Carter v Q-COMP [2007] ICQ 9 (2007) 184 QGIG 155

[Extract from Queensland Government Industrial Gazette, dated 16 March, 2007, Vol. 184, No. 11, pages 155-158] 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 8 March 2007 DECISION Darius Carter was employed by the Queensland Police Service, from in or about April 2000 until August of the same year. Immediately prior to the termination of his employment, Mr Carter had been placed on a diminished work performance program. He resigned from his employment before the completion of the program. On 3 June 2005, he applied to WorkCover for compensation under the Workers' Compensation and Rehabilitation Act 2003. The claim was made in respect of what was said to be a "nervous condition" which had developed over the period August to September 2000. Mr Carter attributed his condition to his treatment by certain employees of the Queensland Police Service within his peer group and to his treatment by senior management. The trigger for the claim, after the lapse of almost 5 years, appears to have been an episode during the course of which Mr Carter suffered flashbacks to his treatment by his peers/senior management when confronted with a particular style of desk whilst undertaking a course at a TAFE College. On 14 October 2005, WorkCover advised Mr Carter that his application for compensation had been rejected. Mr Carter was informed that WorkCover: was satisfied that he had been a "worker" within the meaning of the Workers' Compensation and Rehabilitation Act 2003, whilst employed at the Queensland Police Service; was satisfied that he had de-compensated and suffered an injury described as either a schizophreniform psychosis or a psychotic depression; was satisfied that his employment with the Queensland Police Service had been a significant contributing factor in the development of his condition for the purposes of s. 32; but was also satisfied, that the condition was withdrawn from the definition of "injury" by the operation of s. 32(5) in that it arose out of or, in the course of events which were reasonable management action taken in a reasonable way. As he was entitled to do, Mr Carter sought a review of WorkCover's decision by The Workers' Compensation Regulatory Authority (commonly referred to by its trading name, Q-COMP). Q-COMP confirmed the decision of WorkCover. The critical paragraph in the letter of 16 February 2006, confirming the decision of WorkCover is: "I am satisfied that, at the material time, you were a 'worker' under the Act and that you have sustained an 'injury', which was caused or aggravated by management action. However, I am further satisfied that the instances of management action taken against you that have resulted in your injury also qualify as instances of reasonable management action, taken in a reasonable way. Section 32(5) of the Act is applicable in this instance.". Mr Carter took advantage of the opportunity to appeal made available by Chapter 13, Part 3 of the Workers' Compensation and Rehabilitation Act 2003. Since the enactment of Act 45 of 2004 (proclaimed 2005) persons in Mr Carter's situation have had an entitlement to appeal to the Industrial Magistrates Court or to the Queensland Industrial Relations Commission (but not both). Mr Carter chose to appeal to the Queensland Industrial Relations Commission (the Commission). The right to appeal to the Commission is of recent origin. There is a paucity of authority upon the construction of the relevant provisions. In short form, the issues arise in this way. By s. 265(1) of the Industrial Relations Act 1999, the Commission has jurisdiction in all of the matters committed to the Commission by that Act or "another Act". Plainly, the Workers' Compensation and Rehabilitation Act 2003, is such "another Act". By s. 349(1)(e) and s. 349(2)(a) and (c) of the Industrial Relations Act 1999, decisions of the Commission are final and conclusive and cannot be appealed against, reviewed, quashed, or invalidated in any court. An exception to that firm rule is provided by s. 349(4) in the situation in which a right to appeal is conferred by the Industrial Relations Act 1999 or by "another Act". The Workers' Compensation and Rehabilitation Act 2003 is such "another Act". The right of appeal (to this Court) arises under s. 561 of that Act. It is s. 561 which is relied upon by Mr Carter in his Application to Appeal. The problem confronting Mr Carter is that the relief sought in the event of success, i.e. that the matter be remitted to the member of the Commission by whom it was heard at first instance, is not one of the forms of relief made available by s. 562 where a s. 561 appeal succeeds. (If relief be available on the grounds advanced, nomination of the incorrect section is not fatal). Potentially, though the matter has not been developed, a question arises about whether an appeal might be mounted against the decision of the Commission pursuant to s. 341(1) of the Industrial Relations Act 1999, on the ground of error of law or excess or want of jurisdiction. In ordinary circumstances, one would not expect a litigant to pursue such an appeal when an appeal by way of re-hearing, in the Warren v Coombes (1979) 142 CLR 561 sense, is available under s. 561 of the Workers' Compensation and Rehabilitation Act 2003. The unusual attraction here is that pursuant to s. 341(3) it is open to this Court to allow the Appeal, set aside the decision at first instance and remit the matter to be heard and determined according to law. As noted that issue has not directly arisen, but an issue has arisen about s. 248(1)(e) of the Industrial Relations Act 1999. Section 248(1)(e) provides that this court may: -- 1 of 3 -- 2 "(e) exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process - (i) the commission and magistrates exercise their jurisdictions according to law; and (ii) the commission and magistrates do not exceed their jurisdiction.". The great prerogative writs were mandamus, prohibition, certiorari, habeas corpus and quo warranto. Presumably, the three writs first mentioned are the writs aimed at by s. 248(1)(e). It is the writ of mandamus which is relevant here. The case made by the Appellant is that the proceedings in the Commission were so procedurally deficient that the Commission did not exercise its jurisdiction, i.e. the case developed is one of constructive failure to exercise jurisdiction, compare Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [51] per Gaudron and Gummow JJ and the cases there cited. Accepting that in some such cases mandamus and certiorari will overlap, this is not such a case. Certiorari is available for error on the face of the record. Assuming that it is a consequence of s. 559(b) of the Workers' Compensation and Rehabilitation Act 2003, that the record of the proceedings in the Commission is expanded to include the reasons for decision (a bold assumption in light of the decision of the Court of Appeal in Kriticos v State of New South Wales (1996) 40 NSWLR 297), the case developed by the Appellant requires reference to the transcript and to additional evidence as well as to the initiating application to appeal, to the order and to the reasons. The writs of mandamus, prohibition and certiorari are no longer issued by the Supreme Court. The jurisdiction to grant the relief or remedy previously made available by such writs continues but simpler initiating procedures and more contemporary orders are now in place, re: Judicial Review Act 1991. In my view, this Court should emulate those procedures and orders. I am also prepared to accept that whether as a consequence of s. 12 of the Judicial Review Act 1991, or the proper exercise of jurisdiction, relief pursuant to s. 248(1)(e) should not be made available where an adequate appeal is available. The difficulty confronting the Respondent is that the appeal provided by s. 561 of the Workers' Compensation and Rehabilitation Act 2003, whilst perfectly adequate where there is an error within jurisdiction or an excess of jurisdiction, is not adequate where there has been a constructive failure to exercise jurisdiction in that it does not allow for an order requiring the Commission to exercise jurisdiction. In my view, if the Commission fails to exercise jurisdiction, it may be ordered to hear and determine the matter according to law, compare the order made against an Industrial Magistrate in Findling v Q-COMP (2005) 179 QGIG 828. Before proceeding further, and in particular, before outlining the unusual course which proceedings on the Appeal to this Court have taken, it is necessary to say something about the proceedings at first instance and about the Appellant's complaints about the proceedings at first instance. Mr Carter gave evidence but did not call any other witness. His case was directed at the issue whether specific (allegedly detrimental) actions taken by his superiors were reasonable management action reasonably taken within the meaning of s. 32(5) of the Workers' Compensation and Rehabilitation Act 2003. His case on that point failed. But his Appeal to the Commission also failed because he omitted to establish that he had suffered a psychiatric and/or psychological injury to which his employment with the Queensland Police Service had been a significant contributing factor. It is put on behalf of Mr Carter that he did not call evidence about whether he had suffered a psychiatric and/or psychological injury to which his employment with the Queensland Police Service had been a significant contributing factor because the letter from Q-COMP of 16 February 2006 accepted that those matters were made out. Mr Carter's complaint is that he did not realise that the Appeal to the Commission was by way of a hearing de novo and that absent a concession from Q-COMP, which was not forthcoming, it was necessary for the Appellant to establish all of the elements of s. 32. (There was a concession that Mr Carter had been an employee.) His failure to appreciate the true nature of the case which he was required to make was said to have been contributed to by advice which he had been given by a then Associate (who was not the Associate to the Member of the Commission who heard his Appeal). I return then to the submissions. There are difficulties with the case advanced by Mr Carter. To begin with, the issue of misunderstanding was dealt with by the Commission at first instance when it arose in the course of final submissions. The Commission took the view that Mr Carter had refrained from calling witnesses, in particular medical witnesses, not because of any misunderstanding of the nature of the process but because of the cost. There was evidence to support that view (though the view attributes to Mr Carter that he was engaged in futility). And, there is the further difficulty that if the finding that the specific acts of the superiors attacked by Mr Carter were reasonable management action reasonably taken is sustained, it does not matter whether or not the injury was a true psychiatric and/or psychological injury and it does not matter whether the employment by the Queensland Police Service was a significant contributing factor to the injury. [At this point I should interpolate that the issue of whether on an appeal to an Industrial Magistrate or to the Queensland Industrial Relations Commission Q-COMP is bound by favourable findings contained within its review decision, is an issue yet to be argued. The issue squarely arises in an appeal which is now listed for hearing. The finding at first instance about s. 32(5) in this case may make it unnecessary to go to the issue on this Appeal.] The issue whether there has been a miscarriage of justice of such proportion as to attract the operation of s. 248(1)(e) involves both questions of law and questions of fact. Potentially, Mr Carter might be called to be cross-examined about an affidavit which is tendered in support of his claims and the former Associate might be called to give rebuttal evidence. In those circumstances, Counsel agreed I should defer the issues of miscarriage of justice and determine -- 2 of 3 -- 3 whether this Appeal may be disposed of as a simple fresh evidence case brought pursuant to s. 561 of the Workers' Compensation and Rehabilitation Act 2003. I have acquiesced in that course but, perhaps regrettably, have come to the conclusion that this is not a case which may be dealt with by allowing fresh evidence. It cannot be said that if medical practitioners were called to give evidence about the matter of psychiatric/psychological injury and connection with the employment by the Queensland Police Service and the evidence was of the type outlined in certain doctor's statements which were before the Q-COMP review officer, the outcome of the case would certainly be different, compare Carter v Rosedale Sawmill and Another (1995) QCA 441. To begin with, the opinions expressed are very restrained. For example, Dr Christiansen, speaking of the episode at TAFE, observes: "As it is not outside the realms of understanding that Mr Carter could be triggered by the stress of study and sitting at desks which are similar to those he sat at when he first became unwell.". (Emphasis added) Further, this is not a case in which but for the fresh evidence all of the evidence is in the transcript and exhibits. Q- COMP would be perfectly entitled to cross-examine any doctors to be called and perfectly entitled to lead rebuttal evidence. Additionally, there is a finding about s. 32(5). Fresh evidence is also proposed to be called on that issue. The fresh evidence relates to whether a particular superior to Mr Carter raised his voice on a particular occasion. That point also arose at first instance. The Commission dealt with it by concluding that even if there had been a raising of voices the management action was still reasonable management action reasonably taken. It is difficult to see how allowing the tape to be put in evidence and listening to the tape could impinge upon that finding. And Senior Counsel for Mr Carter does not attempt to suggest otherwise. What is suggested is that the evidence about whether there was psychiatric/psychological injury and the contribution to the onset of that injury made by the employment of the Queensland Police Service may well show that the onset of the injury preceded the commencement of the management action found to be reasonable and reasonably taken. In fairness, Dr Christiansen's opinion gives some support to that suggestion, in that it contemplates that the behaviours which triggered the diminished work performance program were in fact symptoms of the onset of a psychiatric injury. It would be quite inappropriate for this Court to speculate about the prospects of success on such a case, and it is unnecessary for this Court to do so. The point to be made is that the suggested case was not the case developed at first instance. The Appeal at s. 561 of the Workers' Compensation and Rehabilitation Act 2003 is to be by way of re-hearing on the evidence and proceedings before the Commission "unless the Court orders additional evidence be heard", s. 561(3). It would be wrong to exercise the discretion to allow an appeal by way of a second chance trial in this Court, compare Svenson v Q-COMP [2006] QIC 16. In my view the current Appeal may not be disposed of as a fresh evidence matter. In those circumstances it is necessary to re-list the matter. My Associate will make the necessary arrangements with Counsel. To avoid confusion the terminology of an appeal rather than an application for prerogative order will be persisted with. Dated 8 March 2007. D.R. HALL, President. Released: 8 March 2007 Appearances: Mr J. Murdoch SC and with him Mr N. Hiscox, instructed by 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 --