Clarke v Q-COMP [2008] ICQ 21 (2008) 188 QGIG 187

[Extract from Queensland Government Industrial Gazette, Dated 27 June 2008, Vol. 188, No. 9, pages 187-188] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission Troy John Clarke AND Q-COMP (C/2008/4) PRESIDENT HALL 13 June 2008 DECISION When this Appeal was mentioned on 29 April 2008, Counsel for the Appellant advised the Court that an application under s. 561(3) of the Workers' Compensation and Rehabilitation Act 2003 to lead "additional evidence" was in prospect. 12 June 2008 was set to the hearing of any such application. Counsel undertook to advise the Court and to advise Q- COMP by 2 June 2008, as to whether the application would in fact be pressed. The Appellant is no longer legally represented. On 2 June 2008, the Appellant filed a bundle of documents with the Industrial Registrar and delivered a copy of same to Q-COMP. The Appellant made plain that the Application to lead "additional evidence" was to be pressed. The Application was heard, as scheduled, on 12 June 2008. A number of the documents within the bundle were in fact exhibits in the proceedings before the Queensland Industrial Relations Commission. In the case of those documents, which were identified in the course of the proceedings on 12 June 2008, there is neither need nor scope for an Application to lead "additional evidence". Five documents remained. The first document is an opinion obtained from a Dr Murrell after the release of the Commission's decision. Dr Murrell was a witness called by the Appellant below. The Commission did not act upon Dr Murrell's evidence. The further opinion seeks merely to debate further the matters canvassed at trial. It is not a proper exercise of the discretion at s. 561(3) to allow such materials as "additional evidence". A significant issue at trial was the extent to which Mr Clarke, who was employed by a waste disposal business as a sales representative, came into contact with "rubbish, chemicals and the like". Amongst the bundle of documents is a memo from each of two businessmen in Mackay, indicating the extent to which the Appellant came into contact with waste at his premises. The memoranda are not themselves admissible. They do not adequately expose what each of the two businessmen would say if called as a witness. However, on the assumptions most favourable to the Appellant, the evidence will go to the issue of contact with waste. The critical passage in the Commission's decision on this issue is: "Mr Clarke's recounting of his level of exposure to rubbish, chemicals and the like, as claimed above, seemed to have been exaggerated to a high degree. Whether this was deliberate or accidental is not important. What is important, however, is that even if Mr Clarke did come into contact with rubbish, and the like, as frequently as he claimed his evidence has not established any link between such contact and the development of his pemphigus condition.". It has to follow that if the proposed "additional evidence" is allowed, is favourable to the Appellant and is acted upon, the evidence will not bring about an outcome other than the outcome at first instance. If indeed, on the hearing of the Appeal, Mr Clarke establishes a link between the development of his pemphigus condition and exposure to waste and in consequence the decision of the Commission is set aside, there may be an issue as to whether the "additional evidence" should be allowed into evidence before this Court forms the view about any order which would be made in substitution for the order of the Commission. However, that point has not been reached at this stage. There is a document within the bundle indicating that Mr Clarke may be suffering from a psychiatric/psychological condition. If the condition is wholly independent of the pemphigus condition, it should be pursued with WorkCover. If the condition is consequential upon the pemphigus condition, hearing evidence about it will not assist in establishing a link between the pemphigus condition and the exposure to waste. There is a document in the bundle about the extension of the Appellant's probationary period. I am not satisfied that the document is relevant to any issue on the Appeal, though given the robust nature of the trial it may well have gone to credit at first instance. -- 1 of 2 -- 2 It was for those reasons that on 12 June 2008, I rejected the Appellant's Application to lead "additional evidence". Dated 13 June 2008. D.R. HALL, President. Released: 13 June 2008 Appearances: The Appellant in person. Mr P. Rashleigh, directly instructed for Q-COMP. Government Printer, Queensland The State of Queensland 2008. -- 2 of 2 --