Carter v Q-COMP [2007] ICQ 29 (2007) 185 QGIG 245

[Extract from Queensland Government Industrial Gazette, dated 13 July, 2007, Vol. 185, No. 11, pages 245-247] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(2) - appeal against decision of industrial commission Darius Adair Carter AND Q-COMP (C/2006/75) PRESIDENT HALL 5 July 2007 DECISION This Appeal was relisted as an outcome of an earlier decision now reported at 184 QGIG 155. It was relisted to hear evidence and argument upon the issue whether a prerogative order in the nature of mandamus should issue on the ground of constructive failure to exercise jurisdiction. I should record that Q-COMP raised an issue about whether this Court has authority to grant such relief in an appeal pursuant to s. 561(2) of the Workers' Compensation and Rehabilitation Act 2003, where the relief to be granted is not available by way of an order under s. 561(2) and the Appellant has not filed an application for prerogative relief under s. 248(1)(e) of the Industrial Relations Act 1999. It is not necessary to deal with the issue to dispose of the matter currently before the Court. It is better to leave the issue until it squarely arises and is fully argued. When the matter was called, Mr Murdoch SC, Counsel for the Appellant, informed the Court that Mr Carter was unavailable to give evidence or for cross-examination. In reliance on an affidavit of Dr Drew Richardson, a psychiatrist employed by Queensland Health at Prince Charles Hospital, leave was sought to use as evidence an affidavit sworn by Mr Carter on 19 December 2006, the contents of which had been opened at the earlier hearing in the Court on 25 January 2007. Materially, Dr Richardson deposed: "I am writing this brief report regarding Mr Darius Carter who has been a patient of mine since his brief admission to the Price Charles Hospital Mental Health Unit in March 2007. I discussed the matter with you colleague Mr Neville Hiscox and I received a signed consent for Release of Information. Please note that this is a treating Doctors report and is not meant to replace an independent medico- legal assessment. I understand that Mr Carter is pursuing some legal proceedings which he has been involved with intermittently over preceding couple of years. I understand that he as spend some time in court in 2006 and has an upcoming hearing soon. My opinion is that due to Mr Carter's significant psychiatric illness at the present time he lacks the capacity to represent himself or give evidence in an accurate and valid manner. I am also of the opinion that during 2006 it is likely that he was similarly affected by his mental illness such that his capacity to represent himself would have been significantly impaired. At this point in time I am unable to comment on the likely duration of this impairment but I would have serious concerns regarding his fitness for trial specifically the question of how well he would cope with the pressure of giving evidence before court.". The application for leave to use the affidavit as evidence, even as evidence of little weight, was opposed. The affidavit is quite adverse to the Respondent on the issue of failure to exercise jurisdiction. It is controversial and attributes neglect in circumstances in which regularity would ordinarily be presumed. It is just the sort of affidavit which should be tested. It is not appropriate to grant leave. Because of the contents of Dr Richardson's affidavit, there was a brief adjournment to enable the Appellant's legal representative to speak to Dr Richardson by telephone. On the resumption, the Court was informed that in Dr Richardson's opinion, the Appellant was capable of giving instructions in a relaxed environment and informed of the circumstances in which his solicitor Mr Ryan has taken instructions. In those circumstances, I accepted the invitation to finally determine the matter on the materials properly before the Court. (In light of the information from the bar table, I have taken into account that Mr Carter may well have been relaxed in the preparation and execution of the affidavit of 19 December 2006, and have not relied on apprehension about his capacity in December 2006 in refusing to permit use of the affidavit in evidence.) In the absence of his affidavit, Mr Carter had but the record of proceedings in the Commission and Dr Richardson's affidavit. Since Dr Richardson, who was not required for cross-examination, swore to the fact in expressing an opinion about Mr Carter's capacity to conduct the trial at first instance, the weight of the opinion is a matter of concern. Mr Murdoch SC has invited the Court to peruse the whole of the transcript. I have taken that step and have also considered Mr Carter's final written submission at first instance. It is not apparent to me that Mr Carter lacked the capacity to make a case. -- 1 of 3 -- 2 Mr Carter gave evidence on his own behalf. He did not call any other witness. As is invariably the case where a self- represented litigant gives evidence, Mr Carter had no-one to lead him through his evidence. He took the Commission through his evidence as a narrator. Understandably, Mr Carter was not familiar with the conduct of litigation. There was too much of conclusion and perception. There was too little of "I saw" and "he said". Yet it is clear that Mr Carter understood what was occurring. When he was interrupted and challenged about the date of a particular meeting his response was that, if he was in error, exposure of the error favoured his case because it followed that the meeting was called on one day's notice when the Human Resources Manual required two day's notice. In dealing with an allegation of sexual harassment, Mr Carter made submissions about the improbability of such an incident happening within four days of a training session on the topic, and happening to the employee nominated as the sexual harassment officer. He developed a submission about the inconsistency of various statements about the matter which had been relied upon in the course of the Statutory Review and about inconsistencies in other notes. Turning to the cross-examination of Mr Carter, it is apparent that Mr Carter became annoyed when questioned about the adequacy of his performance. That is a normal human response. When pressed for the factual matters upon which his conclusions/perceptions were based, Mr Carter became argumentative and raised other conclusions/perceptions. That is no basis for doubting his capacity to conduct the case. His problem was that he had no remembrance of the facts and no diary notes to assist him. The claim under the Workers' Compensation and Rehabilitation Act 2003, it must be remembered, was made almost five years after the date of the first psychiatric/psychological injury. At the time of his separation from his employer, Mr Carter was neither making a claim nor preparing one. On the occasions on which he had an answer, he gave it. When asked "So it's just the vibe - the vibe, the feel?", Mr Carter replied "It's not the vibe. I've observed it, okay.". To take another example, when it was put to Mr Carter that " ... you just said that Hutchings didn't get along with Tipler?", Mr Carter replied "They were jogging partners. They did get along.". The criticisms of his evidence are about inadequate preparation, exaggeration (perhaps inadvertent) and, as was put to him in cross- examination, elusiveness. The criticisms do not go to capacity. Mr Carter had not the forensic skills to cross-examine. The transcript shows that the Commission took great pains to assist Mr Carter, allowing him time to reduce the lengthy paragraphs which he wished to put to witnesses to a series of short questions. The case has no similarity to the situation dealt with by the Court of Appeal in Barmettler and Another v Greer and Timms [2007] QCA 170. Mr Carter listened to the advice and, for all his failings, seems to have traversed with the witnesses the issues canvassed in his evidence-in-chief. Mr Carter's final submissions at first instance, particularly his final written submissions, certainly displayed determinedness to revert to a case based upon perception/conclusion and a misunderstanding of the authorities upon which he relied. Lack of understanding is a burden borne by all self-represented litigants. A determination to press past earlier adverse rulings is no indication of incapacity. It is contended for the Appellant that, having regard to the information contained in the materials provided pursuant to s. 552(2) and (3) of the Workers' Compensation and Rehabilitation Act 2003, the Commission should have exercised the power at s. 556 to require the Appellant to submit to a personal examination to establish his capacity to conduct the Appeal. In the alternative, it is contended that such an order might be made pursuant to s. 320(2)(b) of the Industrial Relations Act 1999. As a matter of first impression, I should have thought that the power vested by s. 556 was a power to obtain more information about an alleged "injury". In any event, the power at s. 556 is discretionary. The suggestion that struggling self-represented litigants should be subjected to the humiliation of psychiatric examination by the order of a court of record with limited statutory jurisdiction to which they have turned for redress, is quite Orwellian. The same comment might be made about s. 320(2)(b) of the Industrial Relations Act 1999. (Since the matter has not been argued, I express no view about whether, in such a case as the present, the power at s. 320(2)(b) may be relied upon to supplement the powers at Chapter 13, Part 3 of the Workers' Compensation and Rehabilitation Act 2003. In any event, the matter currently before the Court is whether the Commission failed to exercise the Commission's jurisdiction: not about an erroneous failure to exercise a discretion in the course of exercising jurisdiction. When the matter was originally before the Court (on 25 January 2007), the allegation that Mr Carter had developed a case about s. 32(5) of the Workers' Compensation and Rehabilitation Act 2003, but had not developed a case about the other elements at s. 32 (notwithstanding that he bore the onus), was a matter of some moment. With the exclusion of Mr Carter's affidavit of 22 December 2006, the allegation is of little moment. As Mr Long SC for the Respondent submits, if the Commission had accepted Mr Carter's view of history, the Commission would have found that s. 32(5) did not pluck any psychiatric/psychological injury from the statutory definition, and might have been invited to find that the conduct attributed to the employer's management team had been a significant contributing factor to the decompensation which occurred almost five years later. I do not say that the case would have succeeded . Mr Carter had not called medical evidence. Accepting that medical evidence is not essential, the Commission may well have been reluctant to make a finding that Mr Carter's condition amounted to a psychiatric/psychological disorder of the mind when all it had was the evidence of a psychologist, put into evidence by consent, that Mr Carter had a "idiosyncratic personality". Additionally, the Commission may have been reluctant to make the finding that the events of 2000 were a "significant contributing factor" to a decompensation five years later. An alternative explanation was that a gentleman with a vulnerable personality decompensated on each of two occasions when confronted with a similar physical environment. However, the point of greater relevance is that Mr Carter's decision not to call medical witnesses was a -- 2 of 3 -- 3 reasoned decision. He decided not to call medical witnesses because of the cost. Impecuniosity is a burden very often carried by self-represented litigants. I recognise that the transcript shows that in complaining of the cost Mr Carter, who elsewhere revealed that he sought psychological counselling from a telephone service for problem gamblers because it was free, added a further remark that it was not worth spending a lot of money when he might not "cross-examine" any witnesses whom he chose to call. I consider it highly likely that Mr Carter did not grasp the distinction between cross- examination and examination-in-chief. In a perfect world, the Commission might have pursued that matter with him. The world is not perfect. The Commissioner did not have prompt access to the transcript. The matter slipped by. Further, if an error, it was error within jurisdiction. So also was any error in failing to order the production of an audio tape sought by Mr Carter. In my view the Appellant has failed to establish a constructive failure to exercise jurisdiction. I dismiss the Appeal (and any application for prerogative leave which has been made within the Appeal). I reserve all questions as to costs. Dated 5 July 2007. D. R. HALL, President. Released: 5 July 2007 Appearances: Mr J. Murdoch SC and with him Mr N. Hiscox instructed by Mr G. Ryan of G.R. Ryan Solicitors, for the Appellant. Mr G. Long SC and with him Mr A. McLean-Williams, directly instructed for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 3 of 3 --