Shaw v Workers' Compensation Regulator

Case [2022] ICQ 24

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Shaw v Workers' Compensation Regulator [2022] ICQ 024

PARTIES:

Shaw, Trent
(Appellant)

v

Workers' Compensation Regulator
(Respondent)

CASE NO.:

 C/2022/5

PROCEEDING:

 Application in existing proceedings

DELIVERED ON:

 9 August 2022

HEARING DATE: 

16 June 2022

MEMBER:

 Merrell DP
HEARD AT:

Brisbane

ORDERS:

1.       Pursuant to r 226(2)(f) of the Industrial Relations (Tribunals) Rules 2011, the Appellant's application to appeal is dismissed.

2.       Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a)     the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Friday, 26 August 2022; and

(b)     unless otherwise ordered, the decision on costs be determined on the papers.
CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - APPLICATION IN EXISTING PROCEEDINGS - APPLICATION TO SET ASIDE APPLICATION TO APPEAL - Appellant was formerly employed as the Principal of the Kin Kin State School - Appellant suffered a psychiatric injury - Appellant made application for workers' compensation in respect of that injury - Appellant appealed to the Queensland Industrial Relations Commission against review decision of the Respondent to confirm the rejection of the Appellant's application for workers' compensation by WorkCover Queensland - Appellant's appeal to Queensland Industrial Relations Commission dismissed - Appellant appealed decision of Queensland Industrial Relations Commission to Industrial Court of Queensland - Application in existing proceedings by Respondent to set aside Appellant's application to appeal or, in the alternative, to dismiss appeal or, in the alternative, to set aside Appellant's application to appeal on the basis that the application did not comply with the Industrial Relations (Tribunals) Rules 2011 or that the grounds of appeal were outside the jurisdiction of the Court or otherwise invalid - Appellant's application to appeal does not comply with r 139(2)(c) of the Industrial Relations (Tribunals) Rules 2011 - Appellant's application to appeal does not disclose any alleged errors of law in respect of the decision appealed against - Respondent's application in existing proceedings granted - Appellant's application to appeal set aside

LEGISLATION:

Industrial Relations Act 2016, s 424, s 557, s 558 and s 565

Industrial Relations (Tribunals) Rules 2011, r 139, r 140 and r 226

Workers' Compensation and Rehabilitation Act 2003, s 32, s 540, s 545, s 548, s 549, s 552A, s 560A, s 561, s 562 and s 563.

CASES:

Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321

Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139

Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639

Burton v Workers' Compensation Regulator [2022] ICQ 017

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389

Crime and Corruption Commission v Andersen & Anor [2021] QCA 222

Davis v Workers' Compensation Regulator [2020] ICQ 011

Dranichnikov v Minister for Immigration…

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AGLC
Shaw v Workers' Compensation Regulator [2022] ICQ 24
Case
[2022] ICQ 24
Decision Date

CaseChat Overview and Summary

The case of Shaw v Workers' Compensation Regulator involved an appeal by the Appellant, who had previously been employed as the Principal of the Kin Kin State School, against the decision of the Queensland Industrial Relations Commission to dismiss his appeal regarding a workers' compensation claim. The Appellant had suffered a psychiatric injury and sought compensation, which was rejected by WorkCover Queensland. The Appellant's appeal to the Queensland Industrial Relations Commission was dismissed, and he subsequently appealed to the Industrial Court of Queensland. The Respondent sought to set aside the Appellant's application to appeal on various grounds, including non-compliance with the Industrial Relations (Tribunals) Rules 2011 and jurisdictional issues. The court found that the Appellant's application to appeal did not comply with rule 139(2)(c) of the Industrial Relations (Tribunals) Rules 2011 and did not disclose any alleged errors of law in respect of the decision appealed against. Consequently, the Respondent's application in existing proceedings was granted, and the Appellant's application to appeal was set aside.

The central legal issues in this case were whether the Appellant's application to appeal complied with the procedural requirements set out in the Industrial Relations (Tribunals) Rules 2011 and whether the grounds of appeal were within the jurisdiction of the Court. The court examined the Appellant's application to ensure it met the criteria for an appeal under the Workers' Compensation and Rehabilitation Act 2003 and the Industrial Relations Act 2016. The court also assessed whether the Appellant's grounds of appeal identified any errors of law or fact that warranted a rehearing of the case. In this instance, the court concluded that the Appellant's application to appeal was deficient and did not properly identify any legal errors made by the Queensland Industrial Relations Commission.

The court exercised its discretion under rule 226(2)(f) of the Industrial Relations (Tribunals) Rules 2011 and dismissed the Appellant's application to appeal. The court noted that the Appellant's application did not comply with rule 139(2)(c) of the Industrial Relations (Tribunals) Rules 2011 and did not disclose any alleged errors of law in respect of the decision appealed against. As a result, the Respondent's application in existing proceedings was granted, and the Appellant's application to appeal was set aside. The court also ordered the parties to exchange and file written submissions on the costs of the hearing, as outlined in rule 41(1) of the Industrial Relations (Tribunals) Rules 2011. Unless otherwise ordered, the decision on costs would be determined on the papers.

Orders

Orders of the court

1. Pursuant to r 226(2)(f) of the Industrial Relations (Tribunals) Rules 2011, the Appellant's application to appeal is dismissed.

2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Friday, 26 August 2022; and

(b) unless otherwise ordered, the decision on costs be determined on the papers.

Background

Background to the litigation

For the reasons that follow, I exercise my discretion pursuant to r 226(2)(f) of the Rules and dismiss Mr Shaw's application to appeal.Background Before the Industrial Commissioner, there was no dispute that Mr Shaw:·was a worker within the meaning of the Act; and·had a psychiatric condition.[2][2] Shaw No. 3 (n 1), [29]. The questions to be determined, as identified by the Industrial Commissioner, were:·what psychiatric condition did Mr Shaw have?·when was that psychiatric condition sustained?·did Mr Shaw's psychiatric disorder arise out of, or in the course of, his employment?·was Mr Shaw's employment the major significant contributing factor to his psychiatric disorder?·did Mr Shaw's psychiatric disorder arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with his employment? and·did Mr Shaw's psychiatric disorder arise out of, or in the course of, his expectation or perception of reasonable management action being taken against him?[3][3] Ibid [30]. An issue before the Industrial Commissioner was whether Mr Shaw's psychiatric condition arose some years before specific events that took place at the school on 4 April 2019, and whether those events gave rise to a new psychiatric condition or if those events aggravated any pre-existing psychiatric condition.[4][4] Ibid [31]. The Industrial Commissioner found:·Mr Shaw's psychiatric illness emerged in 2016;·his condition was '… Depression, Anxiety Disorder';·the events of 4 April 2019 did not give rise to any new psychiatric condition; and ·the events of 4 April 2019 were not an aggravation of Mr Shaw's existing psychiatric condition.[5][5] Shaw No. 3 (n 1) [88]. The Industrial Commissioner then went on to consider that, if it was the case that the events of 4 April 2019 did give rise to a new psychiatric condition or that they aggravated Mr Shaw's existing psychiatric condition, whether, in those circumstances, Mr Shaw suffered an injury within the meaning of s 32 of the Act.[6][6] Ibid [95]. In this regard, the Industrial Commissioner found that:·Mr Shaw's existing psychiatric disorder arose out of and in the course of his employment;[7] ·Mr Shaw's employment was not the major significant contributing factor to his existing psychiatric disorder, in that it was more probable than not that personal factors, rather than work related factors, were the major significant contributing factors to his psychiatric condition; [8] and·as such, there was no further requirement to consider s 32(5)(a) and (b) of the Act in respect of any new or aggravated injury.[9][7] Ibid [107]-[120].[8] Ibid [121]-[183].[9] Ibid [184]. The Industrial Commissioner also ordered that Mr Shaw pay the Regulator's costs of the hearing.[10]Appeals to the Court against decisions made by the Commission under ch 13, pt 3 div 1 of the Act[10] Ibid [187]-[190].The relevant provisions of the Act and the IR Act Section 560A(b) of the Act relevantly provides that ch 13, pt 3, div 1A of the Act applies to a decision of the Commission under ch 13, pt 3, div 1 of the Act which is a decision decided by the Commission, on appeal, against certain review decisions of the Regulator.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Industrial Commissioner also ordered that Mr Shaw pay the Regulator's costs of the hearing.[10]Appeals to the Court against decisions made by the Commission under ch 13, pt 3 div 1 of the Act[10] Ibid [187]-[190].The relevant provisions of the Act and the IR Act Section 560A(b) of the Act relevantly provides that ch 13, pt 3, div 1A of the Act applies to a decision of the Commission under ch 13, pt 3, div 1 of the Act which is a decision decided by the Commission, on appeal, against certain review decisions of the Regulator. A decision that a worker does not have an entitlement to workers' compensation under the Act is a review decision against which a worker can appeal to the Commission. [11][11] Workers' Compensation and Rehabilitation Act 2003 s 540(1)(a)(viii), s 545(1), s 548(1)(a) and s 549(1). Section 561(1) of the Act provides that a party aggrieved by the Commission's decision can appeal to the Court. Section 561(2) of the Act provides that the IR Act applies to the appeal. Section 561(3) of the Act relevantly provides that the appeal is by way of rehearing on the evidence and proceedings before the Commission, unless the Court orders additional evidence be heard. Section 562(1) of the Act provides that, in deciding an appeal, the Court may confirm the decision, vary the decision or set aside the decision and substitute another decision. Section 563(1) of the Act provides that on an appeal, the Court may order a party to pay the costs incurred by the other party only if satisfied the party made the application vexatiously or without reasonable cause. There is no doubt that, in respect of a decision of the kind referred to in s 561(1) of the Act, the right to appeal against that decision is pursuant to s 561 of the Act and not s 557 of the IR Act.[12] [12] Tuesley v Workers' Compensation Regulator [2021] ICQ 008, [74] (Davis J, President). However, because of s 561(2) of the Act, an appeal from a relevant decision of the Commission is subject to s 557 of the IR Act,[13] namely, that a person aggrieved by the decision may appeal against the decision to the Court:·on the ground of error of law or excess, or want, of jurisdiction;[14] and·with the Court's leave, on a ground other than error of law or excess or want of jurisdiction,[15] namely, an error of fact.[16][13] Nutley v Workers' Compensation Regulator [2019] ICQ 002 ('Nutley'), [10] (Martin J, President) and Burton v Workers' Compensation Regulator [2022] ICQ 017 ('Burton'), [14]-[18] (Davis J, President).[14] Industrial Relations Act 2016 s 557(1).[15] Industrial Relations Act 2016 s 557(2).[16] Nutley (n 13) [10] and Burton (n 13) [19]. If an application for leave to appeal is made under s 557 of the IR Act, namely, on a ground other than error of law or excess, or want, of jurisdiction, the Court must give leave to appeal if it is satisfied it is in the public interest to do so and may not give leave other than when it is satisfied it is in the public interest to do so.[17][17] Industrial Relations Act 2016 s 565.

Ratio Decidendi

Legal Principle Established

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