Brett Reynolds v Workers' Compensation Regulator - [2019] QIRC 140

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Brett Reynolds v Workers' Compensation Regulator & Ors [2019] QIRC 140
PARTIES:	Brett Reynolds (Applicant) v Workers' Compensation Regulator (First Respondent) And Aurizon Operations Limited (Second Respondent)
CASE NO:	WC/2017/6 and WC/2019/20
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	19 September 2019
HEARING DATE:	19 July 2019
MEMBER:	O'Connor VP
ORDER:	1. Application refused. 2. Costs reserved.
CATCHWORDS:	WORKERS' COMPENSATION - INDUSTRIAL LAW - APPLICATION FOR JOINDER – where Applicant seeks joinder of two appeals – where First and Second Respondents resist the joinder.
LEGISLATION: CASES: APPEARANCES:	Industrial Relations Act 2016 s 539 Industrial Relations (Tribunals) Rules 2011 r 98 Workers Compensation and Rehabilitation Act 2003 s 32, s 549, s 552A Bishop v Bridgeland Securities (1990) 25 FCR 311 Cameron v McBain [1948] VLR 245 Gambaro v Workers' Compensation Regulator [2017] ICQ 5 Ghose v CX Reinsurance Co Ltd [2010] NSWSC 110 Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 Seymour v Workers' Compensation Regulator [2017] QIRC 61 Mr R. D. Green of Counsel instructed by Chris Trevor & Associates for the Applicant Mr S. R. McLeod of Queens Counsel directly instructed by the First Respondent Mr P. B. O'Neil of Counsel directly instructed by the First Respondent Mr P. B. Rashleigh instructed by McInnes Wilson Lawyers for the Second Respondent

Reasons for Decision

This is an application in existing proceedings filed by Mr Brett Reynolds seeking an order for the joinder of two separate appeals against a decision of the Workers' Compensation Regulator made pursuant to s 550 of the Workers Compensation and Rehabilitation Act 2003.
Mr Reynolds seeks orders that proceedings in WC/2017/6 and WC/2019/20 be joined and that the evidence in one be the evidence in the other.

The Relevant Law

The Commission may join proceedings under r 98 of the Industrial Relations (Tribunals) Rules 2011 ("IR Rules"). Rule 98 provides as follows:
98 Joining proceedings
(1) A party to a proceeding before the court or commission may apply to the court or commission for the proceeding to be joined with another proceeding.
(2) The court or commission may order 2 or more proceedings to be joined if it considers—
(a)substantially the same question is involved in the proceedings; or
(b)the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or
(c)it is otherwise appropriate or desirable.
…

It is clear that r 98 of the IR Rules confers a broad and unfettered discretion upon the Commission to order two or more proceedings to be joined and heard together. Assistance in exercising that discretion can be gleaned from the following authorities.
In Humphries v Newport Quays Stage 2A Pty Ltd Besanko J said:
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:

1. Are the proceedings broadly of a similar nature?
2. Are there issues of fact and law common to each proceeding?
3.…

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: [2019] QIRC 140
Decision Date: 19 September 2019

CaseChat Overview and Summary

The case of Brett Reynolds v Workers' Compensation Regulator involved an application for joinder of two appeals brought by Mr Reynolds against the Workers' Compensation Regulator. The First and Second Respondents opposed the joinder. The matter was heard in the Court of Appeal, which had to determine whether the appeals should be joined under rule 98 of the Industrial Relations Rules.

The primary legal issue before the court was whether the two appeals could be joined. The court considered various factors to determine if the appeals involved substantially the same question of law or fact, if the decision in one proceeding was likely to determine or seriously impact the other, and if it was otherwise appropriate or desirable to join the matters. The court also took into account the opinion of Dr Jodie Carter, which suggested that there was a risk of Mr Reynolds decompensating if the hearing of the matter was further delayed.

The court concluded that the appeals should not be joined, as they did not involve substantially the same question, the decision in one proceeding was not likely to determine or seriously impact the other, and it was not otherwise appropriate or desirable to join the matters. The court acknowledged the risk of Mr Reynolds decompensating if the hearing was further delayed but decided to hear the parties in relation to securing an expedited hearing date for WC/2017/6. The application for joinder was refused, and costs were reserved.

The final orders were that the application for joinder was refused, and costs were reserved.

Orders

Orders of the court

1. Application refused.

2. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, I turn to Factor 9. The Regulator submits that there are parties in both appeals who will be inconvenienced if the proceedings are tried together. Whilst the nature of the inconvenience has not been fully articulated by the Regulator, it is possible to contemplate that the disparate and discrete nature of the two appeals will potentially involve a number of logistical and, indeed, procedural issues for the parties. Conclusion Having considered the matter I have formed the view that I should not exercise the discretion to join the appeals pursuant to r 98 of the IR Rules. The appeals do not involve substantially the same question; the decision in one proceeding is not likely to determine or seriously impact the other proceeding; and it is not otherwise appropriate or desirable to join the matters. The above consideration of the factors identified by Besanko J in Humphries supports that conclusion. Notwithstanding my conclusion, I am cognisant of the opinion expressed by Dr Jodie Carter which suggests that there is a risk of Mr Reynolds decompensating if the hearing of the matter is further delayed. In this regard, I will hear the parties in relation to securing, if possible, an expedited hearing date for WC/2017/6. Order1.Application refused. 2.Costs reserved.

Ratio Decidendi

Legal Principle Established

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