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)
v
Workers' Compensation Regulator
(Respondent)
CASE NO:	WC/2018/50
PROCEEDING:	Appeal  against decision of 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.

1. 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.

2. 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.

3. 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.

4. 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 it considers appropriate. The Regulator submits accordingly that there is no reason why such an order could not include that the hearing continue before another judge.

5. Section 438(2) of the IR Act permits the Commission to exercise its discretion to continue and decide a reallocated matter without re-hearing evidence given in the matter before the reallocation.

6. I accept the appellant's submission that s 438 of the IR Act does not accord with other legislation applying to state and other courts including s 47 of the Supreme Court Act 1991. Given that the terms of s 47 of the Supreme Court Act 1991 do not accord with s 438 of the IR Act, I consider the appellant's reliance on that provision[2] in support of its submission that the Commission should exercise the discretion created by s 438 of the IR Act with caution to be of limited relevance.

   [2] Together with the decision of Lui Taovshu Yao Lee [1950] VLR 48.

7. The relevant consideration when determining to exercise a discretionary power is that it be exercised reasonably.[3]

   [3] Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, Brennan CJ.

   The submissions of the parties

8. At the outset, the appellant acknowledges that if the matter continues without re-hearing the appellant's evidence, there will be an undoubted saving of time. However, the appellant submits that such a saving might not be significant in the context of a hearing which is now set for five days given the Appellant's evidence initially ran for two hours and 12 minutes.

9. In support of her application for directions, the appellant submits that the re-hearing of the evidence will place the Commission in a better position to assess the appellant's evidence. It is submitted that the proceedings will involve matters of credit and the assessment of the appellant's credit will consequently be important. In this regard, it is submitted that the Commission would ordinarily have the advantage of hearing evidence in chief, and then be in a position to contrast the approach and demeanour of the witness under cross-examination.

[17]   In addition to this, the appellant submits that at the continuation of the hearing, the appellant is unlikely to have any recollection of what specifically she said in evidence in chief at the initial hearing which will then be almost exactly two years earlier. It is submitted that this is likely to make cross-examination a frustrating and ineffective exercise. Relevantly, the appellant submits, the significance of this consideration is illustrated by the circumstances which prompted the adjournment in the first place, when during the course of cross-examination, the appellant seemed vague and mentally absent. It was when the appellant specifically failed to recall her answers in evidence in chief from earlier that morning, that the Regulator's counsel suggested there was a problem in continuing with the cross-examination.[4]

[4] T161/1-66.

1. The Regulator submits, in response to the appellant's submission that the Commission will have a better opportunity to assess her credibility by observing her evidence in chief, that such a submission ignores the fact that the Commission will have ample opportunity to assess the appellant's credibility during what is likely to be an extensive cross- examination. The Regulator further contends that the Commission is more likely to derive whatever limited assistance there is in determining credibility, by observing the appellant's "metal being tested" in cross-examination.

2. Further, the Regulator submits, that the Commission, in determining the matter, will have the benefit of the transcript which accurately sets out the appellant's evidence and together with access to the audio tapes of the appellant's evidence if that should become necessary.

3. The Regulator submits that the only thing the Commission will lack is the observation of the appellant giving her evidence in chief in person.

[21]   The Regulator further submits that this small loss does not in any way justify re- commencing the hearing afresh for the following reasons;

(a)	the High Court recognised in Fox v Percy[5], that there is a growing body of research that casts doubt on the ability of Judges to make accurate credibility findings based on demeanour;
(b)	research[6] includes a recognition that there is no evidence that liars look away, fidget, speak in a higher pitch or are more likely to be nervous;
(c)	research[7] indicating that a person's ability to discern when a person is lying functions only slightly better than random chance; and
(d)	psychological research[8] into the capacity of witnesses to remember events, their capacity for remembering details and human fallibility of observation and memory which may be relevant when assessing a witness's credit on the back of lack of memory or inconsistent recollections.

[5] (2003) 214 CLR 118.

[6] A Vrj, Detecting lies and Deceit: Pitfalls and Opportunities (2nd ed, John Wiley and Sons Ltd, England, 2008);

[7] S.I Friedland, On Common Sense and the Evaluation of Witness Credibility (1990) 40 Case W Res L Rev 165;

[8] Justice S Glazebrook, Assessing Witnesses: Can the Skills be Taught, presentation at Judicial College of

1. The Regulator submits that in light of the fact that the Commission will have the benefit of observing the appellant's evidence during cross-examination, that the Commission not observing the appellant's evidence in chief does not justify re-commencing the hearing.

[23]   In response to the appellant's submission that the appellant may have difficulty in recalling the evidence she has given, the Regulator submits this is not an uncommon occurrence in the Commission where hearings are not able to be completed within the allotted time frame that they be adjourned sometimes for many months.

1. The Regulator contends that it holds no concern about its' ability to effectively cross- examine the appellant and consequently there is no justification for the recommencement of the hearing.

2. Further, the Regulator submits that much of the substantial delay between the hearing being adjourned on 18 February 2019 and when the hearing is to recommence on 15 February 2021, is attributable to if the Appellant or her legal representatives.

3. 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

4. In support of her application for a re-hearing of her evidence, the appellant relies on the following two grounds:

(a)	a re-commencement of the hearing will provide the Commission with an opportunity to assess the appellant's credibility; and
(b)	the appellant is unlikely to have any recollection of what she said in her evidence in chief in February 2019.

Opportunity to assess credibility

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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

7. 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".

8. 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.

9. 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.

10. Relevantly, the Regulator does not raise any concern about its ability to effectively cross- examine the appellant at the recommenced hearing.

[38]   In addition to the submissions made, there may be some benefit in the appellant's evidence in chief having been taken two years earlier as, on one view, it may be less affected by the effluxion of time.

1. For the forgoing reason, I dismiss the Application for Directions in this matter. Pursuant to s 438(2) of the IR Act, I have determined that I will hear and decide the re-allocated matter without re-hearing the evidence in chief of the appellant given before the re- allocation.

   Order

2. I make the following order:

   The application is dismissed.

Reasons for Decision

Introduction

1. The appellant applies for directions that:

   (a) the appellant's evidence in chief be re-heard at the resumption of the matter; and

(b) the appellant's evidence given in chief and under cross-examination on 18 February 2019 not be evidence in the proceeding unless subsequently tendered by either party and admitted into evidence by the Commission.

1. The hearing of this matter commenced on 18 February 2019 before Deputy President Bloomfield. On that day, the appellant gave evidence in chief and had commenced being cross-examined by the Regulator when she became distressed and was unable to continue with her evidence.

2. The matter was adjourned to a date to be fixed.

3. In the intervening period, Deputy President Bloomfield has retired from the Commission.

4. The resumption of the hearing has now been reallocated before me to commence on 15 February 2021.

5. The Regulator objects to the appellant's application. The Regulator's position is that the hearing that commenced before Deputy President Bloomfield has simply been adjourned and, pursuant to s 438 of the Industrial Relations Act 2016 ("IR Act"), the matter has been re-allocated to a different member of the Commission for the continuation of the hearing.

   Relevant legislative provisions

6. Section 438 of the IR Act provides for the reallocation of the Commission's work in the following terms:

   438              Reallocation of commission's work

   (1) The president may reallocate the matter of proceedings before a commission

   constituted by 1 or more of the members to a commission constituted by—

(a) the same member or members together with another member or other members; or

P Ekman & M O'Sullivan, Who can catch a liar? American Psychologist 46, 913-920; M Green, Credibility
contests: the elephant in the room (2014) 18(1) International journal of Evidence and Proof, 28-40).

C.F. Bond & B.M. DePaulo, Accuracy of Deception Judgements (2006) 10 Personality and Social Psychology
Review 214).

Victoria, Assessing Witnesses, 10 August 2012.