Choy v Workers' Compensation Regulator [2019] QIRC 171

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Choy v Workers' Compensation Regulator [2019] QIRC 171 PARTIES: Choy, Lai Fung (Applicant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2019/7 PROCEEDING: Application in proceedings for the Industrial Commissioner to recuse himself. DELIVERED ON: 12 November 2019 MEMBER: HEARD AT: Dwyer IC On the papers ORDER: 1. The application is dismissed. CATCHWORDS: INDUSTRIAL LAW – interlocutory application – application for recusal – alleged business association with worker's former employer – no evidence of business association as alleged – no particulars to allegation - lack of evidence to support relevant test LEGISLATION: CASES: Workers' Compensation and Rehabilitation Act 2003 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 -- 1 of 11 -- 2 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Polites and another; Ex parte Hoyts Corporation Pty Ltd and others (1991) 173 CLR 78 Reasons for Decision [1] Ms Choy (the Applicant) is the appellant in an appeal against a decision by the Workers' Compensation Regulator (the Respondent) to reject her application for compensation (the substantive matter). [2] The Applicant was formerly employed at the Queensland University of Technology (QUT). The basis of the rejection of her claim is, in short terms, that her injury arose out of reasonable management action within the meaning of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003. [3] The Applicant's claim alleges twenty-nine separate stressors, many of which relate to allegations of bullying from her supervisor and other persons, extending between February and June of 2017.1 13 August 2019 mention [4] The substantive matter was allocated to me in early August and then was listed for mention on 13 August 2019 to ascertain whether the matter was ready to proceed to hearing. At the mention of the matter Mr O'Neill, who appeared as counsel for the Respondent, informed the Commission that the Respondent wished to be heard (on a preliminary basis) on an application to ascertain the date upon which the Applicant's injury was said to arise. [5] Mr O'Neill was permitted to hand up an application in proceedings and supporting affidavit. The application in proceedings and affidavit had been filed in the Registry earlier on 13 August 2019. It was established that the Applicant had received a copy of this material, though it appears that she had received it only shortly before the mention. 1 Applicant's list of stressors filed 17 April 2019. -- 2 of 11 -- 3 [6] The material was not especially voluminous. It ran to a total of 26 pages, much of which was the Applicant's own medical records. In light of the request, and given the supporting material had just been received, the mention was stood down for approximately 30 minutes to allow the request to be considered. [7] As an aside, Mr O'Neill had also sought orders with respect to disclosure of audio recordings said to be in the possession of the Applicant. However, later in the course of the mention, he indicated a willingness to refrain from pressing that application subject to a determination as to the date of injury.2 [8] Upon resumption of the mention the Applicant confirmed3 she had read the application made by the Respondent and she was invited to offer her response. [9] While it was apparent from the Applicant's initial responses that she was not in agreement with the matter being listed for preliminary hearing, she appeared to misunderstand the process. She was given reassurance that the matter was not being determined at that very moment, and that she would have an opportunity at the preliminary hearing to present her evidence and arguments.4 [10] Following clarification of the process the Applicant agreed to the preliminary hearing. While the Applicant might have been affected by mental health issues at the time, and while English may not be her first language, neither of these factors appeared to be significant impediments, and she appeared able to adequately represent herself. [11] Importantly, I did not observe (and nor would I have allowed) the Applicant to be at any disadvantage throughout the mention. [12] Consequently, the matter was listed for preliminary hearing on 4 September 2019. Medical certificate [13] On 22 August 2019 the Applicant submitted a medical certificate that confirmed she was unfit to participate in any court proceedings or attend court until after 10 September 2019. The covering email from the Applicant suggested that she had been experiencing an increase in her symptoms of anxiety and depression 'since last week' and it impaired her ability at the mention on 13 August 2019. Her incapacity extended to the impending preliminary hearing. [14] Accordingly, the preliminary hearing was cancelled, and the matter was listed for further mention on 13 September 2019. At the request of the Respondent, the Applicant supplied 2 Transcript, 13 August 2019, page 1-13 line 25-47. 3 Transcript, 13 August 2019, page 1-6 line 10. 4 Transcript, 13 August 2019, page 1-6 to 1-7. -- 3 of 11 -- 4 a medical certificate confirming she was fit to attend this mention. The Applicant supplied a medical certificate confirming her fitness. [15] The assertion by the Applicant that she was impaired at the 13 August 2019 mention gave me some cause for concern that perhaps the Applicant's mental health issues were a greater impediment than was previously apparent. 13 September 2019 mention [16] The Applicant's behaviour at the mention on 13 September 2019 was further cause for concern. Even considering that she was self-represented, the Applicant was very slow to answer certain questions e.g. she struggled to identify her treating psychiatrist. [17] On more than a few occasions the Applicant would go silent when asked a question, then step away from the lectern (for no apparent reason) and place her hands over her eyes. She appeared to be somewhat unusually and adversely affected by the process. [18] As a result of this, I held concerns that the Applicant may be putting herself at a significant disadvantage by conducting her own proceedings whilst patently affected and possibly impaired by a disturbed mental state. [19] Further to these concerns the Applicant was invited at this mention, on an informal basis, to provide medical certification as to her fitness to conduct proceedings on her own behalf. The purpose of this request was primarily to protect the Applicant from causing her case to miscarry, and secondly to ensure the matter could proceed efficiently. [20] After some discussion, the Applicant gave consent to provide her treating psychiatrist with a list of questions that I undertook to prepare, and which were designed to establish whether she had appropriate capacity to act on her own behalf. Objection email and allegation of conflict [21] Subsequent to this mention, on 24 September 2019, the Applicant submitted a comprehensive submission in the form of an email that objected to the provision of any medical certification addressing her fitness to conduct her own proceedings. [22] The articulate nature of the Applicant's email was a significant contrast to her appearance on 13 September 2019 and went some way to allaying concerns I had held as to her ability to advocate on her own behalf, at least in written form. [23] Significantly, the Applicant's email contained these statements: -- 4 of 11 -- 5 1. I felt I was not afforded procedural fairness at the mention on 13 August 2019 when a decision to proceed to a 1 day hearing was made based on the Regulator's last minute formal submission of an Application – before I could properly digest the document, explore my right of response to the Application (before the hearing) and without knowing my right to request for an adjournment. The affidavit attached to the application have (sic) factual errors and I disagree with the dates of decompensation nominated by the Respondent. I am of the view that I decompensated after 20 June 2017 and that the doctor's evidence alone is not determinative of the injury date as all other relevant facts ought to be considered to ascertain the crystallisation of an injury – before the date of injury or assessment of injury can occur… 4. I believe my only access to justice lies in the hands of the decision-maker of the legal system. However, after the events noted in 1 above, my confidence in access to that justice was shaken when I became aware of information indicating the Commissioner has a business association with QUT through the provision of lecture services at QUT. I could not shake off the thought that my case before the Commission is doomed by virtue of that association and the apparent conflict of interest. Collectively, these caused me enormous grief. As a result, I was overcome with sadness when I appeared before the Commissioner on 13 September 2019. [24] The Applicant appears to attempt to draw a connection between her perception of denial of natural justice on 13 August 2019, and a 'business association' she alleges I have with QUT. [25] The Applicant's submission in this respect amounts to an assertion of a conflict of interest on my part. She refers to it as an 'apparent' conflict of interest, but in the context of her submission it appeared to be an allegation of an actual conflict of interest. [26] While the Applicant's email did not extend to an application for recusal, it was necessary to give the Applicant an opportunity to make such application in light of these comments. [27] Consequently, the matter was listed for further mention on 2 October 2019. 2 October 2019 mention [28] At the further mention on 2 October 2019, after informing the Applicant that the question of her capacity to conduct her own proceedings was, for now, no longer of concern to me, the Applicant was then invited to explain her assertion of the conflict-of-interest. [29] The Applicant's explanation was that I had a 'business association' with QUT. The Applicant's belief in this regard made it difficult for her to look at me without 'seeing' the people who had caused her stress. She said she found this 'traumatising'.5 [30] The Applicant offered no further insight or evidence as to the 'information' upon which she relied to form this view.6 Notwithstanding assurances as to the limited and non- commercial nature of my past association with QUT, and the fact that such association 5 Transcript, 2 October 2019, page 1-4 line 15-30. 6 I surmised that the Applicant had conducted a Google search of my name which would have revealed that before my appointment to this Commission I was a visiting/volunteer lecturer at the QUT Legal Practice Course. -- 5 of 11 -- 6 had ceased since my appointment to the Commission, the Applicant contended her concerns were not allayed.7 [31] Because of the Applicant's concerns, she was invited to consider making a formal application for recusal. She did this by way of email communication on 4 October 2019. [32] Subsequent to her application, directions for the filing of written submissions were issued and those written submissions from the parties were received from the Applicant and Respondent on 18 October 2019 and 25 October 2019 respectively. Submissions of the Applicant [33] The submissions filed by the Applicant are for the most part, a reiteration of matters relevant entirely to her substantive appeal. To the extent that they are relevant to the application for recusal, they largely replicate the Applicant's comments in her email of 24 September and provide as follows: Firstly, I felt I was not afforded procedural fairness at the Mention on 13 August 2019 (Mention) when a decision to proceed to a 1 day hearing was made based on the Respondent's last minute formal submission of an Application – before I could properly digests the document, explore my right of response to the Application (before the hearing) and without knowing my right to request for an adjournment.... …Fourthly, I believe my only access to justice lies in the hands of the decision-maker of the legal system. However, after the events noted above in QIRC proceedings, my confidence in access to that justice was shaken when I became aware of information indicating the Commissioner has a business association with QUT through provision of lecture services at QUT. I could not shake off the thought that my case before the Commission is doomed by virtue of that association and the apparent conflict of interest. Collectively, these caused me enormous grief. As a result, I was overcome with sadness when I appeared before the Commissioner on 13 September 2019. I see is someone from QUT sitting from the podium supported by QUT staff and that intensifies the anxiety to an unbearable level, given I felt I have lost everything because of QUT. [34] The Applicant's submissions fail to provide any evidence or description of the 'information' upon which she relies to make her assertion of conflict of interest. Instead, she simply asserts a 'business association' and apparently seeks to rely on her (subjective) assertion that she was denied procedural fairness when I first mentioned this matter on 13 August 2019 as some form of 'proof' of that bias. [35] Further, the Applicant's submissions do not identify how the alleged 'business association' is said to affect my capacity to impartially deal with the matter. [36] The Applicant's submissions were accompanied by a medical report of Dr Thomas Moore, consultant psychiatrist, dated 22 January 2019. The intent of submitting the 7 Transcript, 2 October 2019, page 1-4 line 30-45. -- 6 of 11 -- 7 medical report appears to be to demonstrate how the stressors affect the Applicant. The report certainly does that. [37] The report of Dr Moore is not strictly relevant to the current application, however it ought to be noted that it paints a very bleak and concerning clinical picture of the Applicant. Submissions of the Respondent [38] The Respondent opposes the application for recusal. In written submissions dated 25 October 2019 the Respondent identifies several relevant authorities addressing the legal principles applicable to applications for recusal. I will refer to some of these authorities in my consideration of this matter set out below. [39] On the question of the alleged denial of procedural fairness at the mention on 13 August 2019, the Respondent submits that, to the contrary, the Applicant could not have been taken by surprise by the application for preliminary hearing. By reference to the transcript8 of earlier conference proceedings on 11 July 2019 (before Deputy President Merrell) the Respondent demonstrated that the Applicant had been made aware of and had been part of a discussion about the Respondent's concerns to identify the date of injury and their intention to seek a preliminary hearing on that issue. A review of that transcript reveals this to be correct. [40] On this basis the Respondent submits that the Applicant was not surprised or disadvantaged by the request on 13 August 2019 for the matter to be listed for preliminary hearing. [41] The Respondent submits that the only basis for the application for recusal is the alleged business association with QUT. The Respondent notes that QUT is not a party to this appeal. The Respondent notes further that it is an entirely independent entity and does not act for or take instructions from QUT. [42] In addition to these observations, the Respondent submits that the mere fact of a relationship between the Commissioner and QUT in the form of casual lecturing work is not, of itself, something that would cause a fair-minded lay observer to reasonably apprehend that the Commission would be impartial in its conduct of the matter. [43] The Respondent emphasises that the test for recusal is an objective test. It is how a fair- minded and reasonable observer would view the situation. The Respondent submits that the Applicant is basing her assessment on a 'completely subjective, jaundiced (if not paranoid) view of QUT'. 8 See Respondent's submissions dated 25 October 2019, paragraph 26, footnote 1. -- 7 of 11 -- 8 [44] Referring to the principles espoused in Ebner v Official Trustee in Bankruptcy,9 the Respondent submits that the Applicant fails at the first of the two-stage recusal test. Relevant principles [45] The test for disqualification on the ground of bias is set out in the judgements of Gleeson CJ, McHugh, Gummow, and Hayne JJ in the decision of Ebner v Official Trustee in Bankruptcy10 where it was said: ... A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.11 [46] And further: The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits…. Only then can the reasonableness of the asserted apprehension of bias be assessed.12 (emphasis added) [47] Further, in Minister for Immigration and Multicultural Affairs v Jia Legeng,13 Gleeson CJ and Gummow J said: Decision-makers, including judicial decision makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-makers mind is blank; it is whether it is open to persuasion.… Natural justice does not require the absence of any predisposition or inclination for against an argument or conclusion.14 [48] In Re JRL; Ex parte CJL,15 Mason J said: It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, 9 (2000) 205 CLR 337. 10 Ibid. 11 Ibid, 344. 12 Ibid, 345. 13 (2001) 205 CLR 507. 14 Ibid, 531. 15 (1986) 161 CLR 342. -- 8 of 11 -- 9 they will have their case tried by someone thought to be more likely to decide the case in their favour.16 (emphasis added) [49] Finally, in Re Polites and another; Ex parte The Hoyts Corporation Pty Ltd and others,17 Brennan, Gaudron and McHugh JJ said: …the prior involvement of the Deputy President with associations or with governments who are frequently parties to proceedings before the commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case.18 Consideration [50] The Applicant alleges that there arises an 'apparent conflict of interest' because I have a 'business association with QUT through provision of lecture services at QUT'. This is the singular basis of her application for my recusal. [51] The Applicant, notwithstanding she had the opportunity to do so in written submissions, failed to elaborate on the 'information' she purportedly based her allegation on. [52] In the absence of particulars from the Applicant it ought to be noted in fairness to her that prior to my appointment to this Commission I was a practising member of the Queensland Bar for in excess of 14 years. Before that I was a solicitor for approximately 11 years. In my capacity as a legal practitioner I was periodically a volunteer lecturer at the QUT Legal Practice Course (LPC), which is part of the QUT Faculty of Law, over a period of approximately 20 years. In addition to this, for a lesser period of approximately 10 years, I also volunteered as an instructor on the LPC advocacy intensive. [53] In respect of the latter activities I was sometimes (but not always) paid a casual hourly rate for the day of engagement only. I receive such payment, in my estimation, approximately 6 times. My annual commitment to these activities amounted (in total) to approximately 20-22 hours. [54] During my practising career I had no other association of any description with QUT or any staff outside of those employed at LPC, and if the Applicant believes otherwise, she is mistaken. [55] Importantly, upon my appointment to this Commission I notified the course director, Associate Professor Allan Chay, that I was no longer available to volunteer my services. 16 Ibid at 352. 17 (1991) 173 CLR 78. 18 Ibid, 87. -- 9 of 11 -- 10 [56] Having regard to the authorities cited above and the principal espoused in Ebner v Official Trustee in Bankruptcy19 the Applicant has failed the first of the two tests. Ms Choy has failed to adequately identify what it is that might lead me to decide her case on something other than a legal or factual basis. The reference to 'business association' is not explained and in any event, it is not an accurate description of my previous relationship with QUT LPC. A bland assertion of association with QUT is, in my view, not enough. [57] Even if one considers the simple proposition: that a former casual/volunteer lecturer with QUT will be biased towards QUT, that is not the assertion of the Applicant. At its highest, the Applicant's submission appears to be that the alleged trauma she experienced whilst working at QUT is revisited upon her when she sees me in the hearing room.20 That is to say, she associates me with QUT, and that in turn reminds her of her traumatic experiences. [58] The Applicant's comments in this regard reveal her concerns to be entirely subjective. Further, her concerns are more accurately described not so much as an apprehension of bias, but a 'triggering' of trauma. [59] The Applicant seeks to conflate an allegation of denial of procedural fairness with her allegation of conflict of interest. The Applicant's assertion that she was denied procedural fairness at the mention on 13 August 2019 is also without foundation. [60] Whilst tendering an application at a mention is not an ideal practice, there was no prejudice to the Applicant. Earlier transcript of proceedings on 11 July 2019 reveals that she had clearly understood that such application would be made in her matter. Further, the mention was stood down for sufficient time for both the Applicant and I to review the application. Upon resumption of the mention, the Applicant confirmed she had read the application. [61] Finally, nothing of any substance was determined on 13 August 2019 other than that the matter would proceed to a preliminary hearing at which the Applicant would have every opportunity to argue her case on the preliminary point. [62] There is nothing about the Applicant's submissions or my prior association with QUT that would cause me to conclude that a reasonable observer would consider that I would decide the Applicant's matter in any way other than objectively and fairly. [63] The Applicant's highly subjective concerns, unsupported as they are by any particulars, are not truly concerns about bias or conflict of interest. Even if they are, they fall well short of constituting a basis upon which I would take the very significant step to recuse myself. 19 (2000) 205 CLR 337. 20 Transcript, 2 October 2019, page 1-4 line 15-30. -- 10 of 11 -- 11 [64] I am mindful of the words of Mason J in Re JRL; Ex parte CJL.21 My duty to sit is an important one, and not one that ought to be readily compromised. In this instance there is no case for recusal. Order 1. The Applicant's application for my recusal is dismissed. 21 (1986) 161 CLR 342. -- 11 of 11 --