Blenner's Transport Pty Ltd v Gleeson and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 69

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Blenner's Transport Pty Ltd v Gleeson and Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 069 PARTIES: Blenner's Transport Pty ltd (Applicant) v Gleeson, Stephen (First Respondent) Simon Blackwood Workers' Compensation Regulator (Second Respondent) CASE NO: WC/2014/106 PROCEEDING: Application by Blenner's Transport Pty Ltd for leave to appear and be heard in WC/2013/183 DELIVERED ON: 16 April 2014 HEARING DATE: 15 April 2014 MEMBER: Commissioner Black ORDERS : 1. Blenner's Transport Pty Ltd is granted leave to appear and be heard at the hearing of Gleeson v Simon Blackwood (Workers’ Compensation Regulator) (WC/2013/183); 2. Conditions on leave to appear imposed. CATCHWORDS: WORKERS' COMPENSATION - POWER TO GRANT LEAVE TO APPEAR AND BE HEARD CASES: Industrial Relations Act (1999) s 320, s 329 Workers' Compensation and Rehabilitation Act (2003) s 549 Industrial Relations (Tribunals) Rules 2011 Woolworths Limited v Dinca [2014] QIRC 005 <http://www.qirc.qld.gov.au> Newman v Department of Corrective Services (2005) 180 QGIG 1036, 1037 Queensland Nurses’ Union of Employees v Blue Care (2003) 175 QGIG 872 -- 1 of 5 -- 2 APPEARANCES: Mr A. Ross, Solicitor, Sparke Helmore Lawyers for the Applicant. Mr M. Horvath, Counsel instructed by Smith's Lawyers, First Respondent. Mr S. Gray, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), Second Respondent. [1] This is an application by Blenner's Transport Pty Ltd (applicant) seeking leave to appear and be heard in Stephen Gleeson v Simon Blackwood (Workers’ Compensation Regulator) (WC/2013/183), being an appeal by Stephen Gleeson against a decision of Simon Blackwood (Workers’ Compensation Regulator) ("the Regulator") to confirm an earlier decision by WorkCover to reject his application for workers' compensation. [2] The Regulator rejected Mr Gleeson's application for review on 3 May 2013. Mr Gleeson appealed the review decision to the Commission on 31 May 2013. Subsequently the appeal was listed for hearing in Tully on April 28, 29, 30, and May 1, 2014. [3] On 11 February 2014 the regulator informed the applicant that it was considering withdrawing its defence of the appeal and in effect put the applicant on notice that if it did not elect to defend the appeal, it would be conceded. The regulator confirmed this position in correspondence sent to the applicant on 27 March 2014. On 2 April 2014 the subject application was lodged requesting that the applicant be given leave to appear and be heard in matter WC/2013/183. [4] In Woolworths Limited v Dinca1 Deputy President O’Connor determined that employer applications for leave to appear and be heard in workers' compensation appeals should be brought pursuant to s 329(b)(v) of the Industrial Relations Act 1999. In applying the relevant authorities the Deputy President decided that "the general proposition is that a right to be heard pursuant to s 329(b)(v) of the IR Act is to be exercised in favour of a person whose interest will be directly affected". In so concluding the Deputy President drew attention to the decision of President Hall in Newman v Department of Corrective Services2 wherein the President stated: "The general proposition is that a right to be heard pursuant to s. 329(b)(v) of the Industrial Relations Act 1999, and in truth Mr Newman's application was for the right to be heard as he had no right to intervene, is to be exercised in favour of a person whose interest will be directly affected. Conceding that s. 329(b)(v) of the Industrial Relations Act 1999 vests a discretion in the Commission and not in the Court, it is a discretion which goes to the right to be heard. Where, as here, the discretion as exercised against an applicant any issue about the right to be heard is dead forever. 1 Woolworths Limited v Dinca [2014] QIRC 005 <http://www.qirc.qld.gov.au> 2 Newman v Department of Corrective Services (2005) 180 QGIG 1036, 1037. -- 2 of 5 -- 3 It seems to me that in those circumstances, the matter is directly governed by the decision in House v The King (1936) 55 CLR 499 at 504 to 505, and is not subject to a gloss sometimes imposed on appeals from decisions bearing upon points of practice and procedure. See EA and S Plaster Co Pty Ltd v Jones and WorkCover Queensland 171 QGIG 650. Applying the principles of House v The King, op cit, it seems to me that there was an error in that the Commission failed to take into account that there was a discretion at s. 329(b)(v) of the Industrial Relations Act 1999 to impose conditions upon the grant of any right to be heard the proper exercise of which would avoid interference with the expeditious determination of the proceedings." [5] It is not in contention that the power vested by s 329(b)(v) of the IR Act is discretionary. The Commission has the discretion to determine whether leave to be heard should be granted and, if so, on what conditions. In Queensland Nurses’ Union of Employees v Blue Care 3 President Hall stated: "The application to be heard was made pursuant s. 329(b)(v) of the Industrial Relations Act 1999 (the Act). It is common ground that power vested by s.329(b)(v) is discretionary. The terms of s. 32CA of the Acts Interpretation Act 1954 make any submission to the contrary difficult to sustain. The circumstance that the power at s. 329(b)(v) is discretionary does not mean that in no circumstance may a stranger to proceedings in the Commission have a right to be heard. The case in support of a particular application to be heard may be so overwhelming that the discretion to grant a right to be heard will develop into a duty to do so. That will typically be the case where the interests of the person seeking to be heard will be directly affected by a decision in the principal proceedings. The case will be different where any impact of an order made in the principal proceedings upon the applicant to be heard will be indirect, tangential or consequential. In such a case fairness may require grant of the application to be heard. But an applicant seeking to be heard has no exclusive claim on fairness. In such a case it would be necessary to consider a range of other matters, e.g., whether other remedies are available to the applicant, the extent of any disruption to the inter partes nature of the principal proceeding, the applicant's prospect of success if heard etc. The Commissioner was alive to all of that. The Commissioner expressly referred to the decision of the High Court in Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 59 ALR 417. That case of course did not concern s. 329(b)(v) of the Act. It concerned an application to intervene under the Conciliation and Arbitration Act 1904 (C’wth). But the parties to the proceedings before the Commissioner accepted that principles developed in Ludeke, ibid, should guide the exercise of discretion under s. 329(b)(v). Importantly at p. 421 Gibbs CJ and at pp. 428-429 Deane J recognised the distinction between direct and indirect impact on the interests of an applicant." [6] After considering the submissions of the parties I am satisfied that the applicant has a direct interest in WC/2013/183 and is entitled to succeed in its application for leave to appear and be heard. In so concluding I accept the submissions of the applicant that its 3 Queensland Nurses’ Union of Employees v Blue Care (2003) 175 QGIG 872. -- 3 of 5 -- 4 pecuniary interest and its reputation may be adversely impacted by the proceedings or by the outcome of the proceedings. On the material available to me these considerations are sufficient to satisfy the direct interest test. Having said that I acknowledge that while the applicant apprehends the prospect of reputational damage if it is not allowed to participate in the appeal proceedings, an alternative line of thought might suggest that, on balance, reputational considerations may be better served by the opposite course of action. The choice here is between active participation in the hearing of an appeal which will not be defended by the Regulator and non-participation in a brief proceeding likely to deliver a consent order to the effect that Mr Gleeson has suffered a psychiatric injury pursuant to section 32(1) of the Workers Compensation and Rehabilitation Act 2003 which is not caught by section 32(5). [7] In granting leave to appear I do not accept the applicant’s submission that any entitlement to appear derives from a proposition that the "Second Respondent is no longer protecting the Applicant's interests" (Paragraph 5.2 of the applicant's submission). Such a proposition wrongly construes the role of the regulator. The applicant has been aware of the appeal lodged by Mr Gleeson under the Workers' Compensation and Rehabilitation Act 2003 for some significant period of time. It has always been open to the applicant to conclude that its interests may be best protected by taking a decision to participate in the appeal proceedings well before the Regulator elected to change course. [8] The Commission's discretion extends to both the determination of whether leave should be granted and also what conditions should be attached to any right of appearance. In this regard the submissions of the parties support a view that the applicant has been aware of Mr Gleeson's appeal for a significant period of time, including as a result of discovery processes initiated by both the regulator and Mr Gleeson. In the circumstances I have concluded that it would not be unreasonable to expect that the trial of Mr Gleeson's appeal listed for hearing on 28 April 2014 and beyond should continue as scheduled. I do not believe, having regard to the submissions made, that such a decision is precluded by considerations of procedural fairness or natural justice. Orders [9] In determining the application before me I have decided to issue the following orders: 1. The employer is granted leave to be heard at the hearing of Gleeson v Simon Blackwood (Workers’ Compensation Regulator) (WC/2013/183); 2. The hearing of the appeal will commence on 28 April 2014 in accordance with earlier directions; 3. The employer is to inform the appellant and the Regulator by 4:00pm on 17 April 2014 if it intends to oppose a finding that Mr Gleeson has sustained an injury and, if not, whether it intends to oppose a finding that Mr Gleeson's employment was significant contributing factor to his injury. 4. The employer is at liberty to: -- 4 of 5 -- 5 (i) call evidence and cross-examine witnesses at the hearing of the appeal; and (ii) make submissions and address the Commission on the evidence given at the hearing of the appeal and on matters of law; 5. 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; 6. There be no order as to the costs of this application; and 7. Other directions relevant to the conduct of matter number WC2013/183 will be issued by the Vice President in the normal course. -- 5 of 5 --