Kim, Insung v Workers' Compensation Regulator - [2018] QIRC 48

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kim, Insung v Workers' Compensation Regulator [2018] QIRC 048

PARTIES:

Kim, Insung
(Appellant)

Workers' Compensation Regulator
(Respondent)

CASE NO:

WC/2017/14

PROCEEDING:

Application to Dismiss

DELIVERED ON:

16 April 2018

HEARING DATES:

11 December 2017
12 December 2017 (Regulator's Submissions)
5 January 2018 (Appellant's Submissions)

HEARD AT:

Brisbane (11 December 2017)

MEMBER:

Deputy President Swan

ORDERS

1. The Application to Dismiss is Granted.

2. The Substantive Appeal is Dismissed.

3. The Appellant is to pay the Regulator's costs of, and incidental to the Application to Dismiss and Appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPLICATION TO DISMISS - Application to dismiss made under Industrial Relations Act 2016 by Workers' Compensation Regulator to dismiss substantive Appeal - No reliable evidence to support the Appellant's claim - Further proceedings before the Commission not desirable in the public interest - Application to Dismiss granted and substantive Appeal is dismissed.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003

Industrial Relations Act 2016

Industrial Relations Act 1999 (superceded)

Pritchard v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 002

Gambaro v Workers' Compensation Regulator [2017] ICQ 005

Cunningham v Commonwealth of Australia [2016] HCA 39, (2016) 335 ALR 363

Adco Constructions Pty Ltd v Goudappel (2014) 254 CLR 1

Yousif v Workers' Compensation Regulator [2017] ICQ 004

Comcare v Burton (1998) 157 ALR 552

Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225

Glover v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 215

MNSBJ Pty Ltd v Dowling (2017) QCA 141

Carlton v Simon Blackwood (2017) ICQ 001

APPEARANCES:

Mr R. Green of Counsel instructed by Ms L. Lee of Park and Co Lawyers for the Appellant.
Ms D. Callaghan of Counsel directly instructed by Ms L. Hedges of the Workers' Compensation Regulator.

Decision

The Workers' Compensation Regulator' (the Regulator) has submitted that the Appeal filed by Mr Insung Kim (the Appellant), be dismissed for the following reasons:

"10.The basis of the Appellant's appeal is that the Appellant has the onus of proof to demonstrate that:

(a)first, that he has sustained the injury of intervertebral disc herniations of both the cervical and lumbar spine;

(b) secondly, whether these conditions arose out of or in the course of employment and employment is a significant contributing factor.

11.The basis for the application to strike out is that the Appellant has no reasonable prospects of success, the cause is trivial and further proceedings are not necessary or desirable in the public interest." [Regulator's submissions]

Progression of the Appeal

The matter had commenced by way of hearing before the Commission, however it was during the course of the Appellant's opening submissions and consideration of the information provided by the Appellant that the Regulator sought to have the matter dismissed.

Legal considerations

Section 451 of the Industrial Relations Act 2016 (IR Act) is as follows:

"451 General powers

(1)The commission has the power to do all things necessary or convenient to be done for the performance of…

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 Kim, Insung v Workers' Compensation Regulator

Details

AGLC: Kim, Insung v Workers' Compensation Regulator [2018] QIRC 48
Case: [2018] QIRC 48
Decision Date: 16 April 2018

CaseChat Overview and Summary

In the matter of Kim, Insung v Workers' Compensation Regulator, the Workers' Compensation Regulator sought to dismiss an appeal lodged by Mr Kim against their decision regarding his workers' compensation claim. The Industrial Commission of Queensland was tasked with deciding whether the Regulator's application to dismiss the appeal should be granted. The primary legal issue before the Commission was whether the application to dismiss the appeal could be justified under section 541 of the Industrial Relations Act 2016 (IR Act). The Regulator argued that the appeal had no real prospect of success, as there was no reliable evidence to support Mr Kim's claim of a work-related injury. They further contended that continuing with the appeal was not desirable in the public interest.

The Commission considered the submissions made by both parties, including the Regulator's reference to the Uniform Civil Procedure Rules 1999 (Qld) and relevant case law such as Gambaro v Workers' Compensation Regulator and MNSBJ Pty Ltd v Dowling. The Regulator's argument was that the appeal lacked merit and was an abuse of process, as per Martin J's decision in Gambaro. The Commission also examined whether workers' compensation claims fell within the definition of an "industrial cause" under section 9 of the IR Act. Ultimately, the Commission found that the appeal did not disclose an arguable case and that it was in the public interest to dismiss it. Consequently, the application to dismiss the appeal was granted, and the substantive appeal was dismissed.

The final orders of the Commission included granting the Regulator's application to dismiss the appeal, dismissing the substantive appeal, and requiring Mr Kim to pay the Regulator's costs associated with the application to dismiss and the appeal. The decision underscored the importance of ensuring that appeals are not pursued without merit and that resources are not wasted on proceedings with little to no chance of success.

Orders

Orders of the court

1. The Application to Dismiss is Granted.

2. The Substantive Appeal is Dismissed.

3. The Appellant is to pay the Regulator's costs of, and incidental to the Application to Dismiss and Appeal.

Background

Background to the litigation

This submission is accepted by the Commission as it relates to s 541 of the IR Act.The Appellant's Statement of Facts and Contentions The Statement of Facts and Contentions submitted by the Appellant should represent a complete statement of the Appellant's case and, unless appropriate amendments are permitted by the Commission, a party is bound by those facts and contentions and may only lead evidence which relates to the identified matters, see Yousif v Workers' Compensation Regulator[8], Martin J at [15] to [17]. [8] Yousif v Workers' Compensation Regulator [2017] ICQ 004 at [15] to [17] The Commission is required to consider whether or not the injury nominated by the Appellant in the review decision, upon which the decision of the Regulator was made, was a work related injury. See Comcare v Burton[9]at 558 and Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services[10] at 234, as discussed in Glover v Simon Blackwood (Workers' Compensation Regulator)[11].[9] Comcare v Burton (1998) 157 ALR 552 at 558[10] Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234[11] Glover v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 215 The Appellant's Facts and Contentions states, inter alia, that: In submissions, the Regulator made reference to the Uniform Civil Procedure Rules Qld 1999, which it says: "25.… provides assistance in identifying matters to be considered when a court or commission are deciding whether a proceeding should be struck out or dismissed on a summary basis: When considering the particulars of this appeal, the Regulator states: In Dr Wallace's Report, he stated that it would be "… of necessity to interview your client with the assistance of an interpreter to clarify the relationship of the injuries to his current symptoms and make note of any other relevant past medical history as well as to conduct a physical examination". [Exhibit 3] The Regulator submits that there is no medical evidence before the Commission that the Appellant has intervertebral disc protrusion in the lumbar spine, and therefore the Appellant cannot discharge his onus of proof on the primary issue of injury or that such an injury was connected with his employment. The Regulator referred to Martin J's, decision in Gambaro[12] because the Application to Appeal did not disclose an arguable case. In that decision (Gambaro at [49]), Martin J referred to MNSBJ Pty Ltd v Dowling[13] and stated that an appeal without merit is an abuse of process and should not be allowed to remain on foot.[12] Gambaro v Workers' Compensation Regulator [2017] ICQ 005[13] MNSBJ Pty Ltd v Dowling (2017) QCA 141 at [28] It is submitted by the Regulator that it is "appropriate" pursuant to s 451(2)(b) General Powers of the IR Act to dismiss the appeal and confirm the decision of the Regulator. The Regulator states that pursuant to s 541(b)(i) Decisions generally of the IR Act, as there is no real prospect of success, it is trite to say that the cause is trivial - "of little value or importance". [Oxford Dictionary]The Appellant's Claim

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 541 of the IR Act, states:"541 Decisions generally The Regulator submits that the powers under s 541 of the IR Act (or the equivalent provision s 331 under the previous Act[1]), have been used to dismiss applications to the Commission under the Workers' Compensation and Rehabilitation Act 2003 (WCR Act), see Pritchard v Simon Blackwood (Workers' Compensation Regulator)[2].[1] Industrial Relations Act 1999[2] Pritchard v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 002 However, in Gambaro v Workers' Compensation Regulator[3], Martin J, President, declined to rely upon s 541 of the IR Act in an application to dismiss an appeal to the Industrial Court, on the basis that submissions had not been made in the subject application or in Pritchard about the applicability of that section and it was "well arguable" that a claim for workers' compensation does not fall within the definition of "industrial cause".[3] Gambaro v Workers' Compensation Regulator [2017] ICQ 005 at [6] Section 9 of the IR Act states as follows:"9 What is an industrial matter The Regulator's submissions concerning the applicability of s 541 in its Application to Dismiss is as follows:"18.In the WCR Act, compensation is repeatedly referred to as an ‘entitlement' of a ‘worker'. [Chapter 3, Parts 1A, 2 and 3] 19.The word ‘rights' referring to legal rights (not proprietary rights) is commonly used interchangeably with the words ‘entitlement' and ‘privilege' - pertinently, by the High Court in relation to retirement allowances [Cunningham v Commonwealth of Australia[4] per French CJ, Kiefel and Bell JJ] and workers' compensation [Adco Constructions Pty Ltd v Goudappel[5]]."[4] Cunningham v Commonwealth of Australia [2016] HCA 39, (2016) 335 ALR 363 [5]Adco Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 The Commission was taken to the references made above in Cunningham v Commonwealth of Australia and Adco Constructions Pty Ltd v Goudappel. In Cunningham, per French CJ, Kiefel and Bell JJ (see headnote): And further, at paragraph [43] [6] of that Decision:"[43]The term "property" in s 51(xxxi) has always attracted a liberal construction in this Court. Some cases concerning s 51(xxxi) have drawn a distinction between rights recognised by the general law and those which have no existence apart from statute and whose continued existence depends upon statute. The dichotomy is useful. Rights which have only a statutory basis are more liable to variation than others. As was said in Chaffey, however, where the asserted "property" has no existence apart from statute, further analysis is imperative. It is a truism that statutory rights, which are not constitutionally protected, may be subject to variation or extinguished by legislative action. There are, however, some statutory rights which, having regard to their character and the context and purpose of the statute creating them, can be regarded as inherently variable. Statutory remuneration falls into that category. So too does an entitlement to a retiring allowance."[6] Cunningham v Commonwealth of Australia [2016] HCA 39 (12 October 2016)

Ratio Decidendi

Legal Principle Established

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