Davis v Workers' Compensation Regulator

Case [2020] ICQ 11

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Davis v Workers’ Compensation Regulator [2020] ICQ 011

PARTIES:

KATIE ANNE DAVIS

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2019/23

PROCEEDING:

Appeal

DELIVERED ON:

18 June 2020

HEARING DATE:

29 January 2020

MEMBER:

Martin J, President

ORDER/S:

1.   Appeal allowed.

2.   The matter is remitted to the Queensland Industrial Relations Commission for rehearing according to law.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEAL – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant provided written submissions at the conclusion of the hearing before the Queensland Industrial Relations Commission – where the appellant also tendered certain diary entries into evidence – where the Deputy President’s reasons stated that neither the written submissions nor some diary entries were considered – whether the Deputy President failed to afford procedural fairness to the appellant

INDUSTRIAL LAW – QUEENSLAND – APPEAL – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where there was uncontested evidence before the Deputy President – whether the Deputy President failed to consider relevant evidence

EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTION: DOCUMENTS – GENERAL PRINCIPLES – MATTERS RELATING TO MAKER OF STATEMENT – GENERALLY – where the appellant gave evidence that she made entries in a diary in the course of her employment – where the diary entries were put into evidence – whether the Deputy President erred by holding that the diary entries were not evidence of the truth of the matters recorded therein

INDUSTRIAL LAW – QUEENSLAND – APPEAL – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where a witness was called to give evidence – where certain evidence was objected to – where the party calling the witness stated that it was happy for the challenged evidence not to be relied upon – whether the Deputy President erred by referring to the evidence as unchallenged

INDUSTRIAL LAW – QUEENSLAND – APPEAL – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant seeks an order that the respondent pay her costs of and incidental to the appeal – whether the court has the power under s 563(1) of the Workers’ Compensation and Rehabilitation Act 2003 to make an order for costs against the respondent

Evidence Act 1977, s 92
Workers’ Compensation and Rehabilitation Act 2003

CASES:

Blackwood v Mana [2014] ICQ 27, cited
Craig v State of South Australia (1995) 184 CLR 163, cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, applied
King v Workers’ Compensation Regulator [2019] QIRC 134, cited
Minister for Migration and Border Protection v SZMTA (2019) 264 CLR 421, applied
Yousif v Workers’ Compensation Regulator [2017] ICQ 004, cited

APPEARANCES:

K M Wilson QC and M Brooks instructed by Morton & Morton for the appellant

S A McLeod QC directly instructed by the Workers’ Compensation Regulator

  1. Ms Davis suffered a psychiatric injury during the course of her employment at a nursing home in Maryborough. It was not in dispute that:

    ·     she…

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Davis v Workers' Compensation Regulator [2020] ICQ 11
Case
[2020] ICQ 11
Decision Date

CaseChat Overview and Summary

In the case of Davis v Workers' Compensation Regulator, the appellant sought to appeal the decision of the Deputy President of the Queensland Industrial Relations Commission regarding her workers' compensation claim. The core issues in this appeal were whether the Deputy President failed to afford procedural fairness by not considering certain written submissions and diary entries, whether he failed to consider relevant evidence, and whether he erred in his interpretation of the diary entries as evidence. The Industrial Court was tasked with determining these legal issues.

The court found that the Deputy President erred in his interpretation of the diary entries as not being evidence of the truth of the matters recorded in them. According to Section 92 of the Evidence Act 1977, diary entries are admissible as evidence if the maker of the statement had personal knowledge of the matters and is called as a witness. The court held that the Deputy President's disregard of the diary entries, based on his incorrect understanding of the law, potentially constituted a failure to consider relevant evidence. Additionally, the court noted that some evidence, such as that from Ms Liebke, was not properly considered due to confusion over the nature of the expert testimony being sought.

The court concluded that the Deputy President's failure to consider the diary entries and other evidence did amount to a denial of procedural fairness, constituting an error of law. Consequently, the matter was remitted to the Queensland Industrial Relations Commission for rehearing according to law. The court also addressed the issue of costs, finding that it did not have the power to order the respondent to pay the appellant's costs under Section 563(1) of the Workers’ Compensation and Rehabilitation Act 2003, which limits such orders to cases where the application is vexatious or without reasonable cause.

Orders

Orders of the court

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Background

Background to the litigation

The Deputy President erred when he said that diary entries are not evidence of the truth of the matters recorded therein. Section 92 of the Evidence Act 1977 provides:“92 Admissibility of documentary evidence as to facts in issue(1)In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if—(a) the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or …” The requirements of s 92(1)(a) of the Evidence Act were met in this hearing, thus, the entries in the diary were admissible as evidence of the fact contained in the diary entry. Section 92(1)(a) does not afford that evidence anything other than admissibility. The evidence can be challenged on other grounds and its reliability, in appropriate circumstances, might be challenged, but the entries still remain evidence of the truth of the matters recorded in them. It appears that that error may have led the Deputy President to disregard the diary entries. He said:“[158] Thirdly, because the content of individual diary entries was generally used as a prompt to the Appellant, such that she might recall additional detail about a particular event or incident, or for her to demonstrate that evidence she had given was accurate - because it reflected what was written in her diary - I have generally not looked at the content of a diary entry. As I said immediately above, a diary entry is not "evidence" by, and of, itself.” (emphasis in original) It was open to the Deputy President to consider the reliability of a diary entry but it is an error to disregard such an entry on the basis that it “is not ‘evidence’ by, and of, itself”. A diary entry is evidence if s 92 of the Evidence Act is satisfied. The appellant also argues that some evidence appears not to have been considered by the Deputy President. I accept that there is no evidence of close consideration having been given to the evidence of Ms Cocking and Ms Pearce, but the subject of that evidence was touched upon by the Deputy President. The appellant particularly relies upon an alleged failure to consider the evidence of Ms Liebke. Ms Liebke was called as an expert. She was a registered nurse with considerable experience. She was asked to comment on the development of pressure sores and wound management. Ms Liebke was entitled to provide her expert opinion on that subject. The manner in which she was asked to give evidence, though, was confusing. Her expertise was not properly established before she gave evidence and it became obvious during her examination that she was being asked questions which did not call for the provision of expert opinion, at least expert opinion which she was qualified to give. It was put for the applicant before the Deputy President that she was being called to answer questions such as “As a registered nurse, would it cause you concern if this was happening with the patients under your care and control[?]”

Evidence

Evidence Before The Court

There was a denial of procedural fairness with respect to both aspects above and each constitute an error of law. Failure to have regard to relevant evidence The Commission is not bound by the rules of evidence but it cannot refuse to consider matters which are deemed to be evidence by statute. The appellant gave evidence that she made entries in a diary in the course of her employment and that diary was admitted into evidence. During the course of her oral evidence, the appellant had occasion to refer to that diary either to refresh her memory or to rely on it for particular details. As was observed by O’Connor VP in King v Workers’ Compensation Regulator:[8] “[16] Section 531(2)(a) and s531(2)(b) of the IR Act provide for a flexible approach to the receipt of evidence and other material in proceedings. The flexibility afforded to the Commission under s531(2) is best suited when the Commission is, for example, exercising its powers within the Industrial jurisdiction. In that regard, the operation of s531(2) gives the Commission a discretion whether to accept material upon which it may rely in reaching a decision.[17]The discretion afforded to the Commission under s531(3) does not however excuse it from applying the general law. In Qantas Airlines Limited v Gubbins, the New South Wales Court of Appeal had to consider s108(1)(b) and s118 of the Anti-Discrimination Act 1977. The former provision provided that the Tribunal in question ‘shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’. The latter provision provided for an appeal to the Supreme Court on questions of law. In a joint judgment, Gleeson C.J. and Handley J., described the two provisions as ‘the apparently conflicting provisions must, as a matter of construction, be reconciled’. Their Honours held that the conflict could be resolved only by holding that the ‘equity and good conscience’ provision did not free the tribunal from its duty to apply the rules of law in arriving at its decisions.” (citations omitted)[8][2019] QIRC 134. Under the sub-heading “Analysis of the evidence and submissions”, the Deputy President said:“[157] Secondly, the entries that the Appellant has written in her diary are not evidence of the truth of the matters recorded therein. Each entry is simply to be treated as a record which the Appellant wrote at, or around, the time a particular event or conversation occurred, and its existence would normally be supportive of a submission that the direct evidence given by the Appellant should be accepted because it matches the contemporaneous diary entry.” The Deputy President erred when he said that diary entries are not evidence of the truth of the matters recorded therein. Section 92 of the Evidence Act 1977 provides:“92 Admissibility of documentary evidence as to facts in issue(1)In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if—(a) the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or …”

Decision

Reasons for decision

Notwithstanding that concession, the Deputy President specifically referred to the evidence which had been objected to and upon which reliance was not to be placed. At paragraph [214] of his reasons, the Deputy President referred to the evidence as being unchallenged. The reference to unchallenged evidence suggests that it played some part in the reasoning of the Deputy President. In the circumstances of the objection and the withdrawal, that was an error.Conclusion The appellant sought an order that this court conclude that her injury was not excluded under s 32(5) of the Act. There is insufficient uncontested and clearly reliable evidence to allow that to occur. The matter will be remitted to the Queensland Industrial Relations Commission for rehearing according to law. The appellant seeks an order that the respondent pay her costs of, and incidental to, this appeal. Section 563(1) of the Act provides:“(1)On an appeal, the industrial court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause.” That section can be contrasted with s 558(3) which gives the power to the Industrial Relations Commission to make an order about the costs of the hearing at its discretion:“(3) Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.” Section 563(1) only allows for an order for costs to be made against the party that made the application. The court does not have the power to make an order for costs against the respondent on an appeal of this nature.

Ratio Decidendi

Legal Principle Established

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