Downer EDI Mining - Blasting Services Pty Ltd v Moore and Q-COMP [2013] QIRC 93

CITATION: Downer EDI Mining - Blasting Services Pty Ltd AND James Moore and Q-COMP (WC/2013/209) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 320 - leave to appear Downer EDI Mining - Blasting Services Pty Ltd AND James Moore and Q-COMP (WC/2013/209) COMMISSIONER THOMPSON 27 June 2013 DECISION Introduction [1] An Application for leave to intervene in WC/2011/412 (the Appeal) was made by Downer EDI Mining - Blasting Services Pty Ltd (the Employer) and lodged with the Industrial Registrar on 20 June 2013. [2] The Application was accompanied by an Affidavit of Trudy Naylor, a Partner at McCullough Robertson Lawyers, which contained the following: "(b) I am instructed, and verily believe, that Ms Leah Stangle, Senior Lawyer of the Employer first became aware that the Appellant in this Appeal, intends to raise matters that only the Employer will be able to address, when she received correspondence from Ms Ruth Jamieson of QComp’s Review Unit on 13 June 2013. The correspondence consisted of a letter dated 12 June 2013 (the Letter) from the lawyers for the Appellant to Ms Jamieson. (c) I am instructed, and verily believe, that once Ms Stangle became aware of the hearing date she made further enquiries with QComp. Ms Stangle met with QComp on 17 June 2013 to discuss the Letter and the matters contained therein. (d) I am instructed, and verily believe, that as a consequence of the above events discussed in paragraphs (b) and (c), Ms Stangle has concerns that certain matters may be raised by the Appellant during the hearing of which the Employer may need to respond. (e) Should the Employer be granted leave to appeal in the Appeal and to call and adduce evidence, it will lead evidence addressing the matters raised by the Appellant that are specifically relevant to the Employer which may be beneficial to the Commission. (f) QComp does not stand in the shoes of the Employer, nor is the Employer the client of QComp. Each has different interests and the Employer seeks to protect its interests in relation to the Appeal. (g) Should the Appeal be upheld by the Commission, this decision is likely to impact on a claim for compensation, and potentially a claim for damages, payable by WorkCover Queensland to the Applicant, Mr Moore, which will impact on the Employer’s premium and claims history. It is therefore reasonable to allow the Employer to protect its interests in the proceedings before the Commission. (h) This Application for Leave to Intervene was filed as quickly as possible after the Employer became aware of the date of the hearing and the evidence intended to be led by QComp. (i) The Appeal is set for hearing on 1 July 2013. The Applicant does not ask for the hearing date to be adjourned or altered.". [3] At the commencement of proceedings of this Application, correspondence from Taylors Solicitors under the signature of Craig Worsley that had been forwarded to Q-COMP on 12 June 2013, was tendered by Q-COMP [Exhibit 1]. Applicant [4] Counsel for the Employer relied upon an outline of submissions which was provided to the Queensland Industrial Relations Commission (the Commission). This included commentary to the effect: • the Commission has a discretion to grant interested parties leave to be heard subject to some restrictions; • in determining whether to grant such leave, the Commission must consider whether the Employer's interests would be adversely affected by the outcome of the Appeal and weigh any assistance that the Employer may give the Commission in informing itself to achieve justice, as opposed to any delay that may be occasioned; • the Employer's reputation and the reputation of its Employees may be adversely affected by issue of management actions and issues raised in the correspondence marked Exhibit 1; • the pecuniary interest of the Employer will be directly affected should the Appellant in the Appeal be successful by increases to premiums and possible claims for common law damages against the Employer; and • no adjournment is sort of the Appeal which is scheduled to be heard over five days from 1 July 2013. -- 1 of 3 -- 2 [5] The Employer, in seeking the Order, indicated that if granted they would not be seeking costs. Q-COMP (Second Respondent) [6] Q-COMP did not oppose the Application, indicating that issues raised in the correspondence marked Exhibit 1 were matters that would be best responded to by the Employer as it was acknowledged that there were implications regarding the reputation of the Employer. First Respondent [7] The Appellant in the Appeal did not take issue that the Commission had the power to exercise the discretion being sought to allow the Employer to intervene. However, the Application, in essence, was opposed with reliance upon a number of matters supportive of their position: • the lateness of the Application, dated 20 June 2013, for reasons that the Employer had known for the past two years of the matters likely to be canvassed in the Appeal; • timing difficulties regarding disclosure and production of material; and • it may have been possible to eliminate prejudice in the Appeal, therefore suggesting the intervention would not necessarily be required. [8] It was submitted that if the Commission was inclined to exercise discretion and grant the Application, concerns were expressed in respect of: • the Employer having the right to cross-examine Q-COMP witnesses; and • the requirement of disclosure to be in line with the Further Directions Orders dated 21 November 2012 as opposed to limitations that would be evident with reliance upon s. 554 of the Workers' Compensation and Rehabilitation Act 2003. Conclusion [9] The Employer does not have an automatic right of appearance in the Appeal, but is able to be granted such leave through the exercising of the Commission's discretion. That discretion is not the subject of contest in these proceedings. [10] In this particular case, the Commission is constrained by extremely tight timeframes due to the Hearing of the Appeal commencing in Mackay on 1 July 2013. [11] On the matter of the Application of the Employer being timely or otherwise, after considering the contents of the correspondence marked Exhibit 1, I accept that the content was the trigger for the Employer's Application and the Application was made in a timely fashion, appropriate in the circumstances. [12] The position of the Employer not to interfere with or disturb the directions relating to the Hearing of the Appeal means that the conduct of the trial is not prejudiced. [13] In terms of a successful outcome for the Appellant in the Appeal, there are undoubtedly matters likely to impact on the Employer by way of premiums and potential common law claims for damages. [14] Therefore, it is appropriate that the Employer be given an opportunity to protect its interests in the course of the proceedings commencing on 1 July 2013. [15] It is not of question that Q-COMP does not act on behalf of the Employer in the Appeal and therefore there is no requirement for Q-COMP to look after the Employer's interests or reputation. [16] Further, the Employer has effectively waived the matter of costs in the Appeal. -- 2 of 3 -- 3 [17] Therefore, on consideration of the submissions and material before these proceedings, I have decided to exercise my discretion to grant the Employer leave to appear under the following terms: ORDER This Commission, does, pursuant to s. 320 of the Industrial Relations Act 1999, ORDER that: 1. Downer EDI Mining Pty Ltd - Blasting Services Pty Ltd (the Employer) be granted leave to be heard at the proceedings in matter WC/2011/412 (the Appeal) in the Queensland Industrial Relations Commission (the Commission). 2. The parties to the Appeal and the Employer exchange a list of documents, and copies of those documents, in their possession or under their control relevant to a matter in issue in the proceedings which are not subject to legal privilege by 4.00 p.m. on 28 June 2013. 3. The Employer shall have liberty to (in WC/2011/412): (a) Call witnesses and adduce evidence; (b) Cross-examine the Appellant's witnesses at the hearing of the Appeal; (c) Only cross-examine witnesses called by the Respondent at the hearing of the Appeal with the leave of the Commission; and (d) Make submissions at the hearing of the Appeal to the Commission. 4. Until further Order the Employer is not at liberty to seek costs from the parties at the completion of any Hearing of the Appeal (WC/2011/412). 5. Each party shall bear their own costs in matter WC/2013/209. [18] I order accordingly. J.M. Thompson, Commissioner. Hearing Details: 2013 25 June Released: 27 June 2013 Appearances: Mr P. Rashleigh, of Counsel, instructed by Mr J. Lynagh of McCullough Robertson Lawyers for the Applicant. Mr C. Worsley, of Taylors Solicitors, for the First Respondent. Ms R. Jamieson of Q-COMP, Second Respondent. -- 3 of 3 --