Yousif v Workers' Compensation Regulator

Case [2019] ICQ 10

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Yousif v Workers’ Compensation Regulator [2019] ICQ 10

PARTIES:

BELAL YOUSIF

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

C/2018/14

PROCEEDING:

Appeal

DELIVERED ON:

25 July 2019

HEARING DATE:

24 August 2018

MEMBER:

Martin J, President

ORDERS:

1.    The appeal is dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where a mention was conducted in preparation for an appeal hearing in the Queensland Industrial Relations Commission – where a representative of the employer of a number of proposed witnesses was given leave to object to Attendance Notices at that hearing – where, following the mention, the appellant made an application for the Deputy President to recuse himself from hearing the substantive appeal – where the Deputy President dismissed the application – whether the Deputy President erred

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where a mention was conducted in preparation for an appeal hearing in the Queensland Industrial Relations Commission – where a representative of the employer of a number of proposed witnesses was given leave to object to Attendance Notices at that hearing – where, following the mention, the appellant made an application for the Deputy President to recuse himself from hearing the substantive appeal – where the application was dismissed – where the appeal is entirely misconceived – whether the appellant should pay the respondent’s costs of the appeal

Industrial Relations Act 2016, s 531(3)

Workers’ Compensation and Rehabilitation Act 2003, s 563

CASES:

Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44, cited

Kanan v Australian Postal and Telecommunications Union [1992] FCA 366, applied

MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland (2000) 164 QGIG 370, cited

State of Queensland v Saville (2006) 181 QGIG 277, cited

Yousif v Workers’ Compensation Regulator [2017] ICQ 004, cited

APPEARANCES:

F Abdullah as agent for the appellant

S McLeod instructed by the Workers’ Compensation Regulator for the respondent

  1. Mr Yousif appeals against the decision[1] of O’Connor DP (as he then was) in which he dismissed an application that he recuse himself from the hearing of the substantive appeal.

  2. Mr Yousif claims to have suffered an injury in 2014 while employed at the University of Southern Queensland. In the proceedings so far, the issues to be considered in the Commission were confined by an order of Fisher C which provided that:

    “1. The appeal is to determine whether an injury, namely, an aggravation of a pre-existing psychiatric injury, which occurred on 11 November 2014 meets the requirements of s 32 of the Workers’ Compensation and Rehabilitation Act 2003.

    2.        The Public Interest Disclosure incident which occurred on 11 November 2014 and other ongoing issues that presented on that day fall within the scope of the appeal.

    3.        Whether or not a particular event that arose prior to the decompensation was…

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Yousif v Workers' Compensation Regulator [2019] ICQ 10
Case
[2019] ICQ 10
Decision Date

CaseChat Overview and Summary

The case of Yousif v Workers' Compensation Regulator involves an appeal to the Industrial Court of Queensland. The appellant sought to challenge the decision of the Queensland Industrial Relations Commission, specifically regarding the conduct of a mention held in preparation for an appeal hearing. The appellant had made an application for the Deputy President to recuse himself from hearing the substantive appeal, which was dismissed. The central issue before the court was whether the Deputy President had erred in his handling of the mention and whether there were grounds for his recusal.

The court examined several grounds of appeal, all of which were based on the appellant's misunderstanding of the nature and purpose of the mention. The court found that no orders were made limiting the duration of the appeal hearing or requiring the appellant to present evidence from a specific number of witnesses within a set time frame. The Deputy President's interventions were aimed at understanding the evidence and its relevance to the issues at hand. Furthermore, the court determined that the Deputy President did not err in allowing a representative of the University of Southern Queensland to object to Attendance Notices, as this did not affect the substantive rights of the appellant.

In conclusion, the court found that the appeal was entirely misconceived, stemming from the appellant's inadequate understanding of the Commission's processes. As the appeal lacked any reasonable prospect of success, the court dismissed it and ordered the appellant to pay the respondent's costs of the appeal in accordance with section 563 of the Workers’ Compensation and Rehabilitation Act 2013.

ORDERS:
1. The appeal is dismissed.
2. The appellant pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant has misunderstood the character of the proceedings. Had he been familiar with the conduct of matters in the Commission he would have known that if the proper conduct of the hearing required more time then that would have been granted.Ground 2 - The Deputy President erred in stating that there was an assumption on the part of the appellant that he had been prevented from calling evidence and that State of Queensland v Saville[4] was not applicable.[4] (2006) 181 QGIG 277. In the application for an order that the Deputy President recuse himself, grounds two, three and five were based on the unfounded assertion that the Deputy President had limited the length of the hearing of the appeal and was requiring the appellant to call evidence from seven witnesses in two days. This ground of appeal is based on the same misapprehension about the nature of the mention proceedings as has infected all of the argument of the appellant. No orders were made limiting the time for hearing or requiring the appellant to call evidence from seven witnesses in two days. The appellant simply misunderstands what occurred when the Deputy President was exploring ways in which a very limited issue could be dealt with in an efficient manner.Ground 3 - The Deputy President erred in relying on Almeida v Opportunity Equity Partners Ltd.[5][5] [2006] UKPC 44 at [103]. The Deputy President did not rely on Almeida. He referred to the observation of Lord Walker for the purpose of demonstrating that his interventions were motivated by a wish to understand the evidence. The Deputy President was, in his exchanges with the parties, attempting to understand how the evidence proposed to be called might be relevant to the issues before him. That is a common practice in both the Commission and the courts of this country. As the Deputy President rightly observed, no witness was prevented from attending nor was any direction given to suppress the appellant’s right to present or call evidence. This ground is misconceived.Ground 4 - The Deputy President erred in allowing a representative of the University of Southern Queensland to appear and object to the Attendance Notices. The appellant again misunderstands what occurred at the mention. It was made clear by the Deputy President that he was not allowing the representative to appear in the appeal hearing. The purpose of Ms Hillman’s appearance was to make submissions about the Attendance Notices. The appellant has conflated decisions concerning the capacity of an employee to intervene in proceedings on appeal with this, separate, application to set aside Attendance Notices. The pointlessness of this ground can be demonstrated by the fact that the Attendance Notices were not set aside and remained in place. In other words, even if the Deputy President had erred, the appellant suffered no prejudice. In any event, assuming for the sake of argument the appellant is correct on this point, it is not a ground for recusal.Ground 5 - The Deputy President failed to consider the interest of the appellant and public interest and failed to consider and impartially judge whether his overall conduct was tenable under the law and whether he had acted within the principles of equity, good conscience and the substantial merits of the case, and whether his actions were reasonable within the parameters of reasonableness under the law.

Decision

Reasons for decision

I have not set this ground out. It amounts to little more than a summary of the effect of the earlier grounds and, thus, has already been considered.Conclusion The basis upon which the appellant has pursued this appeal stems from an inadequate understanding of the processes of the Commission. No orders were made confining the appellant in the manner in which he wished to pursue his appeal. All that occurred at the mention was a completely ordinary hearing dealing with the days which might be needed to conduct the appeal and to consider an application to set aside Attendance Notices. No grounds have been made out for the appeal. It is dismissed. The respondent seeks an order for costs in accordance with s 563 of the Workers’ Compensation and Rehabilitation Act 2013. It provides:“(1) On an appeal, the industrial court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause.” The test to be applied is not simply whether or not the application was unsuccessful. It is whether the application could not succeed at the time when it was made.[6] I adopt what was said by Wilcox J in Kanan v Australian Postal and Telecommunications Union:[7]“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where it appears that, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”[6] See MIM Holdings Limited v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees Queensland (2000) 164 QGIG 370, 371.[7] [1992] FCA 366 at [29]. As I have said with respect to the grounds of appeal, this matter was entirely misconceived and based upon a misunderstanding of what was occurring at the mention hearing. The absence of any basis for the appeal means that it was instituted without reasonable cause. I order that the appellant pay the respondent’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

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