Coombes v Q-COMP [2008] QIRC 16 (2008) 187 QGIG 91

[Extract from Queensland Government Industrial Gazette, Dated 22 February 2008, Vol. 187, No. 6, pages 91-94] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal against a decision of the review unit Briony June Coombes AND Q-COMP (WC/2006/75) DEPUTY PRESIDENT BLOOMFIELD 15 February 2008 Appeal against a decision of the Review Unit, Q-COMP - Application by employer for leave to be heard - Application opposed - Relevant considerations regarding application for leave - Potential for prejudice - Application for leave granted. DECISION This decision relates to an application by IPA Personnel Pty Ltd (IPA) for an order pursuant to s. 320 of the Industrial Relations Act 1999 (the Act) that it be permitted to be heard in the matter of an appeal by Ms Briony June Coombes (the Worker) against a decision of the Review Unit, Q-COMP (Q-COMP), dated 26 September 2006. This decision reversed an earlier decision by WorkCover which had approved an application for workers' compensation from the Worker for a psychiatric/psychological injury which occurred during her period of employment with IPA. The injury was attributed to "workplace bullying and sexual harassment". The application for leave to be heard is opposed by Counsel representing Ms Coombes. Counsel for Q-COMP neither consents to nor opposes the application for leave to be heard, noting that it is a matter for the Commission's discretion. Matter number WC/2006/75 has had an extensive history. After a six day hearing in Townsville in June and July 2007 a decision was issued (now published at 185 QGIG 331) which dismissed the Worker's appeal. That decision was appealed to the Industrial Court which quashed the original decision (see 186 QGIG 680) and remitted the matter back to the Queensland Industrial Relations Commission to hear and determine according to law. Whilst IPA did not appear in the original proceedings in this Commission it now seeks to be heard, and to take an active role, for several reasons. Firstly, IPA is concerned about the impact on its workers' compensation premiums if there is an adverse decision against the Review Unit's decision. Secondly, IPA is concerned about the impact an adverse decision will have on its reputation in the market place. Thirdly, IPA wishes to take an active role in the fresh appeal hearing because it has received advice to the effect that Q-COMP, the original respondent to the Worker's appeal, does not wish to actively participate in the rehearing of the appeal. Mr C. Burrell, General Counsel, who represented IPA noted that IPA does not have a statutory right to appear in the proceedings and requires the Commission to exercise its discretion to grant it leave to be heard. Moreover, there is no set criteria to be applied to the granting of an application to be heard, save for s. 320 of the Act. Mr Burrell also noted that the Commission, when deciding similar applications to that made by IPA, has considered several key issues such as: the nature of the injury; whether the interests of a party will be affected by an adverse decision; pecuniary penalty considerations; and, delay and/or time factors. Mr Burrell's written submissions addressed these key points. In draft directions tendered to the Commission Mr Burrell also sought that IPA be permitted to:  call evidence;  cross-examine the Appellant;  cross-examine witnesses called by the Appellant; and  make submissions. Mr T.D. Betts, Counsel for the Worker, strongly opposed IPA's submissions for leave to be heard in the Worker's appeal. In doing so he traced the extensive history of the matter, briefly referred to above, and noted that IPA had not seen fit to be involved in the earlier proceedings but now sought to become involved, at the death as it were, in circumstances where the rehearing could potentially be resolved by consent between the Worker and Q-COMP, or alternatively be significantly curtailed and narrowed (with cost savings to the Worker). Instead, IPA now wished to intervene and effectively "rehash" the same arguments run by Q-COMP in the earlier proceedings. Mr Betts said that the first argument which IPA wished to run, namely lack of connection between the Worker's injury and her work, was overwhelmingly opposed by the medical evidence revealed in the earlier proceedings, as detailed in the Worker's appeal outline provided to the President in the appeal proceedings mentioned above. He said that there was ample evidence to suggest that the workplace was not only a significant contributing factor but was the significant -- 1 of 3 -- 2 contributing factor. As such, he said, IPA's proposed argument had little, if any, prospect of success. He also said that the proposed argument that the Worker's manager's actions constituted reasonable management action was unlikely to succeed given the performance of that manager in the witness box in the earlier proceedings. Whilst the Commissioner who heard that matter had failed to provide adequate reasons for his decision he had, nonetheless, taken pains to observe that the manager was a poor witness, Mr Betts said. Essentially, however, Mr Betts highlighted the prejudice which would result if the Worker was required to fund yet another appeal proceeding when the likelihood, he argued, was that she would, based upon what had transpired in the earlier Commission proceedings and in the appeal in the Industrial Court, succeed in her current appeal. In his very helpful submissions to the Commission Mr P.B. O'Neill, who represented Q-COMP, informed the Commission that whilst IPA had not appeared in the earlier proceedings it had, nonetheless, provided significant assistance to Q-COMP in the preparation of its case. He also indicated that even if Q-COMP decided at some point it would prefer to settle the matter with the Worker, taking into consideration commercial considerations and other factors, that decision could not be made without reference to the employer concerned. For that reason, Mr O'Neill said, Q-COMP would be appearing in the appeal proceedings if leave was granted to IPA, but would not be taking an active role. It would leave the issue of examination and cross-examination of witnesses to Counsel representing IPA and would merely seek to protect its own interests. There would thus be no, or very limited, duplication in the questioning of witnesses or in the presentation of submissions. After considering the competing arguments most carefully I have decided that fairness dictates that this is an appropriate case in which I should exercise my discretion to grant leave to IPA to appear in the appeal proceedings. I have made this decision for several reasons. Firstly, whilst the Worker and Q-COMP have already expended six days of time, effort and expense in the earlier proceedings the outcome of those proceedings has been quashed. The Commission as presently constituted is not entitled to take into consideration anything which occurred in the course of those proceedings in deciding this present application for leave to be heard. Secondly, IPA now seeks to defend its interests in circumstances where, previously, it was assisting the Review Unit of Q- COMP which had a statutory responsibility to defend its decision. Those interests are separate and distinct (see State of Queensland v Squires and WorkCover Queensland ((2002) 170 QGIG 20 at 20). Thirdly, if IPA is denied leave to be heard and the case proceeds to trial, IPA would not be able to appeal any decision which might uphold the Worker's appeal against the Review Unit's 26 September 2006 decision. Fourthly, IPA is vitally interested in the outcome of the Worker's appeal in that a successful appeal may impact upon its workers' compensation premium levels and its reputation, as well as the reputation of individual employees employed by it. These are both matters of peculiar interest to IPA and deserve to be given considerable weight in any application for leave to be heard. They are also matters of little, or no, interest to Q-COMP (see Squires supra). Fifthly, the Commission is not entitled to assume that the Worker's appeal will be settled if leave is not granted to IPA to be heard. Whilst it is clearly a possibility it is not a certainty. As a consequence, the Commission must assume that there will be a hearing of the Worker's appeal against the original Q-COMP decision. Given that all of the evidence must be heard afresh, the length of any fresh trial is unlikely to be altered because IPA is permitted to appear. This is because IPA will assume primary responsibility for the case in opposition to the Worker's appeal in lieu of Q-COMP. Further, there is a strong likelihood that the fresh proceedings will be expedited because of the information obtained, and the lessons learned, by parties in the earlier proceedings. Finally, the Commission is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole (see s. 320 (3) of the Act). In this respect, it would appear to me to be acutely unfair to IPA if it was refused leave to appear and be heard given all that has transpired and all that is involved. Whilst there is some potential for the interests of the Worker, Ms Coombes, to be adversely affected by IPA being granted leave to be heard (in that Q-COMP and the Worker might otherwise settle the matter by consent) those interests can be protected by the way that any costs order might be handled should the Worker succeed in her appeal. This point has been acknowledged by Mr Burrell on behalf of IPA (see lines 28-39 of pg. 16 of Transcript) and has been taken into consideration in my decision to grant leave to be heard. In all of the circumstances the Commission makes the following orders: (a) An order pursuant to s. 320 of the Industrial Relations Act 1999 that IPA Personnel Pty Ltd be permitted to be heard in the appeal by the Appellant from the review of the decision of the Respondent (Q-COMP) dated 26 September 2006. -- 2 of 3 -- 3 (b) A direction that Q-COMP provide IPA Personnel Pty Ltd with a full copy of the Appellant's claim file. (c) A direction that the Appellant and Q-COMP provide IPA Personnel Pty Ltd all documents to be exchanged pursuant to s. 544 of the Workers' Compensation and Rehabilitation Act 2003 as though it was a party to the appeal, within 22 days of the date of release of this decision. (d) A direction that IPA Personnel Pty Ltd provide to all parties, no later than 21 days after receiving the documents referred to in (c) above, documents upon which it intends to rely in the appeal pursuant to s. 544 of the Workers' Compensation and Rehabilitation Act 2003 as though it was a party to the appeal. (e) A direction that in the hearing of the appeal IPA Personnel Pty Ltd be allowed to: (i) call evidence; (ii) cross-examine the Appellant; (iii) cross-examine witnesses called by the Appellant; and (iv) make submissions. (f) A direction that the costs of and incidental to this application be reserved. (g) Such further orders as the Commission considers necessary. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2007 21 December 2008 7 February Released: 15 February 2008 Appearances: Mr T.D. Betts (Counsel), instructed by Ms K. Wunch (Giudes & Elliott Solicitors), on behalf of the Appellant. Mr P.B. O'Neill (Counsel) directly instructed by the Respondent. Mr C. Burrell of IPA Personnel Pty Ltd. Government Printer, Queensland The State of Queensland 2008. -- 3 of 3 --