Suzanne Rimland v Workers' Compensation Regulator & Ors QIRC - [2020] QIRC 175

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Suzanne Rimland v Workers' Compensation Regulator & Ors QIRC [2020] QIRC 175
PARTIES:	Suzanne Rimland (Applicant) v Workers' Compensation Regulator (First Respondent) State of Queensland (Department of Communities, Disability Services and Seniors) (Second Respondent)
CASE NO:	WC/2020/18 and TD/2019/60
PROCEEDING:	Application for joinder of proceedings
DELIVERED ON:	7 October 2020
HEARING DATE:	On the papers
MEMBER: HEARD AT:	Power IC Brisbane
ORDER:	1. The application to join WC/2020/18 and TD/2019/60 is dismissed.
CATCHWORDS:	WORKERS' COMPENSATION – UNFAIR DISMISSAL - INDUSTRIAL LAW - APPLICATION FOR JOINDER - where Applicant seeks joinder of two applications - where Respondent resists the joinder. PRACTICE AND PROCEDURE - application under Rule 98 of Industrial Relations (Tribunals) Rules 2011 - relevant factors in determining whether appropriate that proceedings be tried at same time.
LEGISLATION: CASES:	Industrial Relations (Tribunal) Rules 2011 r 98 Bishop v Bridgeland Securities (1990) 25 FCR 311 Brisbane City Council v Gillow and Simon Blackwood(Workers’ Compensation Regulator) [2015] QIRC 124 Cameron v McBain [1948] VLR 245 Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 Reynolds v Workers' Compensation Regulator [2019] QIRC 140

Reasons for Decision

Introduction

Ms Suzanne Rimland has filed an unfair dismissal application (Matter No. TD/2019/60) and an appeal against a decision of the Worker's Compensation Regulator (Matter No. WC/2020/18).
On 8 June 2020, the applicant filed an application seeking an order that both matters be joined for hearing.
Both the first respondent, the Workers’ Compensation Regulator ('the Regulator'), and the second respondent State of Queensland (Department of Communities, Disability Services and Seniors) ('the Employer') oppose the application.

The workers' compensation appeal

The applicant's appeal was filed following the determination of the Workers’ Compensation Regulator to confirm a WorkCover decision rejecting Ms Rimland's application for workers' compensation in respect of a psychological injury.
The unfair dismissal application
The unfair dismissal application has been brought in respect of Ms Rimland’s employment which was terminated on 21 June 2019 following her failure to attend an Independent Medical Examination (IME).
Statutory framework
Rule 98 of the Industrial Relations (Tribunal) Rules 2011 (Qld) provides an express power to join proceedings:
(1)A party to a proceeding before the court of commission may apply to the court or commission for the proceeding to be joined with another proceeding.
(2)The court or commission may order 2 or more proceedings to be joined if it considers -
(a)substantially the same question is involved in the proceedings; or
(b)the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or
(c)it is otherwise appropriate or desirable.
(3) When joining proceedings, it is not necessary -

(a)for a written order joining the proceedings to be made; or
(b)for the parties to consent.

(4) If a party claims to be adversely affected by the joining of proceedings, the party may apply to separate the proceedings by advising the registrar and any other affected party in writing before the hearing of the proceeding.

The Applicant's case for joinder

The…

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: [2020] QIRC 175
Decision Date: 7 October 2020

CaseChat Overview and Summary

Suzanne Rimland applied to join two separate applications before the Queensland Industrial Relations Commission. The first, WC/2020/18, was a workers' compensation matter, while the second, TD/2019/60, was an unfair dismissal matter. The Workers' Compensation Regulator opposed the joinder. The Commission was required to determine whether the joinder of the two applications was appropriate under the Industrial Relations (Tribunal) Rules. The Regulator argued that the joinder would cause procedural difficulties, including the potential for unfairness to the employer in the unfair dismissal matter and complications in the presentation of evidence due to the fundamentally different issues in each proceeding.

The Commission examined the principles governing the joinder of matters and noted the broad discretion afforded by Rule 98 of the Industrial Relations (Tribunal) Rules. The Court referred to Cameron v McBain, which emphasised the importance of considering the convenience of the parties and the avoidance of multiplicity of actions. However, the Court also noted the need to avoid unfairness to any party, as highlighted in Bishop v Bridgeland Securities. The Regulator submitted that the joinder would lead to procedural complications, including difficulties in the employer’s participation, the distinction between relevant and irrelevant evidence, and the different cost provisions applicable to each proceeding. The Court found these procedural issues significant and determined that the potential for unfairness outweighed the benefits of joinder.

The Commission dismissed the application to join the two proceedings, concluding that the procedural difficulties and potential for unfairness to the employer in the unfair dismissal matter were too significant. The Court held that joinder was not appropriate or desirable under the circumstances, and therefore dismissed the application.

ORDERS:
1. The application to join WC/2020/18 and TD/2019/60 is dismissed.

Orders

Orders of the court

1. The application to join WC/2020/18 and TD/2019/60 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Regulator also submitted that the following procedural problems arise in relation to a joinder: ● The ability of the respondent in the TD/2019/60 proceeding to be present in the hearing room during the evidence and the requirement in the WC matter for employer witnesses to remain out of the hearing room during earlier evidence.● The Employer, has no right of appearance in the WC/2020/18 proceeding and yet if a joinder is granted, the employer would be a party to the WC/2020/18 proceeding with full rights to participate in that matter. In Reynolds[1] the absence of a right of appearance by the employer was described O’Connor VP as a ‘fundamental difficulty’ in a joinder application relating to WC proceedings where the employer was an applicant on one appeal (and had a right of appearance) and on the other, where the worker was the applicant with the Regulator responding and the employer having no right of appearance.● The hearing of evidence will also be complicated by the need to distinguish between relevant and irrelevant evidence, given by the same witnesses, for the purposes of proceedings involving fundamentally different issues to be determined.● There are different costs provisions applicable to the proceedings under the Workers’ Compensation and Rehabilitation Act 2003 and Industrial Relations Act 2016. In circumstances where there is a presumption the parties will bear their own costs in the unfair dismissal proceeding, it is undesirable and not in the interests of justice for the TD/2019/60 proceeding to be protracted and thus increase the employer’s costs so that it can be heard together with the WC/2020/18 proceeding, where costs usually follow the event. [1] Reynolds v Workers’ Compensation Regulator & Ors [2019] QIRC 140.Consideration Rule 98 of the Industrial Relations (Tribunal) Rules confers upon the Commission a broad and unfettered discretion to join matters in circumstances where - ● substantially the same question is involved in the proceedings; or● the decision in one proceeding is likely to determine or seriously impact on the other proceedings; or ● it is otherwise appropriate or desirable. Herring CJ wrote in Cameron v McBain:The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order.[2][2] [1948] VLR 245, 247. Wilcox J said in Bishop v Bridgeland Securities:The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.[3][3] (1990) 25 FCE 311, 314.