Woolworths Ltd v Dinca & Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 5
•16 January 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: Woolworths Ltd v Dinca & Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 005
| PARTIES: | Woolworths Ltd |
| (applicant) | |
| v | |
| Dinca, Mariana | |
| (first respondent) | |
| Simon Blackwood (Workers’ Compensation | |
| Regulator) | |
| (second respondent) |
CASE NO: WC/2013/421 PROCEEDING: Application for leave to appear and be heard DELIVERED ON: 16 January 2014 HEARING DATE: 14 January 2014 MEMBER: Deputy President O‘Connor ORDERS: 1. The employer is granted leave to be heard
at the hearing of Dinca v Simon Blackwood
(Workers’ Compensation Regulator) (WC/2013/233);
2. The employer is to provide to the appellant and the Regulator a list of all documents in its possession relevant to this matter together with copes of all documents it intends to adduce at the hearing by 4:00pm on 20 January 2014;
3. The appellant and the Regulator are to exchange copies of all documents required pursuant to s 554 of the WCR Act (if they have not already done so) and supply a copy of those documents to the employer by 4:00pm on 21 January 2014;
4. The employer is to supply to the appellant and the Regulator all documents it seeks to adduce as evidence at the hearing pursuant to s 554 of the WCR Act by 4:00pm on 21 January 2014;
5. The employer is at liberty to:
(i) issue notices of attendance to give evidence, notices to produce and notices to admit facts or documents pursuant to the
Industrial Relations (Tribunals)
Rules 2011;
(ii) make submissions and address the commission on issues of further conduct and carriage of the hearing of the appeal;
(iii) call evidence and cross-examine witnesses at the hearing of the appeal; and
(iv) make submissions and address the Commission on the evidence given at the hearing of the appeal and on matters of law;
6. Until further orders of the Commission, the employer is not at liberty to seek costs from the appellant at the completion of the hearing of the appeal; and
7. There be no order as to the costs of this
application.
CATCHWORDS: WORKERS‘ COMPENSATION – POWER TO GRANT LEAVE TO APPEAR AND BE HEARD – whether power resides in s 320(2) or s 329(b)(v) of the Industrial Relations Act 1999 –
whether power can be exercised in relation to workers‘ compensation proceedings in the Industrial Commission under the Workers’ Compensation and Rehabilitation Act 2003 CASES: Industrial Relations Act 1999, s 319, s 320, s
329, s 677Industrial Relations (Tribunals) Rules 2011 WorkCover Queensland Act 1996 (repealed), s
498Workers’ Compensation and Rehabilitation Act 2003, s 549, s 554 Buckley v Queensland Health (C/2010/13) -
Report on Decision < CJ Burland Pty Ltd v Metropolitan Meat Industry Board [1968] 12 RCLO 400 Frazer v Gardner (2001) 167 QGIG 911 Greyhound Australia Pty Ltd v Transport Workers Union of Australia [1987] 21 IR 288 Middleton v Teys Bros (Holdings) Pty Ltd (2001)
166 QGIG 138Newman v Department of Corrective Services (2005) 180 QGIG 1036 Queensland Health v Q-COMP (WC/2012/268) -
Decision <Queensland Nurses’ Union of Employees v Blue Care (2003) 175 QGIG 872 State of Queensland v Squires and WorkCover Queensland (2002) 170 QGIG 20 The Corporation of the Trustees of the Order of the Sisters of Mercy Queensland Inc v Karas
(2009) 192 QGIG 127 APPEARANCES: Mr S. P. Sapsford of Counsel, instructed by
McInnes Wilson Lawyers, for the applicant.Ms S. Anderson of Counsel, instructed by Shine
Lawyers, for the first respondent.Ms S. O‘Neill for the second respondent. [1] This is an application by Woolworths Limited (―the employer‖) seeking leave to
appear and be heard in Dinca v Simon Blackwood (Workers’ Compensation
Regulator) (WC/2013/233), being an appeal by Ms Mariana Dinca (―the appellant‖) against a decision of Simon Blackwood (Workers‘ Compensation Regulator) (―the
Regulator‖) to confirm an earlier decision by WOW Care (―the insurer‖) to reject
her application for workers‘ compensation.
Background
[2] The appellant was employed by the employer as a console operator at a petrol station in Southport.
[3] On 14 December 2012, the appellant lodged an application for workers‘
compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003
(―the WCR Act‖) for a physical knee injury described as ―knee pain‖ with the
employer‘s self-insurer, WOW Care.
[4] The appellant alleges that she suffered injuries to her right knee over a period of weeks prior to 11 June 2012 at which time she was employed by the employer.
[5] The claim was referred for determination and management for the purposes of the WRC Act to the insurer. The insurer made the following finding:
―Based on the above information, I am unable to substantiate that you have
sustained a work-related injury within the terms of section 32(1) of the Act.‖
[6] The insurer determined that the appellant did not suffer an injury for the purposes of s 32 of the WCR Act.
[7] On or about 15 May 2013, the appellant sought review of the insurer‘s decision by
the Regulator.
[8] On 21 June 2013 the Regulator review the insurer‘s decision and confirmed its
decision to reject the claim.
[9] On or about 12 July 2013, the appellant filed a notice of appeal against the decision of the Regulator and the appeal was listed for hearing before the Commission on 28 and 29 January 2014.
[10] Following the obtaining of a further medical report by the appellant from Dr Morgan, orthopaedic surgeon, the Regulator by email dated 5 December 2013
forwarded to the employer‘s insurer the following advice:
―I write to advise that after careful consideration of all the evidence, including
new evidence provided by Ms Dinca, it is my view that the prospects of defending the appeal lodged by her are now poor. Therefore, the Regulator
intends to change its position in relation to Ms Dinca‘s claim for workers‘
compensation and consider that her claim for a right knee injury should be one
for acceptance.‖
[11] The Regulator advised the Commission that the report of Dr Morgan was supplied to the employer on 5 December 2013.
[12] The employer sought legal advice and lodged this application on 17 December 2013.
Nature of Application
[13] The employer originally sought to rely on s 320(2) of the Industrial Relations Act
1999 (―the IR Act‖) and, in particular, relied upon the authority of Middleton v Teys
1
Bros (Holdings) Pty Ltd.
[14] During argument, Counsel for the employer sought, and was granted, leave to amend the application to include, in the alternative, an application pursuant to s 329(b)(v) of the IR Act.
[15] As a starting point, there is no express power contained within the WCR Act to grant the application sought and the employer must therefore rely upon either s 320(2) or s 329(b)(v) of the IR Act to obtain the relief sought.
[16] It is the accepted approach in the Commission to bring an application for leave to be heard under s 320(2) of the IR Act. I must indicate at the outset that I harbour significant doubt as to the applicability of s 320(2) of the IR Act to proceedings in the Commission under the WCR Act.
[17] In Frazer v Gardner,[2] his Honour President Hall wrote:
―It is difficult to treat the reference to ―proceedings‖ in s 320(2) as referring to
anything other than proceedings under the Industrial Relations Act 1999. Given
that the immediately preceding section, viz s 319, defines ―proceedings‖ to mean ―proceedings under this Act or any other Act being conducted by the court, the commission, an Industrial Magistrates Court or the Registrar‖ and that the
definition is not repeated at s 320, one would have thought that a different
meaning was intended.‖[3]
[2] (2001) 167 QGIG 911.[3] Ibid, 912.
[18] Frazer v Gardner is specific authority for the proposition that ―proceedings‖ as used in s 320(2) of the IR Act relates to ―proceedings‖ under the IR Act. It follows that ―proceedings‖ under the WCR Act would thereby be excluded.
[19] In The Corporation of the Trustees of the Order of the Sisters of Mercy Queensland
4
Inc v Karas, his Honour President Hall wrote: ―For completeness, I should add that each of the decisions of this Court supporting the proposition that an Industrial Magistrate may grant an employer leave to be heard viz, Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG [138] and State of Queensland v Squires and WorkCover Queensland (2002) 170 QGIG 20, were decided on an early version of the WorkCover Queensland Act 1996. It may be doubted whether grant of such leave is consistent
with s 449 of the Workers’ Compensation Act 2003 [sic].‖[5]
[5] Ibid.
[20] In Karas, Hall P appeared to recognise that the relevant provisions of the
WorkCover Queensland Act 1996 (―the 1996 Act‖) – in particular, s 498 – were
vastly different to s 549 of the 2003 WCR Act. Significantly, there was no
counterpart to s 549(4) of the 2003 WCR Act in the 1996 Act.[21] Section 549 of the WCR Act relevantly provides as follows:
―549 Who may appeal
(1) A claimant, worker or employer aggrieved by the decision (the
appellant) may appeal to an appeal body against the decision of the
Regulator or the insurer (the respondent).(2) An insurer aggrieved by a decision of the Regulator to confirm, vary
or set aside a decision of the insurer mentioned in section 540(1)(a)(i)
to (vi) may appeal to an appeal body against the decision of the
Regulator.(3) If the appellant is an employer—
(a) the claimant or worker may, if the claimant or worker wishes, be a party to the appeal; and (b) an insurer may, if the insurer wishes, be a party to the appeal if the appeal is against a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi). (4) If the appellant is WorkCover, an employer may, if the employer wishes, be a party to the appeal.‖
[22] In Queensland Health v Q-COMP,[6] an argument was agitated before his Honour Deputy President Bloomfield that s 549 of the WCR Act could be interpreted to exclude s 320(2) of the IR Act. The argument relied on the rule of statutory interpretation, expressio unius est exclusion alterius, also known as expressum facit cessare tacitum, which states that an express reference to one matter indicates that other matters are excluded. Section 549 of the WCR Act contains no express provision enabling an employer to become a party to the appeal if a worker is the
appellant. As Deputy President Bloomfield observed, ―If there was no specific
power granted to the Commission to allow a particular entity to appear as a party, the Commission could not draw on other perceived powers to override the
provision.‖[7]
[6] Queensland Health v Q-COMP (WC/2012/268) - Decision <[7] Ibid [14], citing CJ Burland Pty Ltd v Metropolitan Meat Industry Board [1968] 12 RCLO 400, 407 and[23] To complicate the jurisprudence on this issue, Hall P in Buckley v Queensland
8
Health seemed to resile from the position he had earlier taken in Karas to conclude: ―I affirm that on the current state of the authorities, the status quo position is that
s 320 of the Industrial Relations Act 1999 does vest the Queensland Industrial Relations Commission (the Commission) and an Industrial Magistrate with the authority to grant interested parties leave to be heard (as a matter of discretion) and subject to such discretions as the Commission or Industrial Magistrate thinks
fit.‖[9]
[9] Ibid.
[24] In Industrial Law Queensland, the learned author writes:
―Section 677 cannot be used to support s 320(2) of the Industrial Relations Act
1999 in the Commission because of the final words of s 677 which say ―unless the contrary intention appears‖. Having regard to the decision in Frazer v
Gardner, the contrary intention does appear, namely that that subsection only refers to proceedings under the Industrial Relations Act 1999. The reason why s 329(b)(v) was not used in Middleton v Teys Brothers, (Holdings) Pty Ltd, was because hat section does not apply to proceedings before industrial magistrates.
Therefore, in Middleton’s case and subsequent cases involving industrial
magistrates, s 320(2) was the only section available. However, reasoning applicable to proceedings before industrial magistrates should not be imported
into proceedings before the Commission.‖[10]
[10] K. F. Watson, LexisNexis Butterworths, Industrial Law Queensland, vol 1 (at Service 80) [71,045].
[25] I respectfully agree with the learned author and, for the reasons advanced above, I do not propose to deal with this application in accordance with s 320(2) of the IR Act but the alternate provision contained in s 329(b)(v).
Conclusions
[26] The general proposition is that a right to be heard pursuant to s 329(b)(v) of the IR
11
Act is to be exercised in favour of a person whose interest will be directly affected.
[27] The power vested by s 329(b)(v) of the IR Act is discretionary.12 The Commission has the discretion to determine whether leave to be heard should be granted and, if
so, on what conditions. Section 329(b) distinguishes between ―parties to the
proceedings‖ and persons who, as a matter of discretion, ―may be heard‖.[28] Having considered the submissions of the parties, I have formed the view that this is an appropriate matter in which the Commission should exercise its discretion to grant leave to be heard.
[29] I exercise my discretion to grant leave for the following reasons:
(i) The employer is a self-insurer and I accept that the employer‘s pecuniary
interests will be directly affected if the appellant succeeds with her appeal;
(ii) If successful on appeal, the appellant will have an ―entitlement‖ such that
she will be able to pursue damages at common law, with the direct
consequence that the employer‘s provisioning for workers‘ compensation
will be affected;
(iii) Whilst noting the submission of the appellant that the employer could have taken steps at an earlier stage to make an application to be heard, I do not consider that there has been any undue delay by the employer in bringing this application;
(iv) The employer was entitled to rely on the decisions of its insurer and the
Regulator to reject the appellant‘s claim. However, the complexion changed
for the employer with the production of the new medical report of Dr Morgan and the indication from the Regulator that it had changed its
position in relation to the appellant‘s claim. In those circumstances, it is not
unreasonable for the employer to take steps to protect its interests;
(v) I accept the employer‘s submission that it has direct knowledge of the
circumstances surrounding the alleged injury and, in particular, the physical layout of the workplace. It therefore follows that the evidence to be adduced by the employer will be of assistance to the Commission in the determination of the issues before it;
(vi) The employer has indicated that it does not wish to disturb the hearing set down for 28 and 29 January 2013 and there is a degree of confidence that the matter can be dealt with in the time allocated; and
(vii) The Regulator does not oppose the application.
Orders
[30] For the reasons set out above, I make the following orders:
1. The employer is granted leave to be heard at the hearing of Dinca v Simon
Blackwood (Workers’ Compensation Regulator) (WC/2013/233);
2. The employer is to provide to the appellant and the Regulator a list of all documents in its possession relevant to this matter together with copes of all documents it intends to adduce at the hearing by 4:00pm on 20 January 2014;
3. The appellant and the Regulator are to exchange copies of all documents required pursuant to s 554 of the WCR Act (if they have not already done so) and supply a copy of those documents to the employer by 4:00pm on 21 January 2014;
12 Queensland Nurses’ Union of Employees v Blue Care (2003) 175 QGIG 872.
4. The employer is to supply to the appellant and the Regulator all documents it seeks to adduce as evidence at the hearing pursuant to s 554 of the WCR Act by 4:00pm on 21 January 2014;
5. The employer is at liberty to:
(i) issue notices of attendance to give evidence, notices to produce and notices to admit facts or documents pursuant to the Industrial Relations (Tribunals) Rules 2011;
(ii) make submissions and address the commission on issues of further conduct and carriage of the hearing of the appeal;
(iii) call evidence and cross-examine witnesses at the hearing of the
appeal; and
(iv) make submissions and address the Commission on the evidence
given at the hearing of the appeal and on matters of law;
6. Until further orders of the Commission, the employer is not at liberty to seek costs from the appellant at the completion of the hearing of the appeal; and
7. There be no order as to the costs of this application.
1 (2001) 166 QGIG 138.
4 (2009) 192 QGIG 127 (‗Karas‘).
Greyhound Australia Pty Ltd v Transport Workers Union of Australia [1987] 21 IR 288.
8 Buckley v Queensland Health (C/2010/13) – Report on Decision <
11 Newman v Department of Corrective Services (2005) 180 QGIG 1036, 1037.
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