Embleton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 66

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Embleton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 066 PARTIES: Embleton, Georgia (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2014/270 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 20 April 2015 HEARING DATE: 21 and 23 January 2015 16 February 2015 (Appellant's submissions) 27 February 2015 (Respondent's submissions in reply) 18 March 2015 (Appellant's further submissions in reply) 2 April 2015 MEMBER: Industrial Commissioner Thompson ORDERS: Approval for the Appellant to file further limited submissions in reply. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Issue regarding submissions - Approval to file limited further submissions. CASES: Workers' Compensation and Rehabilitation Act 2003 Industrial Relations Act 1999, s 320 APPEARANCES: Ms O. Perkiss of Counsel, instructed by McCowans Specialist Lawyers for the Appellant. Mr J. Wiltshire of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), Respondent. -- 1 of 8 -- 2 Decision (No. 1) [1] At the conclusion of the evidentiary phase of the Appeal on 23 January 2015, Mr Wiltshire, Counsel for Simon Blackwood (Workers' Compensation Regulator) (the Regulator), handed up written submissions and took the opportunity to provide oral submissions. Counsel for the Appellant, Ms Perkiss, also provided oral submissions at the conclusion after which there was agreement to provide further submissions in written form upon the transcript of proceedings becoming available to the parties. [2] Mr Wiltshire in providing a response to the oral submissions of the Appellant stated: "There were just a couple of points that I wanted to respond to today in terms of what's been said. Obviously, I'll want the opportunity to reply to the written submissions as well, but I wouldn't think that would be substantial, though I hadn't anticipated necessarily that we were going to wait until the transcript was available. The submissions I have prepared, obviously, are prepared without the benefit of the transcript. So if anything specifically arises - if we're leaving it until a point in time when that's available, if there's anything that specifically arises out of that - - - ". [Transcript p. 2-42] [3] There was an understanding reached at the conclusion of the proceedings on 23 January 2015 that the Appellant would provide written submissions within the following fortnight and the Regulator would then be given two weeks from the receipt of those submissions to file a written response. [4] On 16 February 2015 the Appellant filed written submissions to which the Regulator on 27 February 2015 provided a written response. [5] The Solicitor acting for the Appellant forwarded an email to my Chambers on 11 March 2015 which contained the following commentary: "The Appellant does wish to submit further short submissions responding to the written submissions of Mr Wiltshire. From the writers' recall of events on the last day of hearing, Mr Wiltshire handed up original written submissions at that time, but was asked if he still wanted to hand them up or wait and put in written submissions upon receipt of hearing Transcripts. Mr Wiltshire indicated in response that he would still hand up those submission but he would like to also put in more written submissions when the Transcripts were available to him, and would therefore be providing further written submissions at that time. The Respondent has done this and those submissions include matters being raised for the first time from the Transcripts which the Appellant has not had the benefit of responding to because they were not in Mr Wiltshire's submissions handed up at the conclusion of the hearing when he did not have the Transcripts. The Appellant has put forward their submissions in full initially and the Respondent has had a chance to respond to those submissions but the Appellant has not had a chance to respond to the matters raised by the Respondent in its recent written submissions which were not previously raised by same because the parties did -- 2 of 8 -- 3 not have Transcripts at that time - and now the Respondent is raising issue with the Appellant being given that chance to respond to those matters. We consider this has put the Respondent at an unfair advantage and unfairly disadvantages the Appellant." [6] On 12 March 2015 the Regulator forwarded an email to the Appellant's Solicitors to which my Chambers were copied into, which stated amongst other things: "In those circumstances, the Regulator would have no objection to the appellant delivering further written submissions provided they are limited to responding to paragraph 2.1 of the Respondent's submissions in reply relating to the evidence of Dr Jayasinghe, and provided they are limited to matters of law or correction of factual error." [7] On 13 March 2015 the Solicitors for the Appellant forwarded an email to my Chambers stating the following: "I advise that I have spoken to my client and our client's Counsel and the Appellant considers that the compromise referred to by the Regulator below is a reasonable and fair one. Would you please advise whether Commissioner Thompson would allow the Appellant to file and serve further submissions in reply to the submissions of the Respondent responding to paragraph 2.1 of its submissions as agreed to by the Regulator in Ms Shedden's email below." [8] On 13 March 2015 an email was forwarded from my Chambers to both the Appellant and the Regulator which stated: "Please be advised Commissioner Thompson is happy with that course of action agreed between the parties." [9] The Appellant filed their submissions in reply on 18 March 2015 which drew the following response from the Regulator in the form of an email to my Chambers: "We object to those submissions in their entirety and are seeking that the matter be brought before Commissioner Thompson to be heard." [10] The Commission reconvened on 2 April 2015 for the purpose of dealing with the issues arising from the Appellant's submissions in reply. Regulator [11] The Regulator handed up written submissions which addressed the following points. Objections -- 3 of 8 -- 4 [12] The objection to the Appellant's reply submissions was on the grounds they were not in accordance with the agreement authorised by the Commission that the reply submissions be limited to:  replying to paragraph 2.1 of the Regulators reply submissions; and  matters of law and correction of errors of fact. Arrangements for written submissions [13] The submission identified the lodgement of submissions up to the Regulator's submissions in reply on 27 February 2015 and of the request by the Appellant to provide additional material in reply to the Regulator's reply submission. The Regulator initially objected to the provision of further submissions by the Appellant on the basis that the agreed course for the provision of submissions had been completed. [14] The Regulator, after further consideration, advised Solicitors acting for the Appellant and the Commission on 12 March 2015 that: "The Regulator's Counsel took the opportunity with the reply submissions to append a schedule of transcript references for the principal submissions. He also made some further submissions about the evidence of Dr Jayasinghe because his evidence at the hearing differed to what was in his written report, and had therefore not been addressed in the principal written submissions which were prepared prior to his evidence being given. The balance of the reply submissions were entirely responsive to the appellant's submissions. In those circumstances, the Regulator would have no objection to the appellant delivering further written submissions provided they are limited to responding to paragraph 2.1 of the Respondent's submissions in reply relating to the evidence of Dr Jayasinghe, and provided they are limited to matters of law or correction of factual error." [15] This led to a response on behalf of the Appellant "that the compromise referred to by the Regulator was a reasonable and fair one" and confirmation from the Commission of the acceptance of the course of action agreed between the parties. [16] On 18 March 2015 the Appellant sought to file, serve and rely on seven pages of submissions in reply, including 41 sub-paragraphs which constituted paragraph 2.1 of the Regulator's reply submissions. Principles relating to closing submissions [17] There was a long-standing and accepted practise in Queensland Legal Jurisdictions in that each party is entitled to closing submissions and the party which goes first then has the opportunity to reply. Some latitude may be allowed as appropriate, noting the party going second will have the opportunity for rebuttal argument in their principal submissions. Submissions are not intended as an opportunity to present further argument. [18] In the present case, irrespective of the practise, it had been expressly agreed between the parties and endorsed by the Commission regarding the limitations of -- 4 of 8 -- 5 matters to be contained within the submission. There was also a necessity for the provision of written submissions to be finite and not have a situation where parties continue replying to each other. The reply submissions [19] The Appellant's reply submissions were said to not cover any issues of law therefore having limited validity in addressing further argument around relevance of facts or opinions. [20] The Regulator's principal submissions on the evidence of Dr Jayashinge were prepared prior to the giving of his evidence and in the case of the Appellant their submissions were prepared with the benefit of the Regulator's principle submissions and the transcript. The Appellant referenced their evidence at paragraphs 3.4, 3.5, 6.11, 6.16 and 8.5 of the submissions. [21] There was ample opportunity at that time to make all the arguments or points considered necessary as to the appropriate interpretation of Dr Jayasinghe's evidence. The reply submissions were an opportunity only to address any errors of fact contained in paragraph 2.1 of the Regulator's reply submissions. [22] The Regulator's reply submissions referenced the oral evidence of Dr Jayasinghe with the following three sub-paragraphs of paragraph 2.1 dealing with the propositions that:  "Dr Jayasinghe's oral evidence referenced observation of discolouration whereas his written report referred on to the Appellant's own reports of discolouration, and questioning the relevance of that observation;  Dr Jayasinghe seemed uncertain as to some aspects of CRPS, in contrast to Dr Halliday; and  Dr Jayasinghe had agreed that if the Appellant had suffered a soft tissue injury on 4 May 2011 then it is likely she would have had pain on that date, but she did not." [23] In the Appellant's reply submissions none of the paragraphs assert that paragraph 2.1(a) contained any factual error or misstatement of fact instead it includes arguments as to the interpretation of the medical evidence. [24] The Appellant's reply submissions sought to respond to a number of paragraphs of the Regulator's principle submissions which could have been addressed in the Appellant's principle submissions. The paragraphs were identified as 4.5(b), 4.3(h)(ii), 4.3(j), 4.5(c) and 4.3(i). [25] The Appellant, if they had wished to make arguments for Dr Jayasinghe's evidence to be accepted in preference to any other doctor, had the opportunity to make such arguments in the principle submission. [26] The Appellant's submission sought to bring in extensive evidence from Dr McKenzie as well as seeking to make submissions about the relative merits of an Orthopaedic Surgeon and a Neurologist diagnosing Complex Regional Pain Syndrome (CRPS) which was not an issue raised in paragraph 2.1 of the Regulator's reply submissions and were, in fact, addressed in the Appellant's -- 5 of 8 -- 6 principle submissions at paragraph 6.15. There was also an analysis of Dr Halliday's evidence which was not raised in paragraph 2.1 of the Regulator's reply submission. [27] The Appellant's reply submissions at paragraph 3 were said not to be addressing an error or misstatement of fact and are therefore invalid as reply submissions. [28] The Appellant's reply submissions were not proper submissions in reply and in not complying with the sanctioned agreement should have been limited to matters of law or correction of errors of facts. [29] The Appellant's reply submissions should be disregarded in their entirety. Appellant [30] The very heart of the issue was the email exchange involving the Regulator, Commission and subsequently the Appellant's Solicitors as to what the limitations of the Appellant's reply submission would be in the circumstances. [31] The Appellant concedes that the Regulator on the day gave oral submissions in an open courtroom and that the Appellant gave some very limited oral submissions at that time but the principle agreement was always going to be for the Appellant to provide primary submissions in writing following the availability of the transcript. That in effect occurred with the Regulator subsequently providing a written response to those submissions. [32] The Regulator had suggested that Dr Jayasinghe's evidence was slightly different to the content of a one page report and now wants to limit the Appellant's ability to respond. The Appellant has the right to respond to any matters that are raised by the Regulator in their reply submissions to the initial period of the submissions. [33] The arrangement with the Solicitors on the agreement to limit the Appellant's reply to the Regulator's reply submissions to only paragraph 2.1 being Dr Jayasinghe's evidence as a matter of principle was wrong with the Appellant having the right to respond to every matter raised by the Regulator in their written outline. The fact that the Regulator gave oral submissions at the conclusion of the hearing does not change the right of the Appellant in terms of responding. [34] The Appellant, in wishing the Commission to consider the Appellant's reply submissions, had no objection to the Regulator being given a further opportunity to provide a written reply to the Appellant's reply submissions. Regulator in reply [35] The Regulator acknowledged there may be, at some time, leeway given by the Commission with respect to providing a reply to arguments that are contained in the submission of the Appellant and ordinarily that principle applies in this and most other jurisdictions. Irrespective of the practise, in this case it was explicitly agreed as to what the limitations were applying to the Appellant's reply submissions. To allow the Appellant a further opportunity would effectively give them a "second -- 6 of 8 -- 7 bite of the cherry" and that is not appropriate nor in accordance with the principles of fairness and equity. [36] On the matter of no objection to the Regulator providing further submissions, the point raised was "where does it end" and the agreement to allow the limited submissions provided a more than ample opportunity to the Appellant. Conclusion [37] In the course of the hearing on 2 April 2015 the Commission conceded that in terms of the submission phase of the substantive hearing the "waters were probably a little muddied" in that there were both oral and written submission options exercised by the Appellant and the Regulator and it may have been a "clearer path" to have simply relied upon a course of written submissions. [38] Nevertheless beyond the oral submissions of 23 January 2015 the Appellant filed written submissions on 16 February 2015 to which the Regulator provided a written response on 27 February 2015 (in addition to a written outline of submissions handed up on 23 January 2015). I acknowledge a general acceptance of the Regulator's argument of the long-standing practise, certainly in the Commission, of each party being entitled to provide closing submissions with the party going first then having the opportunity to provide reply submissions. There are however times when the Commission exercises a discretion to allow for the long-standing practise to be "stood aside" and for another arrangement to be put in place allowing for further material to form part of the proceedings. The Commission is able to exercise such discretion pursuant to s 320 of the Industrial Relations Act 1999 (the Act) and in particular s 320(2)(a), (b) and 3(a) and (b): "(2) In proceedings, the commission or Industrial Magistrates Court - (a) is not bound by technicalities, legal forms or rules of evidence; and (b) may inform itself on a matter it considers appropriate in the exercise of its jurisdiction. (3) Also, the commission or Industrial Magistrates Court is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of - (a) the persons immediately concerned; and (b) the community as a whole." [39] In relation to this case, upon receipt of the Regulator's written reply submission of 27 February 2015 the Appellant commenced a process that is well documented in this decision to be able to submit a "short submission" to respond to the Regulator's reply submission. [40] The facts of the matter are that Solicitors acting for the Appellant and the Regulator reached an agreement with regards to specific content to be contained within that response which took the following form: "In those circumstances, the Regulator would have no objection to the appellant delivering further written submissions provided they are limited to responding to paragraph 2.1 of the Respondent's submissions in reply relating -- 7 of 8 -- 8 to the evidence of Dr Jayasinghe, and provided they are limited to matters of law or correction of factual error." [41] The proposal was forwarded to my Chambers at which time I instructed my Associate to inform the parties of my acceptance of the agreement reached. [42] It is not of contention that the Appellant's reply submissions of 18 March 2015 went beyond the previously mentioned agreement and which became the genesis of the 2 April 2015 hearing. [43] It is necessary to make the observation that whilst submissions form an integral part of proceedings and are the subject of the Commission's overall considerations of an application or appeal they are not, nor can they be, afforded the same standing as that of evidence adduced in the course of those proceedings. [44] In this case, on 13 March 2015 a discretion was exercised in effect that ratified the agreement reached between the Solicitors acting for the Appellant and the office of the Regulator. Having considered the arguments of the parties I have not been convinced to depart from the position adopted on 13 March 2015 and to do so would in essence have the effect of not only enabling the Appellant's reply submissions of 18 March 2015 to form part of the proceedings but then for a further response from the Regulator which in all reasonableness starts to go "beyond the pale". [45] I therefore reiterate the earlier discretion exercised on 13 March 2015 which allows the Appellant "to file and serve further submissions in reply to the submissions of the Respondent responding to paragraph 2.1 of its submissions as agreed to by the Regulator". These submissions are to be limited to matters of law and corrections of errors of fact. [46] These submissions are to be filed by 4.00 pm on Tuesday 28 April 2015. [47] I order accordingly. -- 8 of 8 --