Cameron v Q-COMP [2011] ICQ 19

CITATION: Jennifer Cameron AND Q-COMP (C/2011/24) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 282 - case stated to court Jennifer Cameron AND Q-COMP (C/2011/24) PRESIDENT HALL 29 June 2011 DECISION [1] Ms Jennifer Cameron lodged an Application for Compensation under the Workers' Compensation and Rehabilitation Act 2003, on 8 July 2009. By Reasons for Decision dated 24 August 2009, WorkCover Queensland (WorkCover) advised Ms Cameron that WorkCover had decided that the Application should be rejected. There was a Statutory Review. By a Decision dated 30 March 2010, Q-COMP confirmed WorkCover's decision. Ms Cameron appealed to the Queensland Industrial Relations Commission (the Commission). Difficulties have arisen about the Commission's capacity to take evidence by video link and/or by telephone. It is proposed that evidence be taken from two Queensland-based medical witnesses by telephone. Two non-expert witnesses are located overseas. The Respondent seeks to take evidence by telephone in one case and video link in the other case. On 30 May 2011, the Commission Stated a Case for the opinion of the Court. The questions of law stated were: "1. Is the Queensland Industrial Relations Commission a 'court' for the purposes of Part 3A and section 39C of the Evidence Act 1977 (Qld)? 2. Does the Queensland Industrial Relations Commission have power, under section 39R of the Evidence Act 1977, to order and hear evidence by telephone and video link? 3. Does the Queensland Industrial Relations Commission otherwise have power under the provisions of the Industrial Relations Act 1999 or the Industrial Relations (Tribunals) Rules 2000 to order and hear evidence by telephone and video link?". [2] On 23 June 2011, the Commission restated the questions of law for the opinion of the Court. As restated the questions were: "1. Does the Queensland Industrial Relations Commission have power to hear the evidence of the witnesses in the way proposed by virtue of:- (a) the Industrial Relations Act 1999 (Qld) and the Industrial Relations (Tribunals) Rules 2000; (b) the Workers' Compensation and Rehabilitation Act 2003 (Qld); (c) the Evidence Act 1977; (d) any other power that the Commission may have. 2. If the answer to the first question is yes: (a) In such circumstances would the Commissioner, advocates and witnesses have the same immunity from suit such as they would have if the witness was located in Queensland; (b) In such circumstances does the Industrial Court of Queensland and/or the Commission have power over the proceedings in respect of a witness giving evidence from a location overseas to administer an oath, sanction for contempt, and to direct the proceedings.". [3] The taking of evidence from interstate and overseas witnesses is expressly dealt with by ss. 39E and 39R of the Evidence Act 1977. Sections 39E and 39R are located in Part 3A of that Act. Section 39C provides definitions for Part 3A. Materially, s. 39C defines "Queensland Court" to mean: "(a) the Supreme Court, the District Court or a Magistrates Court; or (b) the Coroners Court; or (c) another court established under an Act; or -- 1 of 3 -- 2 (d) another tribunal declared under a regulation to be a court for this part.". [4] A "court of record" means, inter alia a court expressly declared by statute to be so, compare Cooper and Sons v Dawson1 at 392 to 393 per Madden CJ. Section 255 of the Industrial Relations Act 1999 provides that the Commission as formerly established as a court of record, is continued in existence. By s. 36 of the Acts Interpretation Act 1954, "establish" inter alia, includes constitute and continue in existence. It follows that prima facie, the Commission is a "court of record" and a "Queensland Court" for the purposes of Part 3A of the Evidence Act 1977. [5] I quite accept that a statutory description of a tribunal as a court of record does not have the effect that the tribunal is a court of record for all purposes. Here for example, given the terms of s. 251 of the Industrial Relations Act 1999, vesting this Court with the power to deal with contempt and the absence of a comparable investiture of power in the Commission and given that s. 660 of the Industrial Relations Act 1999 operates to make many forms of contempt of the Commission an offence against the Act, it would be difficult to contend that the Commission had the powers of a Court of record in respect of contempt. More generally, it may be doubted that s. 255 of the Industrial Relations Act 1999 enlarges the jurisdiction of the Commission to reach matters neither within the Commission's express powers nor incidental thereto. However, there is nothing to suggest that the remedial provisions of the Evidence Act 1977 are not to apply to the Commission. Indeed, there is some commentary to suggest that such a conclusion would be remarkable; compare Helm v Hansely Holdings Pty Ltd (In liq)2 at paragraphs 9 and 10 and The Bell Group Ltd (In liq) v Westpac Banking Corporation and Anor (4)3 at paragraph 35 per Owen J. Further, it would be incongruous if the Commission, exercising judicial power, had not the powers of the Coroner's Court exercising administrative power. It may well be, as Counsel for the Respondent suggests, that the Queensland Civil and Administrative Tribunal (QCAT) has been declared a court for the purposes of the Evidence Act 1977 because, unlike members of the Commission, members of QCAT largely do not enjoy tenure; compare Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania)4. As a matter of comity, it seems to me preferable to observe that, the making of such a regulation by those exercising administrative power, impacts not at all on the issues of statutory construction that arise in determining whether the Commission is a "court of record" for the purposes of the Evidence Act 1977. [6] For those reasons advanced at [5] above, Question 1(c) should be answered in the affirmative. Questions 1(a), (b) and (d), should not be answered. The questions are hypothetical. I fully recognise that s. 39B(2) of the Evidence Act 1977 provides: "(2) This part does not limit any law of the State that makes provision for - (a) the use of audio visual links or audio links; or (b) the taking of evidence, or the making of submissions, in or outside the State for the purpose of a proceeding in the State.". The legislation and subordinate legislation referred to at Questions 1(a), (b) and (d) does not provide for the matters at s. 39B(2). At best, the measures identified allow for the making of directions about the matters at s. 39B(2) in a particular case. One might speculate endlessly about circumstances in which it would be appropriate for the Commission to depart from the regime imposed by the Evidence Act 1977 to establish a singular regime in a particular case. It is not the purpose of s. 282 of the Industrial Relations Act 1999 to arm the Court with authority to publish such a treatise. Section 282 is designed to allow the opinion of the Court to be had on a question of law germane to the disposition of a particular case. [7] Neither, in my view, should Question 3 be answered, other than by identifying the relevant provisions of the Evidence Act 1977. Doubtless, the questions go to the exercise of discretions under the Evidence Act 1977. This Court should not exercise its authority under s. 282 of the Industrial Relations Act 1999 to direct the Commission as to the exercise of the Commission's discretion where the factual matters relevant to the exercise of the discretion are yet to be found. In particular, it would be wrong to generalise about "sanctions for contempt" before a putative defendant is identified and given a right to be heard. [8] Question 2 should not be answered. This Court has no jurisdiction in such matters. Any opinion provided by the Court would be mischievous. Any utility which the opinion might have would be limited to the exercise of the Commission's discretion. The Court has not been given facts to which to apply the law. Any answer to the questions would be about alternative scenarios. 1 Cooper and Sons v Dawson [1916] VLR 381 2 Helm v Hansely Holdings Pty Ltd (In liq) [1999] WASCA 71 3 The Bell Group Ltd (In liq) v Westpac Banking Corporation and Anor (4) (2004] WASC 162 4 Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104 -- 2 of 3 -- 3 [9] Question 1(a) is not answered. Question 1(b) is not answered. Question 1(c) is answered in the affirmative. Question 1(d) is not answered. Question 2 is not answered. Question 3 has an answer to be found in the application of Part 3, Division 4 of the Evidence Act 1977 to facts as found by the Commission in a particular case. Dated 29 June 2011. D.R. HALL, President. Released: 29 June 2011 Appearances: Ms A. Milner of Milner Lawyers for the Appellant. Mr P.B. O'Neill, directly instructed for Q-COMP. -- 3 of 3 --