Echo Entertainment Group Limited v Borg and Q-COMP [2012] QIRC 43

CITATION: Echo Entertainment Group Limited AND Grace Borg and Q-COMP (WC/2012/178) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 320(2) - basis of decisions of the commission and magistrates Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Echo Entertainment Group Limited AND Grace Borg and Q-COMP (WC/2012/178) VICE PRESIDENT LINNANE 30 May 2012 Application seeking right to be heard in an application to extend time to appeal - Insufficient particularisation of the interests to be affected if application granted - Self-insurer's interests identified - Exercise of discretion not to grant application - Application dismissed - Industrial Relations Act 1999 s. 320(2). DECISION [1] This is an application by Echo Entertainment Group Limited (Applicant) seeking a right to be heard (Application to be Heard) in an application by Grace Borg (Worker) to Extend Time for Lodging an Appeal (Application to Extend Time) against a decision of the Review Unit of Q-COMP (Q-COMP). The application is made pursuant to s. 320(2) of the Industrial Relations Act 1999 (Act). The Application to Extend Time is WC/2012/127. The substantive appeal by the Worker is WC/2012/100. The Worker opposed the Application to be Heard and Q-COMP's position was that it neither consented to, nor opposed, the application. [2] The material relied upon by the Applicant is found in paragraph 3 of the Application and the Affidavit of Jamie McPherson supporting the Application to be Heard. That material is as follows: "(a) On or around 26 October 2010, the Appellant lodged an application for compensation with Tabcorp Holdings Limited Self Insurance Unit (the Insurer) in respect of a psychological injury sustained over a period of time which allegedly occurred as a result of harassment and bullying at work. (b) By way of its reasons for decision dated 16 December 2010, the Insured [sic] informed the Appellant that it had decided to reject her application for compensation on the basis that although she had sustained a personal injury and that her employment was a significant contributing factor to the onset of her condition, the injury was excluded from the definition of injury as the issues raised constituted reasonable management action taken in a reasonable way by the Employer. (c) On or around 14 March 2011, the Appellant lodged an application for review of the Insurer's decision with Q-COMP. (d) On 18 April 2011 Q-COMP made a review decision. Q-COMP's review decision was to confirm the decision of the Insurer to reject the application for compensation. Q-COMP confirmed the decision of the Insurer on the basis that it was not satisfied that the Appellant's personal injury had arisen out of the exercise of unreasonable management action or reasonable management action taken in an unreasonable way and therefore the Appellant's condition was excluded by operation of section 32(5) of the Workers' Compensation and Rehabilitation Act 2003. (e) On 15 March 2012 the Appellant lodged an Appeal against the decision of Q-COMP to the Queensland Industrial Relations Commission. The Appeal was lodged out of time and the Appellant has sought a decision that the time for lodgement of the Appeal be extended from 20 business days until 15 March 2012. (f) The grant of an extension of time will allow the Appellant to prosecute the substantive Appeal. Our client's pecuniary interest will be directly affected by the outcome of the Appeal. Accordingly, we consider our client has sufficient interest in the substantive Appeal for leave to be granted for it to be heard on the Application. (g) We draw reference to section 320 of the Industrial Relations Act 1999 and to the Industrial Court decisions of Cameron Middleton v Teys Bros (Holding) Pty Ltd (No. C66 of 2000) and State of Queensland v Phillip Allan Squires & WorkCover Queensland (No. 37 of 2002). These decisions confirm that section 320(2) of the Industrial Relations Act 1999 allows the Commission a discretion to allow a non party to be heard. (h) We respectfully request that Echo Entertainment Group Limited be granted leave to appear in proceedings in terms of paragraph (2) herein.". -- 1 of 4 -- 2 [3] Other than the general statement that the Applicant's pecuniary interest would be directly affected by the outcome of the Appeal, no particular interest of the Applicant was identified. Neither the Notice of Appeal in WC/2012/100 nor the Application to Extend Time in WC/2012/127 was formally read by the Applicant in this proceeding although there is some reference to both matters in the material filed in support of the Application to be Heard. [4] A summary of the submission made on behalf of the Applicant is as follows:  the Applicant has a pecuniary interest in the outcome of the substantive appeal and as such would be affected by the outcome of the substantive appeal if the application to extend time is granted;  the Applicant was a "self insurer" and a "licensed self insurer" under the Workers' Compensation and Rehabilitation Act 2003;  if the substantive appeal is upheld the self-insurer's pecuniary interests would be affected;  the Applicant relied on some circumstances that occurred after the review decision was delivered;  a notice to produce had already been served on the Applicant;  it is not Q-COMP's responsibility to call witnesses on the Applicant's behalf;  "our client is a self insurer";  the Applicant was the employer of the Worker and it has a self-insurance unit within it;  if the application to extend time is granted, and if the subsequent appeal is upheld, then the Worker would have an entitlement to compensation under the Workers' Compensation and Rehabilitation Act 2003 and the self-insurance unit would be required to pay compensation;  the payment by the self insurance unit will affect the Applicant "on a whole";  there are circumstances within the knowledge of the Applicant which the Applicant considered would be of benefit to the Commission;  if Q-COMP does not call the witnesses with this knowledge then the outcome of any appeal will affect the Applicant's interests and thus the Applicant should have the right to be heard at the application to extend time; and  it was confirmed that the Applicant was relying upon the material in the Application to be Heard. [5] Relevantly under s. 549 of the Workers' Compensation and Rehabilitation Act 2003 an employer is treated quite differently to an insurer or self-insurer. An employer aggrieved by a decision may appeal to the Commission against a decision of Q-COMP under s. 549(1) of the Workers' Compensation and Rehabilitation Act 2003. An insurer or self-insurer has a right of appeal only if it is aggrieved by a decision of Q-COMP to "confirm, vary or set aside a decision of the insurer mentioned in s. 540(1)(a)(i) to (vi): see s. 549(2) of the Workers' Compensation and Rehabilitation Act 2003. The Worker's appeal in WC/2012/100 is not an appeal against a decision of Q-COMP mentioned in s. 540(1)(a)(i) to (vi). [6] The granting of a right for an employer to be heard in a worker's appeal against a decision of Q-COMP has previously been granted under s. 320(2) of the Act. Section 320(2) of the Act provides as follows: "320 Basis of decisions of the commission and magistrates … (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.". -- 2 of 4 -- 3 [7] I accept that s. 320(2) of the Act gives the Commission a discretion to allow a non-party to be heard: see Cameron Middleton v Teys Bros (Holdings) Pty Ltd1 and State of Queensland v Phillip Allan Squires and WorkCover Queensland2. [8] In Cameron Middleton v Teys Bros (Holdings) Pty Ltd3 President Hall stated that s. 320(2) of the Act vested the Commission "with a wide ranging power to gather 'evidence'" and that the Commission "may hear from a person with no right to be heard". The President went on to state that whilst s. 320(2) of the Act vested the Commission/Industrial Magistrates Court with a discretion to allow a person to be heard, there was no obligation to allow a person to be heard. The discretion under s. 320(2) of the Act was the discretion of the Commission/Industrial Magistrates Court dealing with the matter. [9] I am unaware of any authority whereby an insurer or self-insurer (as such) has been given a right to be heard under s. 320 of the Act in any appeal, or preliminary application on such an appeal, made under the Act and I was not provided with any authority which adopted a contrary view. If the interests of an insurer or self-insurer are interests that the Commission should consider when dealing with an application to be heard in either an appeal under the Act or a preliminary application connected with such an appeal, then WorkCover Queensland's interests may also need to be considered when the employer is not also a self-insurer. In my view an employer's interests in any appeal under s. 550 of the Workers' Compensation and Rehabilitation Act 2003 is not the same as an insurer's or self-insurer's interests. If the interests of self-insurers are to be considered in applications under s. 320(2) of the Act then it seems to me that there is nothing stopping WorkCover Queensland seeking a right to be heard in appeals where they may "be required to pay compensation". [10] In this instance I am being asked to exercise my discretion to grant an employer, which is stated to have a a self- insurance unit, a right to be heard in an Application to Extend Time on the basis of a non-identified pecuniary interest in the outcome of the substantive appeal. The Applicant in this Application to be Heard does not seek a right to be heard in the substantive appeal. Rather the Applicant seeks a right to be heard in an application by the Worker to extend time because, on the material filed, the Applicant has sufficient interest in the substantive Appeal. Once again no material was filed or elicited in the hearing of this Application which would enable me to determine whether the Applicant had a sufficient interest in the current application, which of course does not determine final rights, or the substantive Appeal. There was no suggestion that the reputation of the Applicant and its officers may be affected by matters to be canvassed in the Application: see State of Queensland v Phillip Allan Squires and WorkCover Queensland4. [11] The submission that the Applicant is a "self insurer" or a "licensed self insurer" strongly suggests that it is the self-insurer's interests that the Applicant seeks to protect rather than the employer's interests. In any event I have been provided with no basis, other than what was said by the Applicant in its submission, for me to find that the Applicant may assist me in the determination of the Application to Extend Time. All I have been told is that there is some "pecuniary interest" that would be directly affected by the outcome of the Appeal. In submissions I have further been informed that there are some "circumstances that occurred after the review decision" and that there are "circumstances within the knowledge of the Applicant" which the Applicant considers would be of benefit to the Commission in the hearing of the Application to Extend Time. [12] No particulars of the "circumstances" were attested to in the material. There was no evidentiary material provided as to the "circumstances within the knowledge of the Applicant". In my view I have not been given any sufficient evidence of the pecuniary interest affected, the circumstances occurring after the review decision, or the circumstances within the knowledge of the Applicant and its officers which would warrant me exercising my discretion under s. 320(2) of the Act. [13] In so doing I acknowledge that Q-COMP's interests in the Application to Extend Time may not be the same as the Applicant's interests. [14] I have also noted in the Application for Leave to Extend Time filed 3 April 2012 that the Worker relies upon actions taken by Tabcorp after Q-COMP issued its Reasons for Decision on 18 April 2011. The current Application is made by Echo Entertainment Group Limited whereas the Reasons for Decision of Q-Comp dated 18 April 2011 referred to the "decision of Tabcorp Holdings Limited (the Insurer)". The Application for Leave to Extend Time also refers to the employment of the Worker by Tabcorp. There is nothing in the material filed by the Applicant which would link Echo Entertainment Group Limited to Tabcorp Holdings Limited except for the following: 1 Cameron Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138. 2 State of Queensland v Phillip Allan Squires and WorkCover Queensland (2002) 170 QGIG 20. 3 Cameron Middleton v Teys Bros (Holdings) Pty Ltd (2001) 166 QGIG 138. 4 State of Queensland v Phillip Allan Squires and WorkCover Queensland (2002) 170 QGIG 20. -- 3 of 4 -- 4  in paragraph 1 of the Application to be Heard, the Applicant seeks an "order that Echo Entertainment Group Limiter[sic] ("the Employer"), the employer of Ms Grace Mary Borg ("the Appellant") …; and  in paragraph 3(a) of the Application it is stated that on or around "26 October 2010, the Appellant lodged an application for compensation with Tabcorp Holdings Limited Self Insurance Unit (the Insurer)…" [15] I was not supplied with any explanation for the change of name in the submissions. I am thus no wiser as to where Echo Entertainment Group Limited fits into the picture. I assume that there has either been an actual change in the employer or a change in the employer's name. Either way the material filed in support of the application ought to have dealt with the issue. [16] In all of the circumstances I am not prepared to exercise my discretion to grant the Applicant a right to be heard in the Worker's Application to Extend Time. I thus dismiss the Application. [17] Order accordingly. D.M LINNANE, Vice President. Hearing Details: 2012 May 22 Released: 30 May 2012 Appearances: Ms R. Sutter of MVM Lawyers for the Applicant. Ms O. Perkiss Counsel, instructed by McCowans Lawyers for the First Respondent. Ms K. Cameron for Q-COMP. -- 4 of 4 --