Rucker v Blackwood
[2014] ICQ 28
•31 October 2014
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Rucker v Blackwood [2014] ICQ 028
PARTIES:
LAURENCE RAY RUCKER
(appellant)
v
SIMON BLACKWOOD (WORKERS COMPENSATION REGULATOR)
(respondent)CASE NO:
C/2014/22
PROCEEDING:
Appeal
DELIVERED ON:
31 October 2014
HEARING DATE:
1 July 2014
MEMBER:
Martin J, President
ORDER:
Appeal dismissed.
CATCHWORDS:
WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant was stood down from active duty in the Queensland Police Service – where the appellant lodged a claim for compensation for a stress/adjustment disorder – where the Review Unit of the Regulator rejected the application – where the Commission rejected the application – whether the appellant was denied natural justice before the stand down notice was issued and the Commissioner erred in taking into account decisions by the Supreme Court on this point – whether this Court should hear, or consider, evidence about the appellant’s susceptibility to work related stress – whether the Commissioner should not have admitted into evidence a briefing note without the author of that note being called.
Workers’ Compensation and Rehabilitation Act 2003
CASES:
Davidson v Simon Blackwood (Workers Compensation Regulator) [2014] ICQ 008
Rucker v Stewart [2013] QSC 182; [2014] QCA 32APPEARANCES
Appellant - litigant in person
M Spry for the respondent, directly instructed by the Workers’ Compensation Regulator
On 4 October 2011 the appellant was stood down from active duty in the Queensland Police Service pursuant to a notice signed by the then Deputy Commissioner of Police, Mr Stewart. The stand down notice was subject to a series of conditions which were included in a memorandum. The appellant was served with the stand down notice and the accompanying conditions on 5 October 2011.
The appellant attended his general practitioner on 5 October 2011 and was provided with a workers’ compensation medical certificate in which the cause of injury was shown as “stress/adjustment disorder”. On the same day the appellant lodged a claim for compensation with WorkCover Queensland.
The Review Unit of the Regulator rejected Mr Rucker’s application for workers compensation and he appealed to the Commission. At the hearing before the Commission, the respondent conceded that the appellant was a worker and that he had suffered a personal injury in the form of “work related stress” as diagnosed by his general practitioner. The point which had to be decided by the Commission was whether or not the injury which was otherwise covered by s 32(1) of the Workers’ Compensation and Rehabilitation Act 2003 was excluded by operation of s 32(5) of that Act. It was for the appellant to demonstrate that s 32(5) did not apply.
The Commissioner came to the conclusion that he was “unable to find that the management action associated with the standing down of the applicant was unreasonable or that the relevant management action was taken in an unreasonable way”.
In his notice of appeal the appellant sets out 19 grounds of appeal. In the appellant’s outline of submissions filed for the hearing of this appeal, he has reorganised those grounds into six categories. Those can be further summarised under the following, broad headings:
(a) the appellant was denied natural justice before the stand down notice was issued and the Commissioner erred in taking into account decisions by the Supreme Court on this point,
(b) this Court should hear, or consider, evidence about the appellant’s susceptibility to work related stress,
(c) the Commissioner should not have admitted into evidence a briefing note without the author of that note being called.
Denial of natural justice?
Mr Rucker asserts that he was entitled to natural justice before any decision to issue a stand down notice was made. He also argues that the Commissioner erred in taking into account the decisions of the Supreme Court in Rucker v Stewart and Ors. The first of those cases[1] was concerned with an application by the appellant in these proceedings under the Judicial Review Act 1991. The second[2] was the unsuccessful appeal from that decision.
[1][2013] QSC 182.
[2][2014] QCA 32.
The matters raised before the Commissioner and the matters raised in the Supreme Court were, to all intents and purposes, the same. In the primary hearing he argued that “as a matter of procedural fairness or natural justice the Deputy Commissioner was obliged to give him an opportunity to be heard before making the stand down decision, which did not occur.”[3] This issue was considered, among the other arguments which had been advanced, by Jackson J. On that point, his Honour, referring to the Police Service Administration Act 1990 concluded:
[3][2013] QSC 182, [8].
“[46] Sgt Rucker contends that before a stand down order could be made in his case the Deputy Commissioner was obliged, as a matter of procedural fairness or to comply with the rules of natural justice, to give him an opportunity to be heard in answer to the contents of the briefing note and the transcript.
[47] In considering this question, it is appropriate to have regard to the other provisions of the Act which are engaged on the making of a stand down decision. With some omissions, they are that:
(a) the relevant officer is stood down from such duties as the commissioner thinks fit: s 6.1(1)(d);
(b) the officer is entitled to be paid salary and allowances at the rate as if the standing down had not occurred: s 6.2;
(c) the officer is relieved of the powers and duties of a constable at common law or under any Act or law: s 6.4(a);
(d) if aggrieved about the decision, the officer may apply to have the decision reviewed by a commissioner for police service reviews: s 9.4(1);
(e) the commissioner for police service reviews has the authority and duty to hear and consider the application for review if duly made and to make recommendations relating to any matter relevant to the review: s 9.4(3);
(f) the review is a non-adversarial administrative proceeding and proceedings should be informal and simple: s 9.4(2)(b);
(g) upon conclusion of the review the commissioner for police service reviews is to make such recommendations as he or she considers appropriate to the commissioner of the police service: s 9.5(1); and
(h) the commissioner of the police service, upon consideration of the matter reviewed an having regard to the recommendations made is to take such action as appears to him or her to be fair and just: s 9.5(2).
[48] The structure of these provisions discloses four important points as to whether there is any obligation to give an officer an opportunity to be heard before a stand down decision may be made. First, the decision relieves the officer of responsibilities and powers but does not reduce the salary or allowance entitlements. Secondly, the decision is subject to an independent review at which the officer has a right to be heard (although no right to legal representation). Thirdly, the review is one on the merits, so that the officer should be able to put material before the commissioner for police service reviews which rebuts or repels the material or evidence which tends to show that there are reasonable grounds on which it appears that the officer will be or may be liable to disciplinary action. Fourthly, following the review and recommendation of the commissioner for police service reviews, it is the commissioner of the police service who makes the substantive decision upon what action to take. Thus, the Act confers both the original power to stand down and the power to affirm or terminate a stand down decision after review upon the same repository.
[49] Having regard to the purpose of the stand down power and the structure of those provisions, it seems to me that the Act expressly provides for an appropriate opportunity for an officer to be heard as to why a stand down decision should be terminated. The review is not in the nature of an appeal to a higher repository of power. The commissioner for police service reviews ultimately makes a recommendation only, and it is that recommendation to which the commissioner must have regard when considering the appropriate action following the review. The nature of a stand down decision is not final – it is a procedure to temporarily hold the position, while the substance of a disciplinary action matter is determined. It does not amount to a final decision of any kind as to whether the police officer has been guilty of misconduct or breach of discipline. As a matter of course, the question of whether to stand an officer down most likely will be decided at the outset of a disciplinary action matter, where the material or evidence will not be finalised. It is counter-intuitive to conclude that at that stage the commissioner would be ready to weigh up both sides of the matter to form a concluded or near concluded view of the strength of the allegation of misconduct or breach of discipline.
[50] These matters indicate to me that the Deputy Commissioner was not obliged to give Sgt Rucker an opportunity to be heard in answer to the contents of the briefing memorandum or the transcript before exercising the power to stand down under s 6.1.6.
[51] It follows that Sgt Rucker‘s fourth contention must fail.”
That decision was affirmed on appeal.
While the Commission is not bound by decisions of the Supreme Court, the occasions when it would depart from a decision of that court, which has dealt with the same facts and the same arguments, would be very rare. The Commissioner was correct in the manner in which he considered the decisions from the Supreme Court and adopted the relevant finding. He gave the parties an opportunity to make submissions with respect to those decisions but that opportunity was not taken up by the appellant.
No error has been shown on this ground.
Further evidence?
The appellant seeks to lead evidence from a Dr Chalk. Dr Chalk was not called to give evidence before the Commission. At first instance, the appellant did seek to tender a report from him. In his submissions on appeal, the appellant says:
“The respondent did not call Dr Chalk and an inquiry by the applicant to have him called revealed that the cost was too high and this was mentioned by the applicant in the hearing.”
The appellant does not make any submissions as to why Dr Chalk needed to be called nor what purpose would be served by calling him in these proceedings.
No ground has been demonstrated justifying this course.
Admission of the briefing note
The person who issued the stand down notice gave evidence that he had taken into account a “briefing note” said to have been completed by an assistant commissioner. The appellant argues:
“To allow an unsigned document to be admitted as an exhibit without calling its author who was ‘believed’ to be an officer who was available to give evidence and then be cross-examined does not comply with section 92 of the Evidence Act 1977 and this document should not have been admitted without the author giving evidence.”
The fallacy in that argument is that the document was not admitted as proof of the contents of the document but rather as part of the background to the decision made by the Deputy Commissioner. No error has been demonstrated.
What must the appellant demonstrate?
In order to succeed on an appeal in these circumstances, an appellant must demonstrate a factual, legal or discretionary error on the part of the member of the Commission.[4] The appellant has not demonstrated any error of the kind necessary to succeed.
[4]Davidson v Simon Blackwood (Workers Compensation Regulator) [2014] ICQ 008.
The appeal is dismissed. I will hear the parties on costs.
0
2
1