Workers' Compensation Regulator v JBS Australia Pty Limited
[2017] QIRC 11
•3 March 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Workers' Compensation Regulator v JBS Australia Pty Limited [2017] QIRC 11 |
PARTIES: | Workers' Compensation Regulator v JBS Australia Pty Limited |
CASE NO: | WC/2016/176 |
PROCEEDING: | Application for Decision Not to Issue until Interlocutory Appeal Concludes |
DELIVERED ON: | 3 March 2017 |
HEARING DATES: | 15 February 2017 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDERS: | 1. Application dismissed 2. Matter of costs reserved |
| CATCHWORDS: | WORKERS' COMPENSATION – APPLICATION FOR DECISION NOT TO BE ISSUED - Where the decision of the review unit of the workers' compensation regulator had been appealed and stayed; where the regulator had lodged an appeal against the decision to stay; where the hearing of the substantive appeal had concluded; where the regulator seeks that the decision in the substantive appeal not be issued until the decision in the interlocutory appeal has been issued. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 549, Industrial Relations Act 1999. |
| APPEARANCES: | Mr PB O'Neill, Counsel, instructed by the Workers' Compensation Regulator, the Applicant. |
Decision
Background
On 6 February 2017 the regulator, by application, sought that the appeal in matter WC/2016/176 be placed in abeyance pending the outcome of an appeal which it had lodged on 3 January 2017 against a decision issued on 7 December 2016 to grant a stay of a review unit decision dated 15 September 2016. This application was subsequently amended to clarify that the effect of the relief sought was to delay the issuing of any decision in WC/206/176 pending the determination of the appeal against the stay decision of 7 December 2016.
The application for stay was heard by the Commission as currently constituted on 11 November 2016 and a decision granting a stay was released on 7 December 2016. My conclusion in that decision relied in part on an expectation that the substantive appeal could be determined expeditiously:
"In circumstances where the appeal is to be heard at the end of January 2017 and a decision might be expected to issue at the end of March 2017, I have concluded that the balance of convenience considerations favour the grant of the stay application."
On 18 November 2016 the substantive appeal was listed for hearing on 23, 24, and 25 January 2017. On 3 January 2017, the regulator appealed the stay decision to a Full Bench. Despite the lodgment of the appeal against the stay order, no application was made to delay the hearing of the substantive appeal scheduled to commence on 23 January 2017.
The substantive hearing concluded on 25 January 2017 and the decision in the matter was reserved. It is this decision that the regulator does not want released until such time as the Full Bench appeal has been heard and decided.
Grounds for Application
In its amended application the regulator listed three supporting grounds:
(i)The question of whether the application for stay was correctly decided constitutes a right which requires determination before the conclusion of the substantive matter;
(ii)If the appeal against the stay decision is not heard and determined prior to the conclusion of the substantive appeal, the stay decision may become a valid legal basis for interpretation of the statutory scheme and future stay applications made under the Workers' Compensation and Rehabilitation Act 2003. The decision therefore would form a precedent which fundamentally changed the way stay applications were to be determined under the legislation;
(iii)The state of the law in workers' compensation proceedings relating to applications for stay orders is unsettled and would benefit from clarification. In these circumstances it is in the public interest for the Full Bench appeal to be heard and determined.
Regulator's Submission
The regulator articulated a concern that the progression of its appeal to the Full Bench against the stay decision dated 7 December 2016 may be complicated should a decision in the substantive appeal be released first. The release of the substantive appeal decision before the commencement of the Full Bench proceedings might raise questions about the necessity for the Full Bench proceedings or alternatively result in a reduction in the number of issues to be canvassed. Either of these outcomes had the potential to leave important public interest considerations unresolved.
The regulator submitted that the public interest considerations were fundamental to the establishment of clear principles guiding the determination of stay applications in the workers' compensation jurisdiction, including principles guiding the exercise of any discretion. It was important that competing views be tried before the Full Bench to enable the enunciation by the Full Bench of the relevant principles. This development was said to be desirable because of a paucity of authority on the issue of stay orders in the workers' compensation jurisdiction, and because of a level of conflict in the authority that does exist.
The regulator pointed out that it was not part of the subject application that the stay decision be varied or revoked. Consequently it argued that JBS would not be prejudiced by any decision to defer the release of the substantive decision.
While the regulator acknowledged that one decision by a single member was not binding, they envisaged a situation where, over time, a number of other decisions might emerge which were supportive of each other, and if so, these decisions could amount to a persuasive body of authority that other members would be inclined to follow.
JBS's Submissions
JBS took issue with the regulator's submission that the law was unsettled in the key areas relevant to the award of stays. It was JBS's view that this position contradicted the position adopted by the regulator in the stay proceedings. In those proceedings the regulator in effect acknowledged that the law was settled by accepting that the power to grant a stay resided in s 274 of the Industrial Relations Act 1999 and accepting the well-established authority of the decision in Alexander v Cambridge Credit Corporation Ltd[1] in terms of the exercise of discretion.
[1] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685.
It was JBS's submission that the only area of the law that was not settled arose from the regulator's submission in the stay proceedings to the effect that an employer who was also a self-insurer did not have the standing to bring an application for stay. In this context, JBS maintained that the regulator was using the Full Bench appeal as a vehicle to secure an advisory opinion around the issue of standing. In this regard JBS said that the courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions.
JBS also submitted that the regulator was acting in a contradictory manner in that while it opposed the stay application on the basis of a detriment likely to be caused to the injured worker, it now argues for a process which must, if successful, cause a detriment to the worker. In this regard JBS advanced the view that the extent of any delay resulting from grant of the current application could be substantial. While the regulator was optimistic in suggesting that the Full Bench appeal would be resolved in the near future, JBS said that it was unlikely to be decided before the end of the financial year.
JBS challenged the regulator's submission that the decision to grant a stay might constitute a precedent. JBS submitted that the decision could not constitute a precedent because the decision is not binding on any other member of the Commission.
JBS submitted that in seeking to delay the final determination of the substantive appeal, the regulator was acting contrary to the object of the judicial process which was to secure the final determination of the rights of the parties to an action. The public interest would be best served in facilitating the finality of the litigation before the Commission.
The argument advanced was that the just, expeditious and cost effective manner of disposing of the litigation is to be achieved by bringing down a decision on the merits of the substantive matter at the earliest opportunity.
Reasoning
I prefer the submissions of JBS. While I sympathise with the regulator's predicament and understand the importance from their perspective in ensuring that all the relevant issues are able to be tried before the Full Bench, ultimately it will be a matter for the Full Bench to determine whether leave to appeal is granted, and on what terms.
Further, there is also a public interest to be served in the expeditious resolution of the substantive appeal. While the regulator argued that the interests of JBS would not be prejudiced by the course of action that it proposed, in that the stay would remain in place, I nevertheless accept that JBS is entitled to have its appeal heard and determined in a timely fashion.
It is also relevant that a detriment might be likely to be caused to the injured worker should the decision in the substantive appeal be delayed. If the appeal were dismissed, the worker's access to weekly payments and to reimbursement of medical expenses could be significantly delayed.
In the end result, to the extent that there is to be a weighing of competing interests, I believe the interests that benefit from an expeditious resolution of the substantive appeal, are the interests that should prevail. The public interest considerations relied on by the regulator are predominantly matters to be agitated before the Full Bench.
I don’t accept that my decision to award a stay carries any binding authority and, in circumstances where the decision is subject to a Full Bench appeal, I doubt that the decision would carry the persuasive force suggested by the regulator.
The application is refused.
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