Tuesley v Workers' Compensation Regulator - [2021] QIRC 35

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Tuesley v Workers' Compensation Regulator [2021]

QIRC 035

PARTIES:

Tuesley, Maureen

(Appellant)

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/50

PROCEEDING:

Appeal

against

decision

the

Workers'

Compensation Regulator

DELIVERED ON:

01 February 2021

HEARD AT:

Brisbane

HEARING DATES:

On the papers

SUBMISSIONS:

Appellant's submissions: 02 November 2020

Respondent's submissions: 05 November 2020

MEMBER:

Hartigan IC

ORDER:

The application is dismissed.

WORKERS'

COMPENSATION

–

APPEAL

CATCHWORDS:

AGAINST DECISION – where the appellant became distressed during cross-examination – where the matter adjourned on a date to fixed – where the matter adjourned for two years – where the matter is re-

allocated – whether the matter is to be heard afresh

LEGISLATION:

Industrial Relations Act 2016, s 438

Supreme Court Act 1991, s 47

CASES:

Fox v Percy (2003) 214 CLR 118

Luitaovshu Yao Lee [1950] VLR 488

(b) a different member or different members.

(2) The commission to which the matter is reallocated may continue to hear and decide
the matter, without re-hearing evidence given before the reallocation.

The appellant submits that s 438 of the IR Act does not accord with legislation applying to state and other courts and, by way of an example, refers to s 47 of the Supreme Court Act 1991. The appellant submits that s 47 of the Supreme Court Act 1991 provides no discretion to proceed on the basis of evidence already heard, with the only two express options being where a judge becomes unavailable are to either adjourn until that judge is available, or, to start the matter afresh before another judge.
The appellant submits that the reading of s 47 of the Supreme Court Act 1991[1] suggests a less flexible approach should be taken when exercising the relevant discretion. The appellant submits that the discretion created by s 438 of the IR Act should be approached with caution and "obviously always in the interests of justice".
[1] Together with decisions dealing with other legislation including Luitaovshu Yao Lee [1950] VLR 488.
The Regulator submits that no weight should be given to the appellant's submission that the discretion created by s 438 of the IR Act should be approached with caution. The Regulator submits that if the legislature had any concern with respect to the operation of s 438 of the IR Act, then it has had three opportunities in 1996, 1999 and 2016 to amend that provision to reflect the provision contained in s 47 of the Supreme Court Act 1991. No such amendment was made.
Further, the Regulator submits that, in any event, the appellant's submission that s 47 of the Supreme Court Act 1991 only provides two express options when a judge becomes available is not correct when the entirety of the provision is considered. Relevantly, it was submitted that s 47(4)(b)(i) provides that an order may be made that the proceeding be heard and determined afresh. Section 47(4)(b)(ii) provides a broad discretion for the Court to make any other order…

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] QIRC 35
Case: [2021] QIRC 35
Decision Date: 1 February 2021

CaseChat Overview and Summary

The case of Tuesley v Workers' Compensation Regulator involves an appeal against the decision of the Victorian Civil and Administrative Tribunal (VCAT) to deny the appellant's request for a re-hearing of her evidence in a workers' compensation claim. The appellant had previously become distressed during cross-examination and sought a re-hearing of her evidence, arguing that the significant time elapsed since the initial hearing would affect her recollection and the quality of her evidence.

The key legal issue before the court was whether VCAT should exercise its discretion to allow a re-hearing of the appellant's evidence in chief, given that it had already been given and was available in written and recorded form. The court had to consider the practical implications of such a re-hearing, the potential impact of the appellant's distress during the original cross-examination, and the appellant's submission that she might not recall her previous testimony due to the lengthy time elapsed.

The court determined that the appellant's application was not supported by any specific information indicating she would be unable to recall her evidence. The court found that the appellant's distress during the original cross-examination was not a sufficient ground for a re-hearing, as VCAT would have the opportunity to review the recorded and written evidence, and assess the appellant's demeanour during the cross-examination. The court further noted that while the two-year delay might require some prompts during cross-examination, it was not a compelling reason to allow a re-hearing. The court concluded that a re-hearing would not provide VCAT with a better opportunity to assess the appellant's credibility and dismissed the application.

The final order was that the appellant's application for a re-hearing of her evidence was dismissed.

Orders

Orders of the court

The application 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 submits that it is somewhat difficult to avoid the inference that what is actually being sought by the appellant is a forensic advantage, by allowing the appellant a second chance of providing her evidence because the appellant has concerns regarding the quality of her evidence. Consideration In support of her application for a re-hearing of her evidence, the appellant relies on the following two grounds: At the outset I note there is no suggestion by the appellant, following the adjournment of the matter, that she wishes to adduce new or fresh evidence at the recommencement of the hearing.[9] [9] At least in respect of the appellant's own evidence. Accordingly, the practical effect of the application made by the appellant is that she seeks to have a further opportunity to give her evidence in chief in circumstances where her evidence in chief has already been given in the proceeding. Other than the very broad submission that a re-hearing of the evidence would provide the Commission with a "better opportunity" to assess the appellant's evidence, in circumstances where credit is in issue, no specific submissions and/or any other further information in support was provided to supplement that submission. This application is made in circumstances where the evidence in chief provided by the appellant was recorded and the Commission will have an opportunity to not only peruse the written transcript of her evidence in chief, but also, to avail itself of a recording of the evidence if that is necessary. I accept the Regulator's submissions that there is a growing body of research that casts doubts on a judge's ability to make credibility findings based on demeanour alone.[10] However, in any event, the Commission will have an opportunity to assess[11] the demeanour of the appellant whilst she is being cross-examined by the Regulator.[12] [10] See also Fox v Percy (2003) 214 CLR 118 at [31]. [11] To the extent that such assessment is either relevant and/or necessary. [12] Although it is noted that such demeanour may be of limited assistance in determining credibility. Having regard to these matters, I do not consider that the discretion should be exercised to re-hear the evidence of the appellant on the basis that it would afford the Commission with a greater opportunity to assess the appellant's credibility. The appellant's recollection of her evidence in chief It is further submitted on behalf of the appellant that "the appellant is unlikely to have any recollection of what specifically she said in evidence in chief at the initial hearing". Other than referring to the length of time since the appellant gave evidence, there is no factual or other information relied on by the appellant to support the submission that she is unlikely to recall the evidence she has given. Whilst I accept that the intervening period of two years is lengthy, and that the Regulator may need to engage in appropriate prompts when cross-examining the appellant in the order of fairness, that in and of itself does not support the exercise of the discretion in the circumstances.