Etheridge Shire Council v Gardem and Q-COMP [2010] QIRC 45

CITATION: Etheridge Shire Council AND Graham Gardem and Q-COMP (WC/2010/57) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 320 - basis of decisions of the commission and magistrates Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Etheridge Shire Council AND Graham Gardem and Q-COMP (WC/2010/57) DEPUTY PRESIDENT BLOOMFIELD 16 July 2010 DECISION [1] On 8 June 2010 Etheridge Shire Council (the Council) filed an application for leave to be heard, pursuant to s. 320 of the Industrial Relations Act 1999 (the Act), in an appeal (Matter No. WC/2010/27) by Mr Graham Gardem against a decision of Q-COMP to refuse his application for workers' compensation. In its application, the Council sought the following orders and directions: "1. An order pursuant to s. 320 Industrial Relations Act 1999, that Etheridge Shire Council be permitted to be heard in the appeal by the Appellant from the review decision of the Respondent on 22 February 2010. 2. A direction that the parties provide to Etheridge Shire Council, all documents to be exchanged pursuant to s. 554 Workers' Compensation and Rehabilitation Act 2003, as though it was a party to the appeal. 3. A direction that Etheridge Shire Council provide to all parties, all documents which it intends to rely, pursuant to s. 554 Workers' Compensation and Rehabilitation Act 2003 as though it was a party to the appeal. 4. Directions that on the hearing of the appeal, Etheridge Shire Council be allowed to: (a) call evidence; (b) cross-examine the Appellant; (c) cross-examine witnesses called by the Appellant and Respondent; (d) make submissions and address the Commission on issues relating to the conduct and carriage of the appeal; (e) make submissions and address the Commission on the evidence given at the hearing and on matters of law. 5. A direction that the costs of and incidental to this Application, be reserved. 6. Such further or other orders as the Commission considers necessary.". [2] The application by the Council was heard by the Commission on 16 June 2010, when Mr Parcell, who represented the Council, presented the following written submission in support of the application: "1. The Application has been made pursuant to s. 320 Industrial Relations Act 1999. 2. The Applicant has no right to be heard in the proceedings and requires the Commission in the exercise of its discretion, to grant such a right - the discretion confirmed in a number of decisions including - BP Refinery (Bulwer Island) Ltd v Bloor (2003) 172 QGIG 1844 / Society of the Sacred Advent Schools Pty Ltd t/a St Margaret's Anglican Girls School v Sharon Lee Munn and Q-COMP (2007) 184 QGIG 15. 3. There are a number of factors the Commission ought to consider in the exercise of its discretion. 4. First, there has been no delay by the Applicant in bringing its Application - the Notice of Appeal was filed on 19 March 2010 and the Appeal has not yet been listed for hearing - there is no basis apparent to conclude granting the Applicant a right to be heard will delay the Appeal being heard - see BP Refinery (Bulwer Island) Ltd v Bloor (2003) 172 QGIG 1844, where President Hall confirms delay will always be a material consideration - conversely the absence of delay should be a factor in the Applicant's favour. -- 1 of 3 -- 2 5. Second, the Council's pecuniary interest may be directly affected if the Appellant is successful, as it may face a premium increase as a consequence of the resulting statutory claim and the door would be open to a common law claim by the Appellant, which whether or not successful would generate costs in defending it. 6. Third, the Appellant has made a number of serious allegations against the Council, past and present Councillors, officers and employees of illegal and corrupt practices related to purchasing, unspecified defalcations, rorts and malpractices, retaliatory action against him and a conspiracy to deprive him of promotion and to remove him from employment with the Council. The Council ought to be afforded the opportunity to protect its reputation, in particular, through the reputation through (sic) its past and present office holders and employees - see State of Queensland v Philip Allan Squires and WorkCover QLD (2002) 170 QGIG 20 / State of Queensland v Justine Maree Kitchenham and Q-COMP (2007) 186 QGIG 689. 7. Fourth, the Applicant has taken an active part in the determination of the Appellant's Application for Compensation and Application for Review. 8. Fifth, until the Appellant's case has fully emerged and been sufficiently particularised or defined, it is not possible to determine that the cases to be developed by the Respondent and Applicant will align. As pointed out by President Hall in Australia Meat Holdings Pty Ltd v Kennedy and Q-COMP (2006) 181 QGIG 474 - 'It would be wrong for Q-COMP to treat an employer, WorkCover or licensed self-insurer as a client and/or to accept instructions from an employer, WorkCover or a licensed self-insurer … it is plain that Q-COMP has no duty to call witnesses at the request of an employer, WorkCover or a licensed self-insurer. Neither is Q-COMP required to develop a case considered to be appropriate by an employer, WorkCover or a licensed self-insurer.'. 9. Unfortunately, until the Appellant provides particulars and documentation in support of his allegations and his Appeal, the name and number of witnesses to be called by the Applicant cannot be determined. 10. Sixth, the issue to be determined by the Commission is in essence whether the exclusionary clause in s. 32(5)(a) or s. 32(5)(b) Workers' Compensation and Rehabilitation Act 2003 has application - reasonable management action taken in a reasonable way or the worker's expectation or perception of reasonable management action being taken against the worker - this makes it quite explicable an Applicant would wish to intervene, because unlike for physical injuries, it is the very acts or omissions of the employer under direct scrutiny - see State of Queensland v Justine Maree Kitchenham and Q-COMP (2007) 186 QGIG 689.". [3] Counsel for Q-COMP, Mr Gray, submitted the present proceedings involved a number of issues such that it would be appropriate for the Commission to grant the Council leave to appear. [4] After hearing Mr Parcell expand on his written submissions and after allowing Mr Gardem to respond, in some detail, in opposition to the Council's application, I made the following statement on transcript (as edited): "I propose to exercise my discretion to allow the Council to appear in the proceedings essentially in the manner applied for in paragraph 4, and I'll come back to that in a moment. I will issue a short decision in the next few weeks setting out the reasons why have decided to allow the Council to appear. That decision will highlight that the types of things the Council wishes to appear and to respond to are very much at the forefront of your case Mr Gardem. You've indicated today on a couple of occasions, for example, that part of the case that you'll run is that people were, to use your words, 'putting their hand in the till' or 'their relatives were putting their hand in the till', and your concluding remarks were along the lines that the people involved were - by their actions seeking to perpetuate their right to have their hands in the till. Now all of those things are very serious accusations which I think the Council has a right to come and defend itself against, and that's quite apart from the direct implications arising out of your application which go to the monetary aspects which are highlighted in Mr Parcell's submissions. As I said, I'll put out a more considered decision setting out the reasons why I propose to exercise my discretion under section 320 of the Industrial Relations Act to allow the Council to appear. The Council are now 'a party' to the proceedings, but I'm never sure whether it's better to describe them as a 'party' or a 'participant'. I just want to come back to paragraph 4 of the Council's Application. I won't grant you a general right, Mr Parcell, on behalf of the Council, to cross-examine witnesses called by Q-Comp. I will consider a request that might be made to cross-examine Q-Comp witnesses at the time and the nature of the cross-examination would need to be spelt out so that we make sure that there are no Dorothy Dix type questions asked in an attempt to get evidence into the proceedings. -- 2 of 3 -- 3 So, each time you seek - or your counsel, if you're going to brief counsel - seeks to cross-examine a witness called by Q-COMP I'd need to be informed of the nature of the proposed cross-examination and I will make a ruling at that time. Other than that limitation, I propose to grant all the other things which you're seeking in your application.". Reasons for Decision [5] Mr Parcell's written submission succinctly records the types of matters traditionally considered by the Commission, or an Industrial Magistrate, in deciding whether or not to exercise the discretion available at s. 320 of the Act to allow an employer party the right to be heard in proceedings of this type. Included in the matters normally considered are the employer's pecuniary interests (see paragraph 5 of submissions) as well as the fact that Q-COMP, as the Respondent, is not required to develop its case to satisfy the desires of the employer (see paragraph 8 of submissions). Both of these factors are especially relevant in the present proceedings. [6] An additional feature which supports an exercise of discretion in the Council's favour in these proceedings is the very serious allegations made by Mr Gardem in relation to the activities of the Council, past and present Councillors and employees of the Council concerning alleged illegal and corrupt practices. [7] In my considered view, the Council should be allowed the opportunity to participate in the proceedings not only in relation to matters which might affect its pecuniary interest and the like but also to defend itself - as well as past and present Councillors, Officers and employees - in relation to the serious allegations which Mr Gardem has already made and intends to develop more fully during the course of the Appeal process. [8] Further, the nature and degree of matters which Mr Gardem has indicated he intends to canvass during the course of the Appeal are so wide-ranging that there is the risk that Council's reputation (and/or that of its past and present Councillors and employees) might be irrevocably damaged if some opportunity is not presented to the Council to cross-examine Mr Gardem and/or his witnesses and/or lead evidence in relation to his allegations. In this respect, I have expressly informed Mr Gardem on several occasions that I will not allow the proceedings to develop into a "Commission of Inquiry" into the activities of the Etheridge Shire Council. However some issues which will have a potential impact upon the Council, past and present Councillors, Officers and employees will, nonetheless, still be raised. It would be completely unfair to those against whom serious accusations are made not to be afforded (at least) the opportunity to respond to any such allegations Mr Gardem might make - either through the opportunity to cross-examine him and/or by calling their own evidence. [9] It was for the above reasons, including the brief comments made on transcript on 16 June 2010, that I decided Etheridge Shire Council should be permitted leave to be heard in the Appeal by Mr Gardem, subject to one small modification concerning its ability to cross-examine witnesses called by Q-COMP. On that point, I indicated to Mr Parcell that I would amend his proposed Order to only allow the Council to cross-examine witnesses called by the Respondent (Q-COMP) by leave of the Commission. [10] For the foregoing reasons I grant the Council leave to be allowed to: (a) call evidence; (b) cross-examine the Appellant; (c) cross-examine witnesses called by the Appellant; (d) by leave of the Commission, cross-examine witnesses called by the Respondent; (e) make submissions and address the Commission on issues relating to the conduct and carriage of the appeal; and (f) make submissions and address the Commission on the evidence given at the hearing and on matters of law. [11] I reserve the issue of Council's costs of, and incidental to, this application as well as the Appeal proceedings general. [12] I determine and order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2010 16 June Released: 16 July 2010 Appearances: Mr R. Parcell of Bradleys Lawyers for the Applicant. Mr G. Gardem, the First Respondent, on his own behalf. Mr S. Gray (Counsel) directly instructed by Ms C. Godfrey (Q- COMP) for the Second Respondent. -- 3 of 3 --