Kim v Workers' Compensation Regulator

Case [2019] ICQ 14

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Kim v Workers’ Compensation Regulator [2019] ICQ 14

PARTIES:

INSUNG KIM

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

C/2018/7

PROCEEDING:

Appeal

DELIVERED ON:

20 November 2019  

HEARING DATE:

26 November 2018

MEMBER:

Martin J, President

ORDER:

The appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – ADDITIONAL EVIDENCE – where the appellant seeks leave to adduce additional evidence in support of the appeal – where the evidence was obtained shortly after the hearing in the Queensland Industrial Relations Commission – where the appellant did not inform the Commission of the additional evidence or seek an adjournment – whether the additional evidence should be admitted on appeal – whether the evidence could not have been obtained with reasonable diligence for use at the Commission hearing

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – STRIKE OUT APPLICATION – where the respondent made an application to strike out the appellant’s application to appeal on the first day of the hearing in the Commission – where the respondent’s application was granted – where the appellant argues that the type of injury considered by the Commission in granting the respondent’s application was narrower than that contended for in the appellant’s statement of facts and contentions – where the appellant also contends that the Commission erred in summarily determining the appeal without hearing further evidence which was to be adduced at trial – whether the Commission erred in exercising the discretion to strike out the application to appeal – whether it was in the public interest to strike out the application to appeal

Industrial Relations Act 2016, s 531, s 541, s 545

Workers’ Compensation and Rehabilitation Act 2003, s 32

CASES:

Carlton v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 029, followed

Church v Simon Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461; [2015] ICQ 031, cited

Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435, cited

Gambaro v Workers’ Compensation Regulator [2017] ICQ 005, considered

House v The King (1936) 55 CLR 499, cited

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

Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees and Ors [2017] ICQ 002, cited

Orr v Holmes & Anor (1948) 76 CLR 632, cited

Prange v Brisbane City Council [2012] ICQ 2, cited

Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209, cited

Quinlan v Rothwell [2002] 1 Qd R 647, cited

State of Queensland v Lockhart [2014] ICQ 006, cited

Walz Construction Co Pty Ltd v de Jong and Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 010, cited

Yousif v Workers’ Compensation Regulator [2017] ICQ 004, cited

APPEARANCES:

R Green instructed by Park & Co Lawyers for the appellant

D Callaghan directly instructed by the respondent

Background

  1. Mr Kim (the appellant) is a South Korean national. He arrived in Australia in July 2015 on a working…

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Kim v Workers' Compensation Regulator [2019] ICQ 14
Case
[2019] ICQ 14
Decision Date

CaseChat Overview and Summary

In the matter of Kim v Workers’ Compensation Regulator, the appellant, Kim, sought leave to adduce additional evidence in support of an appeal against a decision of the Queensland Industrial Relations Commission. The Commission had dismissed Kim’s claim for workers’ compensation, and Kim appealed to the Queensland Court of Appeal. Kim sought to present new evidence, including radiological studies and a statement from Dr Malcolm Wallace, which had been obtained after the original hearing. The legal issues before the Court were whether the additional evidence should be admitted on appeal and whether it could not have been obtained with reasonable diligence for use at the Commission hearing. The Court found that the evidence could have been obtained with reasonable diligence and did not meet the criteria for admission as fresh evidence. The Court also considered whether the Commission erred in striking out the appellant’s application to appeal and whether it was in the public interest to strike out the application to appeal. The Court found that the Commission did not err in exercising its discretion to strike out the application to appeal, and it was not in the public interest to permit the appeal to proceed. The appeal was dismissed, and no further orders were made.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant has categorised the grounds of appeal into three groups and I will deal with them in that way:1.The appellant has obtained fresh evidence that was not available at the time of the hearing, which would have brought about an entirely different result (ground 10);2.The Commission erred in summarily determining the appeal without hearing or referring to any evidence (grounds 2, 3, 4, 6, 8 and 9); and3.The Commission erred in concluding that there was no public interest to be served in permitting the appeal to proceed when there was no hearing of evidence (ground 5).Ground 10 – The appellant has obtained fresh evidence that was not available at the time of the hearing, which would have brought about an entirely different result The appellant seeks leave to adduce additional evidence in support of the appeal. The evidence consists of radiological studies undertaken in Australia, together with a statement of Dr Malcolm Wallace made after a review of the appellant in person. Section 561 of the WCR Act governs the conditions of an appeal to this Court. Section 561(3) provides that “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.” The appellant submits that the criteria relevant to the admission of additional evidence on appeal are set out in Orr v Holmes & Anor.[1] In that case, Latham CJ referred to two necessary pre-conditions for the admission of fresh evidence:(a) first, that a new trial should not be granted on grounds of fresh evidence if by the exercise of reasonable diligence the fresh evidence could have been discovered in time to be used at the original trial; and(b) secondly, it must be shown at least that the evidence to be admitted is of such importance as very probably to influence the decision.[1] (1948) 76 CLR 632 at 635. In Council of the City ofGreater Wollongong v Cowan,[2] Dixon CJ said:“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 reasonably clear that it would have been 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 the defeated party failed to adduce at the first trial.”[2] (1955) 93 CLR 435 at 444. In Carlton v Simon Blackwood (Workers’ Compensation Regulator),[3] it was held that: “While this court is not bound by the decisions of other courts which have dealt with applications to call extra evidence, the principles which have been developed can assist in determining an application such as this. So much was recognised by Hall P in MacDonald v Q-COMP. In Akins v National Australia Bank the New South Wales Court of Appeal considered the relevant principles of an application to call fresh evidence. Although the rule that court considered only allowed fresh evidence on special grounds, the criteria which were applied assist in cases like this. The test that court administered had three conditions:(a) The evidence could not have been obtained with reasonable diligence for use at the trial;(b) The evidence must be such that there is a high probability that there would be a different result; and(c) The evidence must be credible.”[3] [2015] ICQ 029 at [4].

Decision

Reasons for decision

This ground fails.Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.