McEnearney v Simon Blackwood (Workers' Compensation Regulator) - [2019] ICQ 7

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

McEnearney v Simon Blackwood (Workers’ Compensation Regulator) [2019] ICQ 7

PARTIES:

SUE-MAREE McENEARNEY

(appellant)

v
SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)

(respondent)

FILE NO:

C/2017/24

PROCEEDING:

Appeal

DELIVERED ON:

18 June 2019

HEARING DATE:

23 and 29 May 2018

MEMBER:

Martin J, President

ORDER:

The appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant claims that, as a result of particular conduct by her former employer, she suffered a psychological or psychiatric injury – where, in support of that claim, the appellant made serious allegations against her former employer including fraud, misleading and deceptive conduct, and insider trading – where the appellant’s former employer was granted leave to intervene in the Queensland Industrial Relations Commission proceedings as a result – where the appellant’s claim was rejected by the respondent and the Commission – whether the appellant has demonstrated error in the Commission’s findings – whether the Commission erred in granting leave to the appellant’s former employer to intervene in the proceedings and be provided the transcript of the appellant’s testimony prior to giving his testimony – whether the Commission erred in accepting the respondent’s submissions, with the exception of one paragraph, as the “reasons for decision” – whether the Commission applied “the Briginshaw standard” and, if so, erred in doing so – whether the Commission erred in awarding costs against the appellant

Industrial Relations Act 1999, s 274

Workers’ Compensation and Rehabilitation Act 2003, s 32, s 558

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336, cited

Brisbane City Council v Gillow (2016) 255 IR 268; [2016] ICQ 7, distinguished

Carlton v Blackwood (2017) 264 IR 414; [2017] ICQ 1, applied

Camden v McKenzie [2008] 1 Qd R 39, cited

Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, cited

Davidson v Blackwood [2014] ICQ 8, cited

IG Markets Ltd v Crinion [2013] EWCA Civ 587, cited

Li v Attorney General for New South Wales [2019] NSWCA 95, cited

APPEARANCES:

The appellant appeared in person

PB O’Neill instructed by the Workers’ Compensation Regulator for the respondent

Sue-Maree McEnearney was employed by OCS International Pty Ltd. Her precise role was the subject of debate but she was, at least, engaged to perform tasks of a bookkeeping or accounting nature.
She claims that, as a result of particular conduct by the employer, she has suffered a psychological or psychiatric injury. Her claim was rejected by the Regulator and the Queensland Industrial Relations Commission.
Ms McEnearney has assembled 17 grounds of appeal concerning the substantive decision dismissing her appeal below and a further ground with respect to the costs order made by the Deputy President.
The nature of an appeal
An appeal to this court is by way of rehearing on the evidence and, to be successful, an appellant must demonstrate an error or errors. The relevant principles have been set out on many occasions.[1]…

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.

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Details

Case: [2019] ICQ 7
Decision Date: 18 June 2019

CaseChat Overview and Summary

The case of McEnearney v Simon Blackwood (Workers' Compensation Regulator) involved a claim by the appellant, McEnearney, who alleged that she suffered a psychological or psychiatric injury due to the conduct of her former employer. The respondent, the Workers' Compensation Regulator, rejected her claim, and the matter was heard by the Queensland Industrial Relations Commission. The appellant sought to appeal the Commission's decision, arguing that the Commission had made errors in its findings, in granting leave to her former employer to intervene, in accepting the respondent's submissions as its reasons for decision, in applying the Briginshaw standard, and in awarding costs against her.

The legal issues before the court were whether the Commission had demonstrated error in its findings, whether it had erred in granting leave to the former employer to intervene and in providing the transcript of the appellant's testimony prior to the employer's testimony, whether the Commission had erred in accepting the respondent's submissions as its reasons for decision, whether it had applied the Briginshaw standard and, if so, whether it had erred in doing so, and whether it had erred in awarding costs against the appellant. The court examined the reasons provided by the Deputy President for his decision and found that he had not provided sufficient reasons for his conclusions. The court noted that simply incorporating the submissions of the parties into the decision did not satisfy the requirement for adequate reasons.

The court found that the Deputy President had erred in not providing sufficient reasons for his decision. The court held that it was an error of law not to provide reasons for a decision and that the practice of substituting the submissions of one or both parties for the adequate consideration of the issues in a matter was to be avoided. The court noted that the reasons provided by the Deputy President did not demonstrate that he had adequately considered the issues in the matter or the evidence presented by the parties. The court held that the appeal was dismissed, and the decision of the Commission was upheld.

The court did not make any orders in relation to the costs of the appeal. However, the court noted that the appellant had been awarded costs by the Commission and that the question of costs was a matter for the Commission to consider on the appeal. The court held that it was not appropriate for it to make any orders in relation to costs without considering the full context of the case and the submissions of the parties.

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

Full text does not contain this section.

Decision

Reasons for decision

In the reasons of the Deputy President the first 18 paragraphs are taken up with: a general introduction, the description of the background of the appellant and the employer, an overview of the employment relationship, and the conduct of the case. After that, the Deputy President said:“[19] The regulator's submissions deal comprehensively with the myriad issues raised by the appellant. They are well reasoned, fair and accurate. I accept and adopt them as my reasons for decision; although I would not draw the inference suggested at paragraph 20. However, it is necessary that I make some further observations. [20] Both the appellant and the regulator accept that the outcome of this case turns on credit. As Ms McEnearney put it in her submissions in reply: ‘It is clear the outcome of this case rests on the credibility of the Appellant versus the credibility of the employer, specifically the General Manager Mr Stephen Laverick.’[21] Largely for the reasons put by the regulator, I do not find Ms McEnearney to be a credible witness. She, as the appellant, bears the onus of proof to persuade me, on the balance of probabilities, that she has sustained a compensable injury. This she has not been able to do. Although I accept, having regard to the nature of her accusations against Mr Laverick, that the Briginshaw standard applies, I am not even satisfied that she has made out her case on the general standard of proof.” (emphasis added) If the Deputy President had gone no further than that, then I would have been inclined to conclude that he had erred, at least, in not providing sufficient reasons. But, after stating that he adopted the submissions of the regulator as his reasons, the Deputy President went on to provide reasons for him not accepting that the appellant was a credible witness. He examined three instances which he said were sufficient to demonstrate why he concluded that he could not accept the appellant’s evidence. It is an error of law not to provide reasons for a decision. And the mere repetition of a party’s submissions or the incorporation of them by reference in the decision does not satisfy the requirement that reasons be given. The practice of substituting the submissions of one or both parties for the adequate consideration of the issues in a matter is to be avoided. Some instances where that has occurred will demonstrate why. In Commissioner for Railways for the State of Queensland v Peters[4] the New South Wales Court of Appeal considered reasons which dealt with the evidence and submissions of the parties in the following terms:“The evidence in this matter is all contained in the applicant’s case and the circumstances of the commencement of the relationship between the applicant and the first respondent and what transpired thereafter up until the date of injury and indeed thereafter, are all detailed therein. There is no reason why the whole of the applicant’s evidence and the other evidence contained in the applicant’s case should not be accepted and I do accepted in its entirety.”The trial judge then noted that he had incorporated into his judgement the transcript of the submissions made by all the parties. Unsurprisingly, on appeal, all parties accepted that those reasons were inadequate. Kirby P (with whom Priestley JA and Waddell AJA agreed) said at page 417:“(3) It may be possible to conceive an instance where the incorporation of submissions in reasons for judgment would be an adequate compliance with the judicial duty to provide reasons. That was certainly not the case here. … This Court has no idea of the basis upon which Moroney CCJ entered his award. Unless a judicial officer states that basis, there is a risk that he or she will not have addressed attention adequately, or at all, to the arguments of the parties. Certainly, there is the risk that the parties will so conclude and that is damaging to the administration of justice;”[4] (1991) 24 NSWLR 407.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McEnearney v Simon Blackwood (Workers’ Compensation Regulator) [2019] ICQ 7
PARTIES:	SUE-MAREE McENEARNEY (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (respondent)
FILE NO:	C/2017/24
PROCEEDING:	Appeal
DELIVERED ON:	18 June 2019
HEARING DATE:	23 and 29 May 2018
MEMBER:	Martin J, President
ORDER:	The appeal is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant claims that, as a result of particular conduct by her former employer, she suffered a psychological or psychiatric injury – where, in support of that claim, the appellant made serious allegations against her former employer including fraud, misleading and deceptive conduct, and insider trading – where the appellant’s former employer was granted leave to intervene in the Queensland Industrial Relations Commission proceedings as a result – where the appellant’s claim was rejected by the respondent and the Commission – whether the appellant has demonstrated error in the Commission’s findings – whether the Commission erred in granting leave to the appellant’s former employer to intervene in the proceedings and be provided the transcript of the appellant’s testimony prior to giving his testimony – whether the Commission erred in accepting the respondent’s submissions, with the exception of one paragraph, as the “reasons for decision” – whether the Commission applied “the Briginshaw standard” and, if so, erred in doing so – whether the Commission erred in awarding costs against the appellant Industrial Relations Act 1999, s 274 Workers’ Compensation and Rehabilitation Act 2003, s 32, s 558
CASES:	Briginshaw v Briginshaw (1938) 60 CLR 336, cited Brisbane City Council v Gillow (2016) 255 IR 268; [2016] ICQ 7, distinguished Carlton v Blackwood (2017) 264 IR 414; [2017] ICQ 1, applied Camden v McKenzie [2008] 1 Qd R 39, cited Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, cited Davidson v Blackwood [2014] ICQ 8, cited IG Markets Ltd v Crinion [2013] EWCA Civ 587, cited Li v Attorney General for New South Wales [2019] NSWCA 95, cited
APPEARANCES:	The appellant appeared in person PB O’Neill instructed by the Workers’ Compensation Regulator for the respondent