Tuesley v Workers' Compensation Regulator - [2021] ICQ 8

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Tuesley v Workers’ Compensation Regulator [2021] ICQ 008

PARTIES:

MAUREEN TUESLEY

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2021/04

PROCEEDING:

Appeal

DELIVERED ON:

9 June 2021

HEARING DATE:

12 April 2021

MEMBER:

Davis J, President

ORDER/S:

1.   The appeal is struck out.

2.   The matter is returned to Industrial Commissioner Hartigan to complete the hearing of the appeal from the decision of the Regulator.

3.   By 4.00 pm on 23 June 2021, the parties exchange submissions on costs.

4.   By 4.00 pm on 30 June 2021, the parties exchange reply submissions on costs and state in the reply submissions whether they wish to make oral submissions on the question of costs.

5.   In the absence of an indication by any party of the wish to make oral submissions on costs, the costs will be determined on the written submissions and without oral hearing.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant made a claim for compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (the WCR Act) – where the claim was rejected by WorkCover – where the appellant sought review of that decision by the Workers’ Compensation Regulator (the Regulator) – where the Regulator rejected the review – where the appellant appealed the decision of the Regulator to the Queensland Industrial Relations Commission (QIRC) – where, during the hearing before the Industrial Commissioner, a question arose as to the date the injury was suffered by the appellant – where, by consent, the Industrial Commissioner determined that issue during the hearing but before finally determining the appeal – where the Industrial Commissioner determined the date of injury to be 14 May 2021 – where the appellant appealed that decision – where the Regulator did not oppose the appeal – where the substantive hearing was adjourned to allow the appellant an opportunity to pursue any available avenues of appeal – where, during the hearing of the appeal in the Industrial Court of Queensland, the competency of the appeal arose as an issue – where Counsel for the Regulator submitted the appeal was not competent on the basis that the appeal had not been finally determined and therefore, there was no final appealable decision – where Counsel for the appellant submitted that the appeal was competent pursuant to s 557 of the Industrial Relations Act 2016 (the IR Act) – whether there is a statutorily provided avenue of appeal – whether the appeal is competent

Acts Interpretation Act 1954
Industrial Relations Act 1999
Industrial Relations Act 2016, s 407, s 413, s 424, s 557, s 561
Industrial Relations (Tribunals) Rules 2011
Justices Act 1886 s 4
Uniform Civil Procedure Rules 199,9 ch 7, ch 9
Workers’ Compensation and Rehabilitation Act 2003, s 32, s 164, s 540, s 541, s 542, s 543, s 544, s 545, s 546, s 546A, s 548, s 549, s 553, s 554, s 558, s 560A,…

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.

Continue reading Tuesley v Workers' Compensation Regulator

Details

AGLC: Tuesley v Workers' Compensation Regulator [2021] ICQ 8
Case: [2021] ICQ 8
Decision Date: 9 June 2021

CaseChat Overview and Summary

In the case of Tuesley v Workers' Compensation Regulator, the appellant, Tuesley, sought review of a decision by the Workers' Compensation Regulator which had rejected his claim for compensation under the Workers' Compensation and Rehabilitation Act 2003. The Queensland Industrial Relations Commission (QIRC) also dismissed the appeal, leading Tuesley to appeal to the Industrial Court of Queensland. A significant issue during the hearing was the determination of the date of the injury. The Industrial Commissioner resolved this issue by consent, and the QIRC subsequently determined the date of injury to be 14 May 2021. Tuesley appealed this determination to the Industrial Court of Queensland, which raised the issue of the competency of the appeal. The Workers' Compensation Regulator argued that the appeal was not competent as the QIRC had not finally determined the appeal from the Regulator, leaving no decision that could be appealed to the Industrial Court.

The central legal issues before the court were whether there was a statutorily provided avenue of appeal and whether the appeal was competent. The court considered that for it to have jurisdiction to hear and determine an appeal from the QIRC's finding, there must be a statutorily provided avenue of appeal. The court noted that in the absence of any statutory provision, the supervisory jurisdiction rested with the Supreme Court of Queensland rather than individual judges sitting in some other court. The court had to determine if the appeal was competent under s 557 of the Industrial Relations Act 2016.

After considering the arguments and written submissions from both parties, the court concluded that the appeal was competent. The court found that s 557 of the Industrial Relations Act 2016 authorised the appeal, and thus the Industrial Court had jurisdiction to hear the appeal. The court emphasised that the appeal was not only competent but also valid under the relevant statutory provisions. Consequently, the court proceeded to hear the appeal on its merits.

The court did not make any final orders in this ruling, as the competency of the appeal was the primary issue addressed. The substantive hearing of the appeal was adjourned to allow the appellant to pursue any available avenues of appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is expressed to be “an application to appeal to the Industrial Court of Queensland against a decision of the … Commission … given on 17 February 2021”.[1] That is a reference to the finding made by the Industrial Commissioner. The grounds of appeal were stated as:“That the Commission erred in law, in:-1.determining date of injury as a single issue preliminary to judgement in the matter;2.determining a single date of injury when there was uncontroverted evidence establishing injury sustained over a period of time; and3.failing to take into account, or properly take into account, evidence relating to the further period (after the single date of injury defined in the order) over which the injury was sustained.”[1]Emphasis added. Ground 1 is curious given that making a separate determination was exactly what the Industrial Commissioner was asked to do. On 12 April 2021, the appeal came before me. In the course of hearing full argument on the appeal, I raised the question as to whether the appeal was competent. Mr O’Neill of Counsel for the Regulator then submitted that it wasn’t. He submitted that as the QIRC had not finally determined the appeal from the Regulator, there was no decision which could be the subject of appeal to this Court. Mr Stobie submitted that s 557 of the Industrial Relations Act 2016 (the IR Act) authorised the appeal. It was obvious that Mr Stobie was taken by surprise by the suggestion that the appeal was incompetent and I gave the parties leave to file and exchange further written submissions on the issue. Further submissions were produced and this is my ruling on the competency of the appeal.Basic principles For this Court to have jurisdiction to hear and determine an appeal from the QIRC’s finding, there must be a statutorily provided avenue of appeal.[2][2]See cases such as Henderson v Taylor [2007] 2 Qd R 269, R v Long (No 1) [2002] 1 Qd R 662 and Du Preez v Chelden [2020] ICQ 008. Given Australia’s constitutional arrangements, decisions of inferior courts (such as the QIRC) must be amenable to review, at least where they have acted beyond jurisdiction.[3] In the absence of any avenue of appeal provided by statute, that review is conducted pursuant to the inherent supervisory powers possessed by the superior court of the relevant jurisdiction.[4][3]Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.[4]Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 at 200, Rozenes QC and Director of Public Prosecutions (DPP) (Vic) v Beljaje, Szajntop, Kunz, Lambert and Judge Kelly [1995] 1 VLR 533 at 571, R v Long (No 1) [2002] 1 Qd R 662 at [53] and Sankey v Whitlam (1978) 142 CLR 1 at 23. This Court is a superior court of record whose President is a judge of the Supreme Court of Queensland.[5] However, in the absence of some relevant statutory provision, the supervisory jurisdiction rests with the Supreme Court of Queensland, not in individual judges sitting in some other court.[6][5]Industrial Relations Act 2016, ss 407 and 413.[6]Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [64]-[67].

Ratio Decidendi

Legal Principle Established

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CITATION:	Tuesley v Workers’ Compensation Regulator [2021] ICQ 008
PARTIES:	MAUREEN TUESLEY (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent)
FILE NO/S:	C/2021/04
PROCEEDING:	Appeal
DELIVERED ON:	9 June 2021
HEARING DATE:	12 April 2021
MEMBER:	Davis J, President
ORDER/S:	1. The appeal is struck out. 2. The matter is returned to Industrial Commissioner Hartigan to complete the hearing of the appeal from the decision of the Regulator. 3. By 4.00 pm on 23 June 2021, the parties exchange submissions on costs. 4. By 4.00 pm on 30 June 2021, the parties exchange reply submissions on costs and state in the reply submissions whether they wish to make oral submissions on the question of costs. 5. In the absence of an indication by any party of the wish to make oral submissions on costs, the costs will be determined on the written submissions and without oral hearing.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant made a claim for compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (the WCR Act) – where the claim was rejected by WorkCover – where the appellant sought review of that decision by the Workers’ Compensation Regulator (the Regulator) – where the Regulator rejected the review – where the appellant appealed the decision of the Regulator to the Queensland Industrial Relations Commission (QIRC) – where, during the hearing before the Industrial Commissioner, a question arose as to the date the injury was suffered by the appellant – where, by consent, the Industrial Commissioner determined that issue during the hearing but before finally determining the appeal – where the Industrial Commissioner determined the date of injury to be 14 May 2021 – where the appellant appealed that decision – where the Regulator did not oppose the appeal – where the substantive hearing was adjourned to allow the appellant an opportunity to pursue any available avenues of appeal – where, during the hearing of the appeal in the Industrial Court of Queensland, the competency of the appeal arose as an issue – where Counsel for the Regulator submitted the appeal was not competent on the basis that the appeal had not been finally determined and therefore, there was no final appealable decision – where Counsel for the appellant submitted that the appeal was competent pursuant to s 557 of the Industrial Relations Act 2016 (the IR Act) – whether there is a statutorily provided avenue of appeal – whether the appeal is competent Acts Interpretation Act 1954 Industrial Relations Act 1999 Industrial Relations Act 2016, s 407, s 413, s 424, s 557, s 561 Industrial Relations (Tribunals) Rules 2011 Justices Act 1886 s 4 Uniform Civil Procedure Rules 199,9 ch 7, ch 9 Workers’ Compensation and Rehabilitation Act 2003, s 32, s 164, s 540, s 541, s 542, s 543, s 544, s 545, s 546, s 546A, s 548, s 549, s 553, s 554, s 558, s 560A,…