Choy v Workers' Compensation Regulator - [2019] QIRC 171

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Choy v Workers' Compensation Regulator [2019] QIRC 171
PARTIES:	Choy, Lai Fung (Applicant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2019/7
PROCEEDING:	Application in proceedings for the Industrial Commissioner to recuse himself.
DELIVERED ON:	12 November 2019
MEMBER: HEARD AT:	Dwyer IC On the papers
ORDER:	1. The application is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – interlocutory application – application for recusal – alleged business association with worker's former employer – no evidence of business association as alleged – no particulars to allegation - lack of evidence to support relevant test
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Polites and another; Ex parte Hoyts Corporation Pty Ltd and others (1991) 173 CLR 78

Reasons for Decision

Ms Choy (the Applicant) is the appellant in an appeal against a decision by the Workers' Compensation Regulator (the Respondent) to reject her application for compensation (the substantive matter).
The Applicant was formerly employed at the Queensland University of Technology (QUT). The basis of the rejection of her claim is, in short terms, that her injury arose out of reasonable management action within the meaning of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003.
The Applicant's claim alleges twenty-nine separate stressors, many of which relate to allegations of bullying from her supervisor and other persons, extending between February and June of 2017.[1]
[1] Applicant's list of stressors filed 17 April 2019.

13 August 2019 mention

The substantive matter was allocated to me in early August and then was listed for mention on 13 August 2019 to ascertain whether the matter was ready to proceed to hearing. At the mention of the matter Mr O'Neill, who appeared as counsel for the Respondent, informed the Commission that the Respondent wished to be heard (on a preliminary basis) on an application to ascertain the date upon which the Applicant's injury was said to arise.
Mr O'Neill was permitted to hand up an application in proceedings and supporting affidavit. The application in proceedings and affidavit had been filed in the Registry earlier on 13 August 2019. It was established that the Applicant had received a copy of this material, though it appears that she had received it only shortly before the mention.
The material was not especially voluminous. It ran to a total of 26 pages, much of which was the Applicant's own medical records. In light of the request, and given the supporting material had just been received, the mention was stood down for approximately 30 minutes to allow the request to be considered.
As an aside, Mr O'Neill had also sought orders with respect to disclosure of audio recordings said to be in the possession of the Applicant. However, later in the course of the mention, he indicated a willingness to refrain from pressing that…

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.

Continue reading Choy v Workers' Compensation Regulator

Details

AGLC: Choy v Workers' Compensation Regulator [2019] QIRC 171
Case: [2019] QIRC 171
Decision Date: 12 November 2019

CaseChat Overview and Summary

In the case of Choy v Workers' Compensation Regulator, the applicant, Ms Choy, sought the recusal of the Deputy President on the basis that he had a 'business association' with her former employer, QUT. The matter was heard in the Queensland Civil and Administrative Tribunal, a tribunal with jurisdiction to hear and determine disputes under various Acts of the Queensland Parliament. The primary issue before the tribunal was whether the Deputy President had a disqualifying interest or bias that would necessitate his recusal.

The tribunal examined the nature and extent of the Deputy President's past association with QUT, which was limited to volunteering as a lecturer and instructor for approximately 20 years. The Deputy President had notified QUT that he was no longer available to volunteer his services upon his appointment to the tribunal. The tribunal held that Ms Choy's allegation of a disqualifying interest was not adequately supported by particulars or evidence. The tribunal cited the principle in Ebner v Official Trustee in Bankruptcy, which sets out the test for determining whether a tribunal member should recuse themselves due to a potential bias or disqualifying interest. The tribunal concluded that Ms Choy had not satisfied the first test, which requires the identification of a circumstance that might lead the tribunal member to decide the case on something other than a legal or factual basis.

The tribunal dismissed Ms Choy's application for recusal, finding that there was no evidence of a business association as alleged, and no particulars to support the allegation of a disqualifying interest. The tribunal noted that the mere fact that the Deputy President had volunteered as a lecturer at QUT did not, in itself, amount to a disqualifying interest. The tribunal held that the applicant's submission that the Deputy President's presence in the hearing room reminded her of her traumatic experiences at QUT was not sufficient to establish a disqualifying interest or bias.

In summary, the tribunal dismissed Ms Choy's application for the Deputy President's recusal, finding that there was no evidence to support her allegation of a disqualifying interest or bias. The tribunal held that the applicant had not satisfied the relevant test for recusal, and that the mere fact of the Deputy President's past association with QUT did not amount to a disqualifying interest.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Finally, in Re Polites and another; Ex parte The Hoyts Corporation Pty Ltd and others,[17] Brennan, Gaudron and McHugh JJ said:…the prior involvement of the Deputy President with associations or with governments who are frequently parties to proceedings before the commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case.[18][17] (1991) 173 CLR 78.[18] Ibid, 87.Consideration The Applicant alleges that there arises an 'apparent conflict of interest' because I have a 'business association with QUT through provision of lecture services at QUT'. This is the singular basis of her application for my recusal. The Applicant, notwithstanding she had the opportunity to do so in written submissions, failed to elaborate on the 'information' she purportedly based her allegation on. In the absence of particulars from the Applicant it ought to be noted in fairness to her that prior to my appointment to this Commission I was a practising member of the Queensland Bar for in excess of 14 years. Before that I was a solicitor for approximately 11 years. In my capacity as a legal practitioner I was periodically a volunteer lecturer at the QUT Legal Practice Course (LPC), which is part of the QUT Faculty of Law, over a period of approximately 20 years. In addition to this, for a lesser period of approximately 10 years, I also volunteered as an instructor on the LPC advocacy intensive. In respect of the latter activities I was sometimes (but not always) paid a casual hourly rate for the day of engagement only. I receive such payment, in my estimation, approximately 6 times. My annual commitment to these activities amounted (in total) to approximately 20-22 hours. During my practising career I had no other association of any description with QUT or any staff outside of those employed at LPC, and if the Applicant believes otherwise, she is mistaken. Importantly, upon my appointment to this Commission I notified the course director, Associate Professor Allan Chay, that I was no longer available to volunteer my services. Having regard to the authorities cited above and the principal espoused in Ebner v Official Trustee in Bankruptcy[19] the Applicant has failed the first of the two tests. Ms Choy has failed to adequately identify what it is that might lead me to decide her case on something other than a legal or factual basis. The reference to 'business association' is not explained and in any event, it is not an accurate description of my previous relationship with QUT LPC. A bland assertion of association with QUT is, in my view, not enough.[19] (2000) 205 CLR 337. Even if one considers the simple proposition: that a former casual/volunteer lecturer with QUT will be biased towards QUT, that is not the assertion of the Applicant. At its highest, the Applicant's submission appears to be that the alleged trauma she experienced whilst working at QUT is revisited upon her when she sees me in the hearing room.[20] That is to say, she associates me with QUT, and that in turn reminds her of her traumatic experiences.[20] Transcript, 2 October 2019, page 1-4 line 15-30.