Chen v Q-COMP [2012] ICQ 7

CITATION: Cui Ling Chen AND Q-COMP (C/2012/3) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission Cui Ling Chen AND Q-COMP (C/2012/3) PRESIDENT HALL 16 May 2012 DECISION [1] This is an Appeal against a decision of the Queensland Industrial Relations Commission (the Commission) given under the Workers' Compensation and Rehabilitation Act 2003 (the Act), on 3 February 2012. The only issue before the Commission was whether Ms Cui Ling Chen was a "worker" for the purposes of s. 108(1) of the Act, when she sustained an injury at her estranged husband's noodle factory on 14 July 2010. The Commission held that Ms Chen carried the onus of proof. That conclusion is not challenged. The Commission also held that Ms Chen had failed to discharge the onus of proof. Ms Chen now Appeals to this Court. Such an appeal is by way of rehearing "on the evidence and proceedings" before the Commission, see s. 561(3) of the Act. On such an appeal, very great respect is to be shown to the advantage enjoyed by a Member of the Commission who hears the evidence and observes the witnesses. Findings of fact based on conclusions about credibility are not lightly to be interfered with. However, the Court must not hide behind that advantage. Materially, if the Commission is shown to have misapprehended or misinterpreted evidence, the Court must not shrink from intervention, compare Delaney v Q-COMP1 at 195. The correction of error is exactly what appeals are about, compare Garrett v WorkCover Queensland2 at 220. Here, the Appellant complains that two findings by the Commission about credibility arose from a misapprehension or flawed recollection of what had occurred at the hearing, and complains that a third finding about credibility arose from flawed scrutiny of an exhibit. [2] Critical to the first credibility finding attacked by the Appellant, are paragraphs [20], [21] and [64] of the Commission's decision: "[20] Ms Chen was asked questions about a patient election form completed on 4 August 2010. She was shown the form but Ms Chen said she could not read it and nor did she complete it. However, when Ms Chen was referred to the first question, which asked, 'Are you a public patient', she replied 'I don't understand what is meant by "public" or "private" …'. When Counsel for Q-COMP pointed out that he had not mentioned anything about 'private', Ms Chen said that 'she could not remember so many things' and did not know the difference between public and private. [21] Counsel for Q-COMP then took Ms Chen to other questions in the form such as the patient's Medicare number and whether the patient holds a Department of Veteran's Affairs entitlement card etc. The form also asked whether the patient has a work related injury or illness. The answer ticked was 'no'. Until Ms Chen was taken to that question and answer she had confirmed that the previous answers on the form were correct. Ms Chen said that she had had an accident at work but could not explain why the answer to the question was 'no'. All she did say was that there were so many documents and she could not remember. … [64] The next matter which counts against the credibility of Ms Chen is her answers to the questions about the patient election form. Firstly, the Commission considers that Ms Chen knew more about the matters being asked on the form than she suggested. The issue of 'private' status lends credence to that view. Moreover, even accepting that Ms Chen had assistance in completing the form, the Commission considers that her evidence given in cross-examination about the answer to the question of whether the injury or illness was work related is simply not credible. It was a critical question and Ms Chen obfuscated.". [3] The Commission was correct to find that Ms Chen had been cross-examined about a "patient election form". However, the form was not in evidence. Counsel for Q-COMP attempted to tender the form. Counsel for the Appellant objected. The Commissioner observed: "Might be a point to that Mr Rashleigh.". Counsel for Q-COMP abandoned the attempt to tender the form. 1 Delaney v Q-COMP (2005) 178 QGIG 197 2 Garrett v WorkCover Queensland (2000) 165 QGIG 217 -- 1 of 3 -- 2 [4] The quote "are you a public patient" at paragraph [20] is not taken from the transcript. It can only have come from the form. The sentence "the answer attached was 'no'" at paragraph [21], is not derived from the transcript. The Commission must have accepted that the form showed a tick at "no". The sentence "Ms Chen said that she had had an accident at work but could not explain why the answer to the question was 'no'" at paragraph [21], makes sense only if one accepts that the answer recorded on the form was "no". Plainly, the "patient election form" has been relied upon. Yet, the form was not before the Commission. There was no legitimate basis for the adverse comments about Ms Chen's credibility at paragraph [64]. Neither is there anything in the transcript to indicate that Ms Chen obfuscated on that issue (or at all). In the course of four pages of transcript, Ms Chen said (on 12 occasions) that she could not remember the form, said on 4 occasions that she could not read English and said on 2 occasions that she did not tick the form. [5] On another occasion, a finding of obfuscation might be defended on the basis that the Commissioner heard and observed the witness. Here, the finding is not based on demeanour and, in any event, Ms Chen's evidence was taken with the assistance of an interpreter. The difficulty of relying on observation of a witness where an interpreter is used are summarised by Brereton J (with whom Manning and Else-Mitchell JJ agreed) in a now well known passage in Filios v Moreland3 at 332 to 338: "The primary consideration, especially where the witness in question is a party, is that what the witness has to say should be put before the court as fully and accurately, and as fairly and effectively, as all the circumstances permit. It may be that a witness with an imperfect understanding of English cannot achieve this by using English. It is not always the case that it will be better achieved by the use of an interpreter. For evidence given through an interpreter loses much of its impact, and this is so in spite of the expert interpretation now readily available. The jury do not really hear the witness, nor are they fully able to appreciate, for instance, the degree of conviction or uncertainty with which his evidence is given; they cannot wholly follow the nuances, inflections, quickness or hesitancy of the witness; all they have is the dispassionate and unexpressive tone of the interpreter. Moreover, even today it is all too common an experience to hear the interpreter giving the effect instead of giving the literal translation of questions and answers, and of his own accord interpolating questions and eliciting explanations. These matters may operate unfairly either to the advantage or to the disadvantage of the witness involved. Moreover, and especially where the witness has some knowledge of English, the cross-examiner is placed at a grave disadvantage. As O'Brien J. said in Burke's Case: '… it is especially important with reference to cross-examination, the great value of which arises from the demeanour of the witness, and the hesitation or fairness with which he answers questions unexpected by him, and put suddenly to him, and his demeanour while being so cross-examined is powerful with the jury to judge of the credit which they ought to give to his testimony; and it is plain that the value of this test is very much lessened in the case of a witness having a sufficient knowledge of the English language to understand the questions put by counsel, pretending ignorance of it, and gaining time to consider his answers while the interpreter is going through the useless task of interpreting the question which the witness already perfectly understands. To anyone who has been conversant with trials, whether criminal or civil, the importance of this, and the materiality of the fact as to the language in which the witness is to be examined, is so well known that it is unnecessary for me to make any further observations on it.". [Footnotes omitted.] Notwithstanding the careful argument of Counsel for the Respondent, this is not an occasion on which a finding of obfuscation may be defended on the basis of the very great advantage enjoyed by a tribunal of first instance in seeing and hearing the witness. [6] The second complaint of misapprehension or flawed recollection relates to paragraph [58] of the Commission's decision. To understand paragraph [58] one must know that Mr Chang Castillo (Ms Chen's estranged husband) was alleged by Ms Chen to have been her employer. Paragraph [58] is in the following terms: "[58] Mr Chang Castillo was certainly less than a model employer at the time of the incident. He did not have workers' compensation insurance and the record-keeping in respect of his employees did not comply with industrial and other laws. As much as the Commission cannot condone these practices, Mr Chang Castillo's credibility is not fatally determined by them. In fact Mr Chang Castillo freely made concessions in relation to these matters.". In fact, before cross-examining about taxation and superannuation issues, Counsel for Ms Chen (very properly) asked that Mr Castillo be warned. He was warned. He claimed privilege. He was entitled to do so and cannot be criticised for doing so. But it cannot be said that Mr Castillo "freely made concessions". [7] The exhibit which the Commission is said to have failed to understand is a notebook and two pages said by Ms Chen to have been torn from the book. At paragraph [63] the Commission concluded: 3 Filios v Moreland (1963) S.R. (NSW) 331 -- 2 of 3 -- 3 "[63] Added to this is her inadequate explanation for the existence of two torn pages when it is apparent on examination of the notebook that only one page could have been torn out. Examination of the two torn pages shows that it is the second page which was removed from the notebook. I do not accept that the first page, headed 6 July 2010, was originally part of the notebook. It begs the question as to why two separate notebooks of the same type would be kept for the same period and why Ms Chen would persist with her answer that both pages came from the same notebook. In this light, the Commission can only draw an adverse inference against Ms Chen.". Two pages were torn from the notebook. When the two pages put into evidence are matched with the remnants of the missing pages, a perfect match results. Ms Chen's evidence that the pages were sequential is incorrect. She was a careless witness. The pages were separated by an intact page. However, such carelessness falls short of the deceit attributed to her at paragraph [63]. In "persisting with her answer that both pages came from the same notebook", Ms Chen was telling the truth. One should note also that, it was not put to Ms Chen that she was keeping two books. [8] The effect of the Commission's errors was to erroneously inflate the credibility of Mr Castillo and to erode the credibility of Ms Chen. This is not a case in which inadequacy of reasoning leaves Ms Chen to speculate about whether her case has been properly considered. Ms Chen knows that her case has not been properly considered. The difficult issue is to determine what is to be done about the matter. Remitting the matter to be reheard involves outlays of time and money. The problem with hearing the matter on the record is that one or other of Ms Chen and Q-COMP must fail. One or other of Ms Chen or Mr Castillo will be left to reflect that because of a failure by the Commission, she or he was denied the type of hearing which is the right of every citizen. Given the time and money which has already been devoted to the case, I consider that (on balance) the proper course is to remit the matter to be heard by a different Member. [9] Because the matter is to be remitted, I have refrained from dealing with many of the matters argued on the Appeal. It would be wrong to poison the well. However, I cannot refrain from stressing that the issue is not whether Ms Chen was performing work but whether she was performing work as an employee. [10] I quash the orders made by the Commission. I remit the matter to the Commission to be heard and determined accordingly to law. Dated 16 May 2012. D.R. HALL, President. Released: 16 May 2012 Appearances: Mr J.P. Morris, instructed by Murphy Schmidt Solicitors for the Appellant. Mr P.B. Rashleigh, directly instructed for Q-COMP. -- 3 of 3 --