetcha at 905);
(d)	Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21 are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
(e)	The court's task is one of 'the balancing of justice between the parties' (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905);
(f)	Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905);
(g)	One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's 'right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904). I return to this subject below;
(h)	However, the so-called 'right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings, The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904-5);
(i)	The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905);
(j)	In this regard factors which may be relevant include:

(i)         the possibility of publicity that might reach and influence jurors in the civil proceedings (ibid at 905);

(ii)        the proximity of the criminal hearing (ibid at 905);

(iii)       the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid at 905);

(iv)       the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton);

(v)        whether the defendant has already disclosed his defence to the allegations (Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 736);

(vi)       the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735-6);

(k)	The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;
(l)	In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed (Beecee Group v Barton)".

[23] The Commission was also referred by the Applicant to the decision of the High

5

Court of Australia in Reid v Howard where doubt about the decision in McMahon v

6

Gould was raised and the decision of Robson J in the Supreme Court of Victoria in

respect to the staying of civil proceedings where criminal proceedings are reasonably

7

possible. In Re AWB Limited , Robson J also questioned whether McMahon v

8

Gould should be followed.

[24]  The Applicant submitted that, in the current application, it seeks no more than the current status quo as regards Mr Gleeson's Appeal against the Regulator until such time as the pending criminal proceedings have been resolved. It is further argued that Mr Gleeson's appeal right has been preserved as his appeal was lodged with the Industrial Registry within time. Thus, according to the Applicant, it becomes just and convenient for Mr Gleeson's rights to be stayed, in the interests of justice.

Regulator's Position

[25]  The Regulator opposes any adjournment of the hearing of WC/2013/183. After 11 February 2014 when the Regulator advised the Applicant to obtain independent legal representation, the Regulator undertook further investigations and copies of the charges laid against the Applicant and others and then formed the view that it could no longer continue to defend its earlier decision to reject Mr Gleeson's application for workers' compensation. The Regulator then conveyed that decision to the Applicant in March 2014.

[26]  The fact that charges had been laid against Mr Blennerhassett and other potential witnesses caused the Regulator to change its position. As Mr Gray, Counsel for the Regulator, submitted it is not whether the charges against the Applicant, Mr Blennerhassett and others can be proven, but rather Mr Gleeson's Appeal is about a system of work that caused Mr Gleeson's injury. The Regulator's view is that it is irrelevant whether the criminal charges are successful or otherwise. The Regulator, having obtained further evidence and having reviewed that evidence, does not believe that its decision dated 3 May 2013 (attached to Mr Gleeson's Notice of Appeal) can be defended.

Mr Gleeson's Position

[27]  As might be expected, Mr Gleeson also opposes any adjournment of the hearing of WC/2013/183. It is strongly argued that the Applicant is not in the same position as a party to the proceedings given that it applied for, and was granted, a right to be heard in Mr Gleeson's Appeal. Mr Horvath, Counsel for Mr Gleeson, referred the Commission to the recent Queensland Court of Appeal decision in White v ASIC &

9  10

Ors which relied upon McMahon v Gould. In this case, an application to adjourn a civil trial for possibly three or four more years pending the outcome of criminal proceedings was not granted. In particular the Commission was referred to paragraphs [22] to [25] of Muir JA's decision in that case:

"[22] It was submitted that if the principles articulated in Gould precluded the exercise of a discretion to grant a stay in favour of the appellant, the relevant principles should be reconsidered in the manner identified in Re AWB Ltd (No 1). In that case Robson J referred to doubt expressed about the correctness of Gould, particularly since Reid v Howard.

…

[23]    Even if it were to be accepted that additional weight or emphasis should be afforded to maintaining the relevant privileges consistently with the principles articulated in Reid, it was not submitted that any such approach would result in an unconditional right to the stay of civil proceedings, the continuation of which might have the practical result of forcing a defendant in the civil proceedings to take steps which would waive the defendant's right of silence and thus disadvantage the defendant in criminal proceedings being prosecuted in a different jurisdiction. Moreover, as may be seen from the foregoing discussion, the primary judge did not merely apply the guidelines stated in Gould and his alleged error in not applying the Gould principles reformulated in accordance with Re AWB Ltd (No. 1) was not identified.

The competing interest and considerations

[24]    The appellant's argument did not attempt to identify the extent to which the evidence in the proceedings might coincide with or bear upon the evidence in the New Zealand proceedings. The primary judge accepted that there were 'substantial areas of factual overlap between the present proceedings and the New Zealand proceedings'. The appellant relied on that finding, which was uncontested, to advance the proposition, in effect, that his privileges against self-incrimination and exposure to a civil penalty were so fundamental that they outweighed competing considerations. I am unable to accept the appellant's argument in this regard.

[25]    Once it is accepted, as it must be, that the appellant has no absolute right to a stay of the proceedings in the circumstances under consideration and that the rights and interests of ASIC, the other respondents and also the public interest must be taken into account, it becomes apparent that the considerations in favour of staying the proceedings are outweighed by the considerations against."

[28]  Mr Horvath submitted that the granting of any stay of proceedings was an exercise of discretion and required a balancing of the rights of both the Appellant and the Respondent in WC/2013/183 i.e. a balancing of Mr Gleeson's rights against the rights of the Regulator. The Applicant is not in the same position as a party. Rather the Applicant is an organisation given a right to be heard in the proceedings.

[29]  It was submitted for Mr Gleeson that one of the relevant consideration was whether the Applicant had already waived his right to silence. In this case, Mr Blennerhassett, the Applicant's Managing Director, has already given evidence before the Fair Work Commission and had findings made against him by Commissioner Spencer. Further, Mr Blennerhassett has given two interviews to Queensland Transport. It was contended that Mr Blennerhassett has thus waived his "right to silence". It should, however, be noted that when Mr Blennerhassett gave evidence before the Fair Work Commission and when he participated in the two interviews with Queensland Transport he had not been charged with criminal offences.

[30]  In WC/2013/183 the Applicant has the right to cross-examine and make submissions without necessarily having to lead its own evidence. It was submitted that the Applicant also has the right not to involve itself in WC/2013/183. The Applicant is not compelled to appear and be heard in the proceedings. The Applicant has itself chosen to apply for leave to be heard in WC/2013/183.

[31]  As the Applicant is not a party to WC/2013/183 it is submitted that any findings in that proceeding are not binding on the Applicant in later cases.

Disclosure of Documents

[32]  The Applicant also seeks a stay of directions requiring disclosure of documents by

the Applicant in WC/2013/183. The Applicant contended that there was no

possibility of crafting further directions which would protect the Applicant and its

employees from potential derivative use of disclosed materials or evidence given by

them under oath in WC/2013/183. In this regard the Commission was referred to the

11

decision in Reid v Howard :

"… it is inimical to the administration of justice for a civil court to compel self-

incriminatory disclosures, while fashioning orders to prevent the use of the information thus obtained in a court vested with criminal jurisdiction with respect to the matters disclosed. Nor is justice served by the ad hoc modification or abrogation of a right of general application, particularly not one as fundamental and as important as the privilege against self- incrimination".

[33]  The Applicant submitted that if Mr Gleeson's Appeal was not stayed then the Applicant faced the daunting prospect of needing then to defend matters on two legal fronts, at once. The Applicant fails to understand that it is neither a defendant nor a respondent in WC/2013/183. It has simply been given a right to be heard. The Applicant does not have to defend on this legal front. The consequences to the Applicant of not defending Mr Gleeson's Appeal are dealt with later in this decision.

[34]  Mr Horvath indicated that Mr Gleeson did not now seek any disclosure of documents from the Applicant in WC/2013/183. Mr Gleeson is ready to proceed with the trial in Tully next week.

[35]   I thus vacate Directions 3 and 6 of the Further Directions Order dated 16 April 2014. Those Directions were issued once the Applicant was granted a right to be heard in WC/2013/183.

Conclusion

[36]  Mr Gleeson alleges he was injured in or about August 2012. His claim for workers' compensation was rejected by WorkCover Queensland and its decision was confirmed by the Regulator. Thus he has not been in receipt of workers' compensation since 3 August 2012 when he was first declared unfit to work at all for the period 3 August 2012 to 3 November 2012. In addition to not receiving compensation, Mr Gleeson has also not received any medical expenses in that almost two year period. He is entitled to seek and receive workers' compensation as soon as possible. He suffers from a psychiatric or psychological injury. Delay in receiving treatment for such injuries can have serious consequences.

[37]  The Applicant, in its application for adjournment of Mr Gleeson's Appeal hearing, argues that Mr Gleeson's rights are protected because he filed his Notice of Appeal within the stipulated timeframe. The Applicant is also unable to give any timeframe within which the criminal proceedings will be finalised. Whilst the charges were laid early this year, the Applicant is obviously planning interlocutory proceedings and thus the hearing date for these charges may be some years away. Then there is the appeal rights of both the prosecution and the defence to also be considered.

[38]  This is not a matter of Mr Gleeson's rights being protected given that he filed his

Notice of Appeal within time. He was unfairly dismissed from his employment with

the Applicant in August 2012. As at 18 June 2013 (the second decision of

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Commissioner Spencer), Mr Gleeson was on Newstart Allowance, had earned a total amount of $1,100.00 since the termination of his employment and produced medical certificates to the effect that he remained unfit for work due to his medical condition. Mr Gleeson no doubt has been forced to either personally pay for medical expenses or has not received appropriate medical treatment in that period. The suggestion that Mr Gleeson wait another one, two or more years before he receives compensation and/or medical treatment paid for by WorkCover Queensland does not, in my view, protect his rights. If his workers' compensation claim is successful then he is entitled to receive compensation for the period during which he was unable to work because of his injury and he is also entitled to receive medical treatment for that injury. These rights cannot be compensated for by adjourning the hearing date of Mr Gleeson's Appeal.

[39]  The Applicant chose to make an application for a right to be heard in WC/2013/183. The Regulator was set to defend its decision to reject Mr Gleeson's application for workers' compensation. No doubt WorkCover Queensland and the Regulator, when deciding whether or not to approve Mr Gleeson's application for workers' compensation, were influenced by statements provided to WorkCover Queensland and the Regulator by the Applicant's Managing Director and/or other senior officers of the Applicant. Mr Gleeson is entitled to test that evidence.

[40]  The fact that 45 drivers have already pleaded guilty to charges laid against them under the Transport Operations (Road Use Management - Fatigue Management) Regulation 2008 is a matter that is likely to be before the Commission in any hearing of WC/2013/183.

[41]   Mr Blennerhassett, Judith Blennerhassett, Brett Peace and John Law are not required to give evidence before the Commission in WC/2013/183. They are not compellable witnesses. Their right to the privilege of self-incrimination is not impeded if they do not give evidence in the proceedings. The Applicant can cross-examine Mr Gleeson and his witnesses and put them to proof. The Applicant can also make submissions in the hearing of WC/2013/183.

[42]  I accept that Mr Blennerhassett, Judith Blennerhassett, Brett Peace and John Law may not wish to give evidence and thus avoid the possibility of self-incrimination. At this stage the Applicant has not indicated the names of the witnesses it intends to rely upon in WC/2013/183.

[43]  Taking into consideration Wootten J's guidelines for dealing with applications to stay civil proceedings because of pending criminal proceedings, I conclude that:

	prima facie Mr Gleeson is entitled to have his workers' compensation appeal heard in the ordinary course of the procedure and business of the Commission i.e. on 28 April - 1 May 2014 inclusive;
	it is for the Applicant to justify on proper grounds why I should interfere with this entitlement. The ground relied upon is the potential for self-incrimination should they give evidence in WC/2013/183;

 the burden is on the Applicant to show that it is just and convenient that

Mr Gleeson's ordinary rights should be interfered with. The Applicant has not discharged this burden;

	the Applicant is not entitled, as of right, to have WC/2013/183 stayed pending the outcome of criminal proceedings faced by the Applicant and possible witnesses in WC/2013/183. This is particular so when the Applicant is not a party to WC/2013/183 but has simply been given a right to be heard in the proceeding;
	in dealing with this application I am required to balance the justice between the parties. The Applicant is however not a party to WC/2013/183. In any event the Applicant's potential witnesses' "right to silence" is required to be considered. On the other hand, Mr Gleeson's right to have his application for workers' compensation dealt with within a reasonable time is also to be considered. As I indicated earlier, Mr Gleeson has been without the benefit of compensation now for almost two years. To delay his Appeal hearing for an indeterminate time does not give Mr Gleeson justice;
	no material has been identified to cause me to find that there is a real, and not merely a notional, danger of injustice in the criminal proceedings. There is no date of hearing scheduled for the criminal proceedings. In considering the Applicant's submission before me it would appear that the commencement of criminal proceedings is a long way off. Further, no list of witnesses for the Applicant has been filed in the Industrial Registry in respect of WC/2013/183. One would however assume that, at least, Mr Blennerhassett may be a likely witness should he not be facing criminal prosecution. WC/2013/183 is due to be heard at the Tully Magistrates Court commencing 28 April 2014. There is currently no proximity to that proceeding of the criminal proceedings. There is no identified particular burden on the Applicant in having to deal with both the preliminary criminal prosecution matters and WC/2013/183 at this time.

[44]  Towards the end of the hearing of this application I asked Mr McLean Williams to outline the consequences for the Applicant of a finding that Mr Gleeson was entitled to workers' compensation. The question was posed because it would be WorkCover Queensland who would be responsible for any payments to Mr Gleeson should his Appeal be successful. I was advised by Mr McLean Williams that the Applicant's premiums would rise and it may set a precedent for other claimants. I was further informed that the Applicant employs about 200 employees/contractors. Any increase in workers' compensation premiums in respect of one claim for a stress related injury does not factor in my determination of this application.

[45]  I was further informed that no other employee of the Applicant had made a workers' compensation claim citing the Applicant's fatigue management work practices as a stressor. Should any other employee lodge such a claim it will be some considerable time before any such claim would be listed for hearing. At that time the criminal prosecutions against the Applicant and its four senior officers may have been finalised and the Applicant can defend those proceedings appropriately. Again, this consequence does not factor in my determination of the current application.

[46]  The determination of this application rests on the balancing of justice between, on the one hand, Mr Gleeson's right to have his workers' compensation claim heard and determined in respect of an injury said to have been sustained on or about 3 August 2012 and, on the other hand, the right of the Applicant, an organisation given a right to be heard in WC/2013/183, to delay this hearing pending the finalisation of 742 criminal charges against possible or potential witnesses.

[47]  The balancing of justice in this case favours Mr Gleeson's right to have his claim heard in Tully on 28 April 2014 to 1 May 2014. Both the Appellant and the Respondent in WC/2013/183 oppose the application for an adjournment of the hearing dates.

[48]  I find no real risk of injustice to the Applicant which would justify me denying Mr Gleeson his fundamental right to a hearing next week. I dismiss the application.

[49] Order accordingly.
1
Gleeson v Blenners Transport Pty Ltd t/a Blenners Transport [2013] FWC 76
2
Gleeson v Blenners Transport Pty Ltd t/a Blenners Transport [2013] FWC 3394.
3
Blenner's Transport v Gleeson [2014] QIRC 069.
4
McMahon v Gould [1982] 7 ACLR 202.
5
Reid v Howard [1995] HCA 40; (1995) 184 CLR 1.
6
McMahon v Gould [1982] 7 ACLR 202.
7
ibid
8
McMahon v Gould [1982] 7 ACLR 202.
9
White v ASIC & ORS [2013] QCA 357 (Muir JA, Gotterson JA and Applegarth J).
10

McMahon v Gould [1982] 7 ACLR 202.

11

Reid v Howard [1995] HCA 40; (1995) 184 CLR 1(Toohey, Gaudron, McHugh and Gummow JJ) at [21].

12

Gleeson v Blenners Transport Pty Ltd t/a Blenners Transport [2013] FWC 3394.