Cheng v Workers' Compensation Regulator

[2025] QIRC 267

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Cheng v Workers' Compensation Regulator 2025 QIRC 267

PARTIES:

Cheng, Rameeya
(Applicant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2025/183, WC/2025/184 & WC/2025/185

PROCEEDING:

Application to be legally represented

DELIVERED ON:

7 October 2025

MEMBER:

HEARD AT:

O'Connor VP

On the papers

ORDER:

Leave is granted for the Respondent to be legally represented in matter WC/2025/183, WC/2025/184 and WC/2025/185 pursuant to s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

CATCHWORDS:

INDUSTRIAL LAW – WORKERS' COMPENSATION APPEAL – APPLICATION FOR LEGAL REPRESENTATION – Industrial Relations Act 2016 (Qld) – 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 application is opposed – whether commission should exercise discretion to grant leave – where leave granted.

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld) s 529, s 530
Workers Compensation and Rehabilitation Act 2003 (Qld) s 552

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

Zhong v Melbourne Health [2015] VSCA 165

Reasons for Decision

1. The Appellant, Rameeya Cheng, filed a WCR Notice of appeal in respect of matters WC/2025/183, WC/2025/184 and WC/2025/185, seeking inter alia, for the decisions of the Respondent, the Workers' Compensation Regulator ('the Regulator'), be set aside and a new decision made by the Commission.

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.

3. The Appellant objects to leave being granted for the Regulator to be legally represented.

4. This decision deals with all applications.

The Legislative Scheme

1. Section 552B of the WCR Act provides for legal representation at conference or the hearing of an appeal in the following terms:

552B         Legal representation at appeal or conference

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—

(a)the agreement of the parties; or

(b)     the appeal body’s leave.

1. An appeal body is defined in the WCR Act as the Industrial Commission. [1]

   [1] WCR Act s 548A(1).

2. Section 552B falls within Chapter 13, Part 3, Division 1 of the WCR Act.

3. Chapter 13 of the WCR Act deals with reviews and appeals.

1. Relevantly, Part 3 Division 1 of the WCR Act deals with an appeal to an Industrial Magistrate or the Industrial Commission.

1. Section 548 of the WCR Act provides that Part 3, Division 1 applies to, inter alia, a review decision.[2]

   [2] WCR Act (n 1) s 548(1)(a).

2. As noted above, matters WC/2025/183, WC/2025/184 and WC/2025/185 are appeals to the Commission of a review decision.

3. 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]

   [3] Ibid s 550.

   [4] Ibid, s 552, s 552A.

4. 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]

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

5. 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.

6. It is Chapter 13, Part 3, Division 1 of the WCR Act which provides the statutory right of the appeal with respect to appeals to the Commission regarding a review decision.[6]

   [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. 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]

   [7] WCR Act s 552B(b).

8. 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]

   [8] See also State of Queensland (Office of the Governor) v Workers' Compensation Regulator & Anor [2024] QIRC 205 [27] – [33].

9. 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. The Appellant objects to the Regulator's application for leave and outlines its submissions, in the following relevant categories:[9]

   ·The matter is factually straightforward;

   ·Allowing the Regulator 'external representation' would cause imbalance.

   ·The Regulator's experienced staff are capable of managing the appeal

   ·The errors which the Appellant claims the Regulator has made reflect a lack of diligence from the Regulator rather than exhibiting any need for external lawyers

   ·The grant of leave would unfairly disadvantage the Appellant.

   [9] Appellants Submissions filed 25 August 2025.

2. The Appellant argues that the matter is "factually straight forward". [10] The Appellant contends that it is the opinion of Dr Mohideen and other practitioners whose opinion should be preferred over Dr Barnett who authored the report commissioned by Work Cover.

   [10] Ibid, [5].

3. The Appellant further states that, in light of the conflicting opinions between the medical experts, a referral to a medical assessment Tribunal under s 500 WCRA would be a more efficient and balanced resolution. [11]

   [11] Ibid, [13].

4. The Appellant contends that the granting of external representation would cause an imbalance between the parties where the Respondent presently 'already has' experienced in-house staff capable of managing this appeal. [12] The Appellant further contends that the granting of leave would leave them unfairly disadvantaged and submits that this is inconsistent with the principle that fairness for self-represented litigants must be preserved.

   [12] Ibid, [14].

1. The Appellant states that the Respondent's prior errors reflect a lack of diligence rather than a need for external lawyers. [13]

   [13] Appellants Submissions filed on 15 August 2025, [15].

2. The Regulator submits that the appeals are likely to involve complex medical, factual and legal questions. [14] Arising from this, the Respondent will be required to investigate and assess complex factual and medical evidence.[15] The Regulator further contends that in the application and assessment of questions of both fact and law, the Commission will be aided by the provision of structured submissions by a lawyer specifically addressing the application of the relevant legislation and issues, which in turn, will assist the Appellant. [16]

   [14] Respondents submissions filed 14 August 2025, [10].

   [15] Ibid, [11].

   [16] Ibid, [12].

3. The Regulator contends that legal representation will enable the proceedings to be dealt with more effectively because it would assist by narrowing the relevant issues in dispute thereby reducing the length of any hearing and reduce the potential costs for both parties.[17] The Regulator further submits that any unfairness to the Appellant is ameliorated by the Respondent party being bound by the Model Litigant Principles.[18]

   [17] Ibid, [13].

   [18] Ibid, [17].

4. 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. However, the Appellant submits that the appeal is neither factually nor legally complex.

5. In the notices of appeal, the Appellant raises errors of law, fact and procedure. The relevant issues which will require determination across all three appeals involve a consideration of sections 32, 220, 144A and 144B of the WCR Act. Let me briefly turn to the questions to be considered in respect of each appeal:

WC/2023/183 – Section 32 WCR Act

(a)   Did the worker sustain a personal injury or injuries, namely vestibular migraine and cervicogenic headaches?

(b)   Did the personal injury or injuries arise out of, or in the course of the worker’s employment?

(c)   Was the worker’s employment a significant contributing factor?

WC/2025/184 – Section 220 WCR Act

(a)   In relation to the Appellant’s accepted claim of perforated tympanic membrane (aggravation) was WorkCover required to refer the Appellant to an accredited rehabilitation and return to work program?

WC/2025/185 – Section 144A and 144B WCR Act

(a)   Has the Appellant’s entitlement to weekly compensation because of the work-related injury (perforated tympanic membrane (aggravation) stopped; and

(b)   Has the Appellant’s entitlement treatment, hospitalisation and expenses stopped for the work-related injury (perforated tympanic membrane (aggravation))?

1. Whilst the Appellant contends that the matters before the Commission do not involve any degree of complexity, such an assessment is made through the narrow prism of her own case. The task of the Commission is to embark on a wider, more balanced forensic exercise and to assess the factual and medical evidence to arrive at its ultimate determination.

2. In Wanninayake v State of Queensland (Department of Natural Resources and Mines)[19], Neate IC, in assessing whether to grant leave for a self-represented litigant to be represented, observed:

   … 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 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.[20]

   [19] [2014] QIRC 79.

   [20] Ibid, 6.

1. The primary contention of the Appellant's submissions is that she perceives it would be unfair to grant legal representation to the Regulator in circumstances where the Appellant is not legally represented in the proceedings.

2. The Appellant's election not to be legally represented should not be held as a bar against the Regulator being granted leave. As was observed by Neate IC in Wanninayake:

   The fact that one party, either by choice or circumstances, is not represented by a lawyer is no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases. That point is strengthened when, as in this case, the respondent party is meant to act as a model litigant in accordance with Model Litigant Principles. To the extent that a self-represented party considers it likely that they will be at some disadvantage in proceedings where the other party is, or parties are, represented by lawyers, the self-represented party should proceed on the basis that the Commission will attempt to ensure that the proceedings are conducted fairly within the time allotted for the hearing.[21]

   [21] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 79, 6.

3. The Respondent is bound by the model litigant principles which require, amongst other things, that:

   (a)     the power of the State be used for a public good and in the public interest;        and

   (b)     the principles of fairness are adhered to in the conduct of all litigation.

4. Moreover, it must be remembered that Counsel's paramount duty is to the court and the administration of justice. Whilst Counsel must represent their clients honestly and to the highest standards, unaffected by personal interests, they must also assist in identifying the real issues in dispute early and deal with those issues efficiently.[22]

   [22] Barristers’ Conduct Rules 2025.

1. The Victorian Court of Appeal in Zhong v Melbourne Health[23] referred to the duty of counsel, where appearing against an unrepresented person, to assist the Court to discharge its duties to an unrepresented litigant; namely, "to draw attention to matters that might reasonably bear upon the Court’s decision which, in a case where all the parties were represented, could be expected to be referred to by the opposing practitioners".[24]

   [23] [2015] VSCA 165.

   [24] Ibid, [67].

2. Notwithstanding the Appellant's submissions to the contrary, the Regulator's adherence to the model litigant principles, the obligations imposed upon counsel, 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. I consider that legal representation of at least one of the parties will assist all parties to focus on and consider relevant matters and ensure the efficient and fair conduct of these proceedings.

1. In my view, in undertaking its task, the Commission will be assisted by the involvement of experienced legal representation. 

Order

1. Leave is granted for the Respondent to be legally represented in matter WC/2025/183, WC/2025/184 and WC/2025/185 pursuant to s 552B of the Workers' Compensation and Rehabilitation Act 2003 (Qld).