de Jong v Simon Blackwood (Workers' Compensation Regulator) & Walz Constructions Pty Ltd
[2014] ICQ 5
•21 March 2014
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | de Jong v Simon Blackwood (Workers' Compensation Regulator) & Walz Constructions Pty Ltd [2014] ICQ 005 |
PARTIES: | de Jong, Philip v Simon Blackwood (Workers' Compensation Regulator) Walz Constructions Pty Ltd |
CASE NO: | C/2012/37 |
PROCEEDING: | Application to amend application to appeal; application to admit additional evidence at hearing of appeal |
DELIVERED ON: | 21 March 2014 |
HEARING DATE: | 6 November 2013 |
MEMBER: | Deputy President O'Connor |
ORDERS: | 1. Leave to amend the application to appeal filed on 19 July 2013 is refused; 2. Leave to adduce additional evidence pursuant to s 561(3) of the WCRA is refused; and 3. Costs reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPLICATION TO AMEND APPLICATION TO APPEAL - APPLICATION TO ADMIT ADDITIONAL EVIDENCE - Appeal against decision of Industrial Commission - Where, on the appeal to the Industrial Court of Queensland, the applicant sought to amend the application to appeal and adduce additional evidence - Whether leave of the Court should be granted - Where the applicant was legally represented, albeit on a direct access, pro bono basis, at the hearing before the Industrial Commission - Where there was a delay of seven months in filing the amended application to appeal - Where the amended application substantially altered the case from that which the applicant advanced in the Industrial Commission - Whether the additional the additional evidence sought to be adduced at the hearing of the appeal before the Industrial Court was of such a nature that, had the Commission had the advantage of considering it at the hearing below, a different result would have been "almost certain" |
| CASES: | Bar Association of Queensland, Barristers' Conduct Rules (at 23 December 2011) rr 41, 63 Chalk v WorkCover Queensland (2002) 171 QGIG 327 |
| APPEARANCES: | Dr G. J. Cross, instructed by Everingham Lawyers, for the applicant. Mr S. A. McLeod, for the first respondent. Mr R. Bain QC with Mr J. W. Dwyer, instructed by AI Group Legal, for the second respondent. |
Decision
Mr Philip de Jong ("the applicant") alleges that he suffered a workplace injury on
1 February 2011 whilst employed as a rigger with Walz Constructions Pty Ltd ("the second respondent") on the Whitehaven Coal CHPP Project at Narrabri, New South Wales. In the application for compensation, the applicant claimed to have injured his right shoulder, back and right leg as a result of lifting steel weighing approximately 100 kilograms and carrying that steel for more than 40 meters. The second respondent denies any knowledge of the appellant being injured at work in the manner described.
The Commission dismissed the appeal on the basis that it could not be satisfied that the appellant sustained the injury in the manner he claimed and confirmed the decision of the Regulator.
On 13 December 2012 the applicant filed an application to appeal in the Industrial Registry against the decision of the Commission, which was given on 23 November 2012.
On 18 July 2013 an amended application to appeal was filed.
Nature of the application
In short, the Applicant seeks the following orders:
(a) Leave to file an amended application to appeal; and
(b)Pursuant to s 561(3) of the Workers' Compensation and Rehabilitation Act 2003 ("WCRA"), that the Court allow the applicant to rely on additional evidence, being:
(i)the evidence of David Lloyd;
(ii)the further evidence of Peter Surmon;
(iii)the evidence of Melissa Singleton;
(iv)the evidence of Julie de Jong; and
(v)the evidence of Bob Munt.
Application to amend the appeal
It is accepted that the applicant requires leave to amend the application to appeal. In Saville v Q-Comp (2007) 185 QGIG 243 his Honour President Hall wrote:
"There is an unresolved issue about whether the Industrial Court of Queensland's power to grant leave to amend grounds of appeal is to be found in s. 329(d) of the Industrial Relations Act 1999 and/or s. 19 of the Industrial Relations (Tribunals) Rules 2000, or is to be found in the powers incidental to s. 561 of the Workers' Compensation and Rehabilitation Act 2003. However, all parties are agreed that there is a power to grant leave to amend and that the power is discretionary."
The second respondent submitted, as a threshold question, that the application before the Court was incompetent because of the applicant's failure to seek leave to amend the application to appeal filed in the Industrial Registry on 18 June 2013.
Section 561 of the WCRA provides that the Industrial Relations Act 1999 ("IR Act") applies to appeals before the Court. Section 329(d) of the IR Act provides that, unless otherwise prescribed by the IR Act or the Industrial Relations (Tribunals) Rules 2000 ("the Rules"), the Court may allow claims in the proceedings to be amended on terms that appear fair and just. In my view, the power of the Court to grant leave to amend the grounds of appeal can be found in s 329(d) of the IR Act and r 20 of the Rules.
Rule 20 of the Rules permits an applicant, after the hearing of an application has started, to seek leave to amend the application. If the proposed amendments substantially alter the scope and nature of the claim, the applicant must file an amended application that incorporates the proposed amendments. An amendment may be allowed or disallowed on the terms the Court considers appropriate.
At the hearing on 12 July 2013 his Honour President Hall drew the applicant's attention to the requirement that he should seek leave to amend. Notwithstanding that indication, the applicant did not seek leave under the Rules prior to the hearing of this matter, nor did he attempt to formally seek leave during the hearing of the matter before the Court. However, in the submissions of the applicant dated 18 October 2013, one of the orders sought is for leave to file the amended application.
I am of the view that, in the recent matter, the applicant has given inadequate attention to the question of whether leave to amend the application to appeal should have been sought. Nevertheless, for present purposes, the filing of the amended application to appeal and the orders sought in the submissions dated 18 October 2013 should be treated as sufficient to amount to seeking leave of the Court to amend the application as required by r 20 of the Rules.
Time
Section 561 of the WCRA does not specify the time within which an appeal can be brought to the Court. The IR Act applies by virtue of s 561(2) WCRA to an appeal from a decision of an Industrial Commission. Section 346 of the IR Act provides that an appeal against a decision must be commenced within 21 days after the decision is given.[1]
[1] See: s.346(3) IR Act & s.559 WCRA.
In Foundadjis v Bailey (2007) 184 QGIG 177 the view was expressed that justice will best be served by adhering to a 21 day limitation period. In ordinary circumstances the evaluation of whether a case advanced by an applicant for extension of time discharges that positive burden will be guided by the principles developed by Wilcox J in Hunter Valley Development Pty LtdvCohen.[2]
[2] (1984) 3 FCR 344, 348–9.
In Dye v Commonwealth Securities Ltd (No 2)[3] the Full Court of the Federal Court observed:
"The discretion to grant an extension of time in which to commence proceedings is substantively different from the discretion to permit an amendment in existing proceedings. In the former situation a proposed defendant or respondent has the benefit of an existing statutory bar to being subjected to litigation. In the latter, the defendant or respondent is a party to an existing proceeding, the regulation of which is in the control of the Court, albeit subject to any overriding statutory constraint or procedural rule. The distinction between the nature of the discretions is that one involves altering a substantive right, by permitting the bringing of proceedings outside the ordinary limitation period, and the other involves regulating procedural rights in defining the nature of the controversy that the Court is engaged to quell."[4]
[3] [2010] FCAFC 118.
[4] Ibid [18].
The delay in filing the amended application to appeal was some seven months. Whilst the absence of an adequate explanation for the delay in filing the amendment within time is not of itself an obstacle to the granting of an extension of time, some explanation for the delay is to be ordinarily expected.[5] No explanation for the delay has been advanced by the applicant.
[5] The Queensland Public Sector Union of Employees v Department. of Corrective Services (2006) 182 QGIG 503.
Other considerations
It is not correct to submit, as counsel for the applicant did, that the applicant was self-represented. The applicant was represented at the hearing by counsel on a direct access basis, albeit pro bono. Further, the applicant was legally represented at the time the original appeal against the Industrial Commission's decision was filed in the Industrial Registry on 13 December 2012 and, except for a limited period in or about May 2013, was legally represented throughout.
I accept that the amended application to appeal constitutes a case substantially different from the one that was originally submitted by the appellant in December 2012, a point which was conceded by Counsel for the applicant. The applicant is bound by the conduct of his case below.[6]
[6] Zheng v Cai (2009) 239 CLR 446, 453.
The amended application to appeal fails to outline with any degree of particularity the bases upon which the applicant wishes to disturb the decision below. Despite, for example, the use of the words "contrary to the evidence" and "wrong in law" the applicant does not identify the respects in which error in law or fact occurred as well as any material findings that it is said that the Commission should or should not have made, and any material facts that it is said that the Commission should or should not have found.
A further matter in considering my discretion to grant leave to amend the application to appeal is the applicant's prospects of success. On the material before the Court, I cannot be satisfied that the applicant has good prospects of success.
In considering the exercise of the discretion to extend time, I am not satisfied that the applicant has discharged the positive burden of demonstrating that the justice of the case requires the indulgence of a further period.[7]
[7] Foundadjis v Bailey (2007) 184 QGIG 177.
Additional evidence
The applicant seeks and order pursuant to s 561(3) of the WCRA to adduce additional evidence at the hearing of the appeal.
Section 561 of the WCRA provides:
"561 Appeal to industrial court
(1)A party aggrieved by the industrial magistrate's or the industrial commission's decision may appeal to the industrial court.
(2)The Industrial Relations Act 1999 applies to the appeal.
(3)The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
(4) The court's decision is final."
In considering the proper exercise of the discretion under s 561(3) of the WCRA to permit additional evidence, his Honour President Hall wrote in MacDonald v Q-COMP (2008) 187 QGIG 118 ("MacDonald"):
"I adhere to the view expressed in Chalk v WorkCover Queensland (2002) 171 QGIG 327 and Webb v Q-Comp (2004) 177 QGIG 771, that whilst the authorities upon the reception of 'fresh evidence' under the general law do not control the discretion at s. 561(3), those decisions constitute an invaluable source of assistance. Under the general law fresh evidence will normally be allowed only if the suggested 'fresh evidence' is such that it is 'almost certain' or 'reasonably clear' that if the tribunal at first instance had had the advantage of the evidence, a different result would have flowed."
In Greater Wollongong Corporation v Cowan[8] Dixon CJ wrote:
"It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonable clear that it would have produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which defeated party failed to adduce at the first trial."[9]
[8] (1955) 93 CLR 435.
[9] Ibid, 444.
The applicant submits that the additional evidence sought to be relied on can be conveniently grouped under three categories:
(a) the evidence of what CraneSafe is;
(b) the additional evidence of David Lloyd; and
(c) the additional evidence of Peter Surmon.
CraneSafe Evidence
The applicant submits that the Commissioner, as evidenced by her decision, misunderstood the services provided by CraneSafe.
During the hearing, Mr William Potts gave evidence in relation to CraneSafe which formed the basis of the Commissioner's findings at paragraph [37] of her reasons for decision. The following extract from the transcript of the cross-examination of Potts is particularly relevant:
"Mmm?—Also we use external subscribers as well.
Do you subscribe to CraneSafe?—Yes
Isn't there a logbook for CraneSafe?—Yes, there is.
And that logbook in Cranesafe requires you to document each lift of each day's activities, doesn't it?—That crane – that logbook in that crane would be filled out.
Mmm?—It should be filled out if that crane has lifted."[10]
[10] Transcript of Proceedings, de Jong v Q-COMP (Queensland Industrial Relations Commission, WC/2011/362, Commissioner Fisher, 24 October 2012) 6-84.
The findings of the Commissioner at paragraph [37] and [63] of her reasons for decision were clearly open to her to make on the evidence before the Commission.
Evidence of David Lloyd
The applicant wishes to call the "additional evidence" of David Lloyd who was issued with a notice to attend to hearing of the matter before the Commission but failed to appear.
The applicant has not submitted to the Court any explanation from Counsel for the applicant nor the applicant himself as to why Mr Lloyd did not give evidence or why an adjournment was not sought.
In the affidavit of Mrs de Jong dated 17 July 2013 she deposes:
"I recall that my husband and I were sitting behind the bar table and when Commissioner Fisher enquired if an adjournment would be required and Mr Pratt responded that it wouldn't without checking with us with us."
The transcript of proceedings before the Commission on 25 October 2012 is at odds with the affidavit of Ms de Jong as it does not reveal any comment from the Commissioner in relation to an adjournment.[11] The affidavit of Ms de Jong is largely irrelevant.
[11] Transcript of Proceedings, de Jong v Q-COMP (Queensland Industrial Relations Commission, WC/2011/362, Commissioner Fisher, 25 October 2012) 7-2.
It is submitted by the applicant that Lloyd would corroborate the evidence of the applicant that an event occurred on the day alleged and therefore would have been supportive of the appellant's case. Lloyd did not see the accident.
In the reasons for decision, the Commissioner appears to accept the fact that the appellant had dinner with Lloyd on 1 February 2011 and had told him that he had suffered an injury. At paragraph [11], the Commissioner stated: "Mr de Jong had dinner with Mr Lloyd that night. He told Mr Lloyd that he was in pain due to carrying the steel beams." The Commission did not draw any adverse inference from Lloyd's non attendance at the hearing.
The Commission after considering the totality of the evidence, including an assessment of matters of credit, was entitled to conclude that the injury was not one which arose out of or in the course of the appellant's employment or that employment was a significant contributing factor.
Evidence of Peter Surmon
The applicant seeks to rely on the affidavit of Robert Sydney Munt sworn on 12 July 2013. Mr Munt is apparently a private investigator who conducted a telephone interview with Peter Surmon on 4 July 2013.
Putting aside the objectionable nature of the affidavit of Munt, in particular, the assertion that the attachment marked "RSM 1" is a true and correct of the transcript of a conversation with Surmon, I am of the view that the evidence of Surmon would not have altered the conclusion of the Commission and certainly not made it "almost certain" or "reasonable clear" that a different result would have flowed.
The applicant has not submitted to the Court any direct evidence from Surmon nor has it provided any explanation for not doing so.
Affidavit of Melissa Singleton
I accept the submission of the second respondent that the first affidavit of Melissa Singleton sworn on 11 July 2013 and, in particular, paragraphs 3 and 4, contain irrelevant information and paragraph six is hearsay. The second affidavit of Melissa Singleton also sworn on 11 July contains irrelevant information and does nothing to advance the merits of the applicant's case.
Exercise of the discretion under s 561(3) of the WCRA
Section 561(3) of the WCRA presupposes that the fresh evidence which is proposed to be adduced by the applicant must be in admissible form and be of such a character of materiality and cogency as to enliven the discretion, and be sufficient to persuade the Court that the discretion should be exercised.
I am not satisfied, after considering the authorities and in applying the approach adopted in MacDonald, that I should exercise my discretion under s 561(3). I am not of the view that, if the Commission had the advantage of the "fresh evidence" at its hearing of the matter, it would have been "almost certain" or "reasonably clear" that a different result would have flowed.
Allegations of impropriety
In the submissions of Counsel for the applicant dated 19 July 2013 it was submitted that:
"The appellant contends that he can establish that shortly prior to the trial the witness Peter Surmon advised his employer that his version of events was contrary to that which he provided to WorkCover and which ultimately Q-Comp relied upon. The appellant contends also that Q-Comp was aware of that change to his evidence. If Q-Comp was aware of the change in evidence, it was not open for them to be inactive on the appeal, they should have actively challenged the evidence that was ultimately given by Surmon".
These are serious allegations which Counsel for the second respondent submitted were entirely unsupported, baseless and gratuitous. No direct evidence was submitted to the Court to support the contentions made. Counsel for the applicant informed the Court that the allegations would not be pursued and that they did not form part of his submissions to the Court.
Having regard to the abandonment of the allegations, it is not necessary for me to express a view. However, it is worth remembering that Counsel must not act as the mere mouthpiece of his or her client and must exercise independent forensic judgment.[12] Nor should Counsel allege any matter of fact in any submission during any hearing unless he or she believes on reasonable grounds that the factual material already available provides a proper basis to do so.[13]
[12] Giannarelli v Wraith (1988) 165 CLR 543. See also Bar Association of Queensland, Barristers' Conduct Rules (at 23 December 2011) r 41 ("2011 Barristers' Rule").
[13] 2011 Barristers’ Rule r 63.
Orders
I make the following orders:
1.Leave to amend the application to appeal filed on 19 July 2013 is refused;
2.Leave to adduce additional evidence pursuant to s 561(3) of the WCRA is refused; and
3.Costs reserved.
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