Cameron v Q-COMP [2011] ICQ 27

CITATION: Graham Cameron AND Q-COMP (C/2011/22) - 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 magistrate Graham Cameron AND Q-COMP (C/2011/22) PRESIDENT HALL 4 October 2011 DECISION [1] The Appellant, formerly a serving Police Officer, lodged a claim for workers compensation benefits on 30 January 2008. By a letter dated 2 April 2008, WorkCover Queensland rejected the Application and provided the Appellant with reasons for that decision. The Appellant sought a Statutory Review. By a decision dated 25 August 2008, Q-COMP confirmed the decision of WorkCover Queensland. The Appellant appealed to the Industrial Magistrates Court at Southport. By a decision dated 21 March 2011, the Acting Industrial Magistrate into whose hands the matter had fallen, dismissed the Appeal. The Appellant now Appeals to this Court. The (Amended) Grounds of Appeal are: "1.1 The learned Magistrate failed to provide or give any or any sufficient or adequate reason with respect to his finding so made on the 21 st day of March 2011 in appeal No. 20723 of 2008. 1.2 The learned Magistrate, in particular - (i) has not made proper findings of fact upon which conclusions are based; (ii) has not identified the reasoning process having regard to the evidence which led him to the conclusion so reached; (iii) has not referred to relevant evidence in support of the conclusion so reached; (iv) has failed to set out the material findings of fact and conclusions together with the ultimate findings of fact reached.". [2] An Industrial Magistrate determining an appeal under the Workers' Compensation and Rehabilitation Act 2003 (the Act) is required to act judicially. An element of that requirement is an obligation to provide reasons for making any relevant findings and conclusions and, where evidence has been rejected or not acted upon, to explain the basis for so doing. A reason for the rule is to enable the vanquished party to understand why s/he has lost and to evaluate the prospects of an appeal being successful; compare Beale v Government Insurance Office NSW1 at 431 per Mason P and at 443 to 444 per Meagher JA; Wiki v Atlantis Relocations (NSW) Pty Ltd2 at 136 to 136 per Ipp JA; Martin v Rowling and Anor3 at [80] per Mullins J; and Drew v Makita (Australia) Pty Ltd4 at [57] per Muir JA. Another rationale is that the duty to give reasons is an aspect of the judicial function, Wainohu v New South Wales5 at 766 to 767 per French CJ and Kiefel J. Importantly, the duty to act judicially, including the requirement to provide adequate reasons, arises independently of legislative requirement*, see Burns v Australian National University6. Failure to discharge the duty is an error of law, see Soulemezis v Dudley (Holdings) Pty Ltd7 at 281 per McHugh JA. [*This case does not raise legislative abrogation of the duty.] [3] It is, however, important for an appeal court to refrain from undue ebullience in seeking-out error in decisions written under the pressure of other work and after lengthy trials. I adhere to the view expressed by this Court in Cunningham and Others (Flower and Hart) v William Hamilton Hart8, viz: "… However, I accept that the Court should not be overly enthusiastic to seek out error. Cases abound in which the need for caution and restraint have been emphasised. It is convenient to commence with the observations of Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444: 'It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw 1 Beale v Government Insurance Office NSW (1997) 48 NSWLR 430 2 Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 3 Martin v Rowling and Anor (2005) QCA 128 4 Drew v Makita (Australia) Pty Ltd (2009) QCA 66 5 Wainohu v New South Wales (2011) 85 ALJR 746 6 Burns v Australian National University (1982) 40 ALR 707 7 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 8 Cunningham and Others (Flower and Hart) v William Hamilton Hart (2009) 190 QGIG 126 -- 1 of 6 -- 2 up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.'. Over twenty years later, the nuances of meaning carried by the colourful phrase, 'miscarriage of justice', render the passage less helpful than it once was. However, the more moderate formulation in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, viz.: 'This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).', continues to be helpful. The observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1990) 185 CLR at 273, are to the same effect. Footnotes omitted, the passage is: 'These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.'. See also Fisse v Secretary, Department of the Treasury [2008] FCAFC 188 at 36 per Buchanan J and Queensland Teachers Union of Employees v Department of Education (2000) 165 QGIG 767 at 769.". [4] In this case, in evaluating the adequacy of the Acting Industrial Magistrate's reasoning, it is important to recognise the nature of and the inherent difficulty of the case which the Appellant sought to make at first instance. The Statement attached to the Appellant's Application for Compensation* was in the following terms: "I am providing a statement in relation to my Application for Compensation for a psychological condition that I believe arose from my employment with the Queensland Police Service from 2005. I believe I have been subject to victimisation, bullying, harassment, humiliation and discrimination by senior officers at the service. Allegations: Occasion 1: On 4 August 2005, I was requested to attend a nightclub at Coolangatta (as accompanied by Josh Elliott and Brandon James) and harass the nominee by Jim KEOGH. I considered this direction as given to be unlawful and it made me feel uncomfortable. I was advised by Jim KEOGH at the time that this nightclub was in direct competition with his mates' hotel. This made me doubt the ethics of my superior and his motivation for sending me to do this. Occasion 2: On 21 February 2006, I was placed in a difficult position when I was directed to flog a prisoner in the Southport Watchhouse [sic] by Jim KEOGH as a solo person. I had no involvement with this person prior to this. I elected to take company with me (Luke Flood), which was against the orders of Jim KEOGH. I also advised another detective (Darren Parker) of the direction given by Jim KEOGH. Darren PARKER wanted nothing to do with it and went sick. The prisoner was spoken to by myself and Luke FLOOD, and he appeared to have a valid argument. He was a reasonable man and no assault took place at any time. I since ascertained that this man was a professional boxer who had some 26 professional fights. This made me wonder about whether Jim KEOGH was setting me up to be injured or setting me up for disciplinary action. Occasion 3: Over period 27 December 2006 to 21 May 2007, Jim KEOGH made threats to me of a transfer whilst I was on light duties for prolapsed disc in my back. These were reported to Acting Detective Senior Sergeant Mick BOLIN. -- 2 of 6 -- 3 Also during that time, Justin PERCIVAL (Acting Detective Senior Sergeant) grabbed me by the throat and held me against a filing cabinet when I questioned a shift change. I felt humiliated and quite worried about my personal safety. Trigger: On 11 August 2007, I returned from sick leave for my back (non work-related) on full duties. Up until I went off work on rec leave on 22 September 2007, a series of incidents occurred which I believe are the most significant factors in my current psychological state. Some of these were: (a) I was incorrectly accused of punching a hole in the wall by Acting Inspector Marc HOGAN. (b) I was sent to execute a search warrant upon a standover man which was inappropriate, given my incapacity with my right thumb (see claim SO7CD503209). My injury was well-known to my supervisors. (c) I was accused of sending an inappropriate email to another officer. I was in New South Wales when the incident happened and it was later discovered that another person had sent the inappropriate email. The effects of the incidents of 2005, 2006 and August 2007 were changes in my personality, loss of all confidence in my own performance and that of my supervisors' abilities to manage staff. It has also had a major effect on my personal relationships, to the extent that my partner of 6 years has left me. I haven't been able to sleep, experience constant feelings of anger. I prefer not to leave the house and avoid social interaction. I have increased my alcohol and food consumption, and have put on weight by 15kgs. I have developed a nervous tick when discussing these matters, and my memory is scattered. I first saw psychologist Debbie Mooney (PH: XXXX XXXX) on 15 October 2007 at the recommendation of my doctor (Dr Carlyle) as he had become concerned with my wellbeing. I was subsequently referred to psychiatrist Dr Boulnois (PH: XXXX XXXX) by my doctor, as he considered that I needed more intensive treatment. My first consultation with Dr Boulnois was on 8 November 2007. I am now taking prescribed medication such as Dothep and Lexipro. This is a very condensed version of numerous incidents, and further documentation (which has been supplied to the Crime and Misconduct Commission) can be provided to supplement my allegations.". [*I hasten to add that at first instance, the Appellant was permitted to give evidence of additional stressors, and did so.] [5] The allegations were pursued at trial. They involved accusations of serious wrongdoing. The Appellant was required to make out a case to the civil standard, i.e. on the balance of probabilities. However, the gravity of the allegations went to the degree of probability required to induce reasonable satisfaction of the mind, compare Briginshaw v Briginshaw9 at 350 per Rich J and 362 to 363 per Dixon J and Hornal v Neuberger Products Ltd10 at 266 per Morris LJ. In particular, the allegations enable one to understand why it was that the Acting Industrial Magistrate sought for corroboration. In fairness to the Acting Industrial Magistrate, I should also record that His Honour did form an adverse view of the Appellant's honesty as a witness. His Honour found that the Appellant exaggerated and glossed incidents of little moment. That conclusion infects the treatment of the Appellant's uncorroborated evidence. [6] Further, one can understand a tribunal of first instance being reluctant to republish evidence on which it is not prepared to rely, for risk of injury to the reputation of persons against whom adverse findings are not to be made. Particularly is that comment true of an allegation (not raised in the Statement attached to the Application for Compensation) of sexual impropriety by another Police Officer, which was said to be relevant to the assessment of that Officer's character. Of this evidence, the Acting Industrial magistrate said merely: "… I'm certainly of the opinion that this is entirely irrelevant and nothing other than muck raking and part of a shot gun approach that if enough muck is thrown, some of it will stick. I find it to be scandalous and irrelevant.". In my view, no further elaboration of the evidence and of His Honour's reasons for declining to act upon it, was necessary. The opportunity to elaborate was wisely avoided. [7] I accept the Acting Industrial Magistrate's summary of the Appellant's case. In short form, the Appellant's case was that over a period of time, whilst he was a Detective Senior Constable in the Queensland Police Service (QPS) based at Southern Investigative Group at Burleigh Heads, he was subjected to harassment and bullying 9 Briginshaw v Briginshaw (1938) 60 CLR 33 10 Hornal v Neuberger Products Ltd [1957] 1 QB 247 -- 3 of 6 -- 4 which caused him to decompensate. Against that background, the Appellant complains that the Acting Industrial Magistrate erred in summarising the stressful incidents and workplace behaviours in that: "15. The Acting Industrial Magistrate identified stressors that could be categorised into those groups that are referred to above. In categorising each of the stressors the Acting Industrial Magistrate provided a recitation in 'story form' of the evidence. (See - Decision Record T.4 - 3 (Occasions 1 and 2), see Decision Record T. 4 - 4 (Occasion 3 and 'trigger'.).". With respect, the Industrial Magistrate did not author a "recitation in story form". The Acting Industrial Magistrate summarised the Appellant's case by reproducing the Statement attached to the Appellant's Application for Compensation; i.e. the Acting Industrial Magistrate took the very step taken at [4] above. The Appellant was the originator of all that appeared. [8] The trenchant criticism of the Acting Industrial Magistrate's observations about the Baja Nightclub incident, is misplaced. The criticism is that the Acting Industrial Magistrate failed to identify with precision the evidence which His Honour accepted (and/why), the evidence which His Honour rejected, why some evidence was accepted and some rejected and how His Honour's conclusions were drawn from the evidence which was accepted. In fact, His Honour did review the evidence. His Honour was left with an allegation by the Appellant of an instruction to participate in very serious wrongdoing and the evidence of other serving Police Officers in the vicinity who had heard nothing untoward. I accept that Detective James said with reference to the Appellant's version of the conversation between Inspector Keogh and the Appellant, "I'm not saying that he didn't say that". However, Detective James also claimed not to hear the conversation. Without the advantage of seeing and hearing Detective James give evidence and relying solely on the transcript, it seems to me that Detective James simply did not wish to have any involvement in the controversy. In any event, he gave no evidence upon which the Acting Industrial Magistrate might reasonably act. Given the nature of the Appellant's allegations and the paucity of evidence, I can well understand why the Acting Industrial Magistrate was unable affirmatively accept that the allegations had been made out. I can also understand why it was His Honour was unwilling to churn the unconvincing evidence. [9] I turn to the allegation about flogging a prisoner. The prisoner was not flogged. Inspector Keogh, who knew that the prisoner had not been flogged, did not remonstrate with the Appellant. As to the Appellant's claim that a Detective Parker went home sick to avoid participation, Detective Parker gave evidence (a) that he did not go home sick and (b) that if he had gone home sick he would have noted the matter in his police diary (which contained no such note). I accept that Detective Parker omitted to record his log-off time in his diary. The evidence was that he failed to do so on other occasions. It must be remembered that the Appeal is about the Acting Industrial Magistrate's reasons. The Grounds of Appeal going to the correctness of his Honour's conclusions have been abandoned. His Honour did sketch the evidence and was fully aware (a) that the allegation was denied, (b) that no evidence was given in support of the Appellant's evidence by any other witness and (c) that, whilst the Appellant's claim to have met with the prisoner at Inspector Keogh's request was corroborated, the instruction to flog the prisoner was not corroborated. One may understand how the Acting Industrial Magistrate came to say: "Mr Cameron, in his claim, in regards to both the Baja nightclub and the flogging of the prisoner Walker states that then Detective Inspector Keogh instructed him to act outside the law. Yet, in relation to each occasion, his evidence was that he disobeyed the direction given to him by Keogh but after having completed the task he reported back to Keogh and nowhere in his evidence did he say there was any sanction imposed by Keogh for his disobedience of the instructions given.". [10] The Appellant alleged that Inspector Keogh had harassed him about transferring from Southern Investigative Group at Burleigh Heads to Northern Investigative Group at Surfer's Paradise. The Acting Industrial Magistrate gave an apparently convincing reason for rejecting the claim, viz., during a period when Inspector Keogh had authority to implement such a transfer no such transfer occurred. One may understand that having reached that conclusion His Honour omitted to deal with the Appellant's evidence about how adversely the prospect of a transfer affected him. [11] The allegation that the Appellant had sent an offensive email to another Officer, was found to be false. However, on the basis of evidence marshalled up in the judgment and capable of supporting the conclusion, the Acting Industrial Magistrate concluded that the email had been sent by an Officer other than the Appellant who, with the Appellant, had embarked on harassment of the recipient. The Acting Industrial Magistrate further concluded that, if the Appellant did not know of the email, he condoned what had been done. The conclusion was reasonably open. [12] The evidence concerning the Carrara Bike Show and the service of a warrant on a gentleman alleged by the Appellant to be a "stand-over man", showed inadequacy in the filing of information about fitness for work and the sharing of that information. The evidence also showed that once the Appellant and Detective Krebs made -- 4 of 6 -- 5 known their difficulties, Acting Detective Inspector Hogan acted promptly to resolve the difficulties. Unlike the Acting Industrial Magistrate, I consider that the evidence did go to management issues (although amounting to no more than blemishes). However, the important point is that over some pages, the Acting Industrial Magistrate displays an understanding of the (often conflicting) evidence of quite a number of witnesses, pulls together discordant elements and exposes how it was that His Honour came to reject the case sought to be made by the Appellant. [13] As to the allegations raised at the hearing about the issue and execution of warrants, the Acting Industrial Magistrate did indicate why it was that His Honour did not act on the evidence, viz., no Officer other than the Appellant gave evidence to support the allegations. [14] I accept the Acting Industrial Magistrate erred in finding that in oral evidence, Detective Krebs recanted an allegation in his affidavit that another Officer (Percival) had assaulted the Appellant. I accept also that in dealing with an allegation that the Appellant had damaged a wall at the Burleigh Heads Station, the Acting Industrial Magistrate misunderstood the Appellant's evidence. The Appellant did not seek to confuse the incident with an earlier incident in which a wall had been damaged in a cricket game. The Appellant's point was that the cricket damage had been concealed for years and that the "new" hole in the wall might be in the same category. However, on the Amended Grounds of Appeal, in relation to both matters, the important point is that the Acting Industrial Magistrate has been so explicit that His Honour's errors may be identified. [15] By an Amended Outline of Submissions lodged on 23 September 2011, Counsel for the Appellant contends: "28A. Further his Honour said (t. 4 - 19 11. 40 - 60) - 'The appellant's ultimate complaint was his move from SIG to NIG. He said that he was called into the office by Hogan and that Bolin was present. He recalls that Hogan was saying something - that he would have more opportunity for rehabilitation in NIG than in SIG. An argument ensured [sic] … Much was made of natural justice and whether Cameron had been heard on whether he should be moved… Cameron said the discussion got quite heated … Hogan's version is - that when Cameron came in he tried to talk to him about there being more opportunities in NIG for him to perform rehab in non-operational areas than in SIG - he said Cameron told him to "get fucked" at which point he said Cameron should not speak to him like that … I accept the version provided by Hogan (t. 4 - 20 11.1 - 20) … I am of the opinion natural justice was applied and he was given the opportunity to be heard. The sum total of it was "get fucked".' 28B. For reasons that have been identified in the 'Chronology' (pp. 8 & 9) it is submitted the evidence is not that as reflected in the Magistrate's decision and at the same time, natural justice was not afforded to Cameron; See Aigner v. Q-COMP (Industrial Court of Qld) (C/2011/2, 16.5.11).". Whilst I doubt that the issues raised fall within the (Amended) Grounds of Appeal, I am content to deal with the issues. [16] I do not resile from the discussion in Aigner v Q-COMP11 (Aigner) about the importance of consultation about transfers. Further, notwithstanding the evidence of Ms Harris, the Human Resources Manager for the South-East Region of the Queensland Police Service, that successful applicants for CIB positions in the Gold Coast District are explicitly appointed on the basis that they may be required to serve anywhere within the District, I consider it to be arguable that an intra-District transfer attracts the decision of Aigner. (In fairness, Ms Harris agreed in cross-examination that an intra-District transfer without consultation would be "pretty ordinary".) However, there is an important difference between this case and Aigner. In Aigner, the Respondent failed to lead sufficient evidence to put s. 32(5)(a) of the Act in issue. Here, Acting Detective Inspector Hogan gave evidence that his attempt to explain the transfer to the Appellant ended in acrimony with the Appellant becoming irate and directing foul language at Hogan. Hogan's evidence was that he told the Appellant to leave. In fact, the Appellant left never to return. It was open to the Acting Industrial Magistrate to accept Hogan's evidence (as His Honour did). On that evidence, the conclusion; "I'm of the opinion that natural justice was applied. He was given the opportunity to be heard, and he was heard. The sum total of it was, 'get fucked'.", was plainly open. The Respondent had not merely raised s. 32(5)(a) of the Act. The Respondent had won the joust. And the Acting Industrial Magistrate had fully exposed His Honour's reasons. 11 Elizabeth Aigner AND Q-COMP(C/2011/2) - Decision <http://www.qirc.qld.gov.au> -- 5 of 6 -- 6 [17] For the above reasons, I am not persuaded that the grounds pleaded by the Amended Application to Appeal have been made out. I dismiss the Appeal. I reserve all questions about costs. Dated 4 October 2011. D.R. HALL, President. Released: 4 October 2011 Appearances: Mr R.J. Clutterbuck instructed by Gabriel Ruddy & Garrett Solicitors for the Appellant. Mr P.B. Rashleigh directly instructed for Q-COMP. -- 6 of 6 --