Australia Meat Holdings Pty Ltd v Kennedy & Anor [2006] ICQ 10 (2006) 181 QGIG 474

[Extract from Queensland Government Industrial Gazette, dated 31 March, 2006, Vol. 181, No .13, page 474-476] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal from the decision of the industrial magistrate Australia Meat Holdings Pty Ltd AND Angela Merilyn Kennedy AND Q-COMP (C/2006/7) PRESIDENT HALL 21 March 2006 DECISION On 24 June 2005, Angela Merilyn Kennedy lodged an application for compensation under the Workers' Compensation Rehabilitation Act 2003 with Australia Meat Holdings Pty Ltd (AMH). That company was both her employer and a licensed self-insurer under the Act. By a letter dated 22 July 2005, AMH advised Ms Kennedy that the application for compensation had been accepted. However, by a subsequent letter dated 25 July 2005, AMH further advised Ms Kennedy that the claim had been reviewed and that a decision had been made pursuant to s. 32 of the Act to terminate the entitlement to compensation on 30 June 2005. As she was entitled to do, Ms Kennedy filed an application under the Act for a statutory review of the appellant's decision. By a letter dated 27 October 2005, Q-COMP advised Ms Kennedy that it had reviewed the matter and confirmed the decision of AMH, and that the matter was one for "cessation". On 22 November 2005, Ms Kennedy appealed to the Industrial Magistrates Court against the decision of Q-COMP. The parties to that appeal were, of course, Ms Kennedy and Q-COMP. On 14 December 2005, the solicitors for AMH, which corporation would bear the financial burden of a successful appeal, wrote to each of Ms Kennedy and Q-COMP advising that an application would be made to the Industrial Magistrates Court to the effect that AMH should be joined as an intervener on the appeal. Subsequently, on 21 December 2005, AMH made application to the Industrial Magistrates Court for the following orders: "1. Australian Meat Holdings Pty Ltd (ACN 011 062 338) be joined as an intervener to the appeal to the Industrial Magistrate; 2. Australian Meat Holdings Pty Limited be given leave to participate in the appeal to the Industrial Magistrate; 3. Australian Meat Holdings Pty Ltd be at liberty to: a. call evidence in the appeal to the Industrial Magistrate; b. cross examine witnesses in the appeal to the Industrial Magistrate; c. make submissions at the hearing of the appeal to the Industrial Magistrate; 4. Australian Meat Holdings Pty Ltd be at liberty to seek costs from the parties at the completion of any hearing to the appeal.". The application for AMH to be joined as an intervener to the appeal was opposed by counsel for Ms Kennedy and was rightly rejected by the Industrial Magistrate. Neither the Workers' Compensation Rehabilitation Act 2003 nor the Industrial Relations Act 1999 authorises an Industrial Magistrate to confer the status of an intervener on a body corporate in the position of AMH. Counsel for Ms Kennedy did not oppose the grant of a right to be heard to AMH. On the authorities, any such contention would have been doomed to fail. The Industrial Magistrate rightly extended a right to be heard to AMH. Neither the Industrial Magistrate's rejection of the application for intervention, nor the Industrial Magistrate's grant of the right to be heard, has been queried on the appeal to this Court. The appeal has been about the conditions/limitations imposed upon the right to be heard by the Industrial Magistrate; that is, the appeal was not about the right to procedural fairness but the content of procedural fairness. Procedural fairness conveys "...the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case." see Kioa v West (1985) 159 CLR 550 at 585 per Mason J. Elaborating, his Honour observed (Ibid, at 585): "The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether pubic or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No.2], per Jacobs J. When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.". -- 1 of 3 -- 2 Here, there appears to be nothing in the Workers' Compensation and Rehabilitation Act 2003, other than the circumstance that some persons are declared to be parties to the appeal and persons in the appellant's situation are not (s. 549), to indicate a legislative intention to permit only an incomplete or limited right of appearance or representation, compare Australia Meat Holdings Pty Limited v Douglas and Others [2005] QCA 437 at para 19 per McPherson JA with whom Williams JA and Muir JA agreed. But the Industrial Magistrates Court is not the General Medical Assessment Tribunal/Psychiatric. An Industrial Magistrate exercising jurisdiction under Chapter 13 Part 3 of the Workers Compensation and Rehabilitation Act 2003 comes to the exercise of jurisdiction equipped with the powers at s. 320 of the Industrial Relations Act 1999 (s. 292(1)(a) and has ample authority to ensure that the grant of procedural fairness to persons such as the Appellant does not diminish the right of the parties to a full, fair and reasonable hearing. But in the imposition of the limitations and/or conditions on the right of appearance or representation, the starting point is the duty to achieve procedural fairness, not an obligation to ensure that a person claiming a right to be heard does not acquire rights analogous to those of a party. The orders made by the Industrial Magistrate were: "1. The Employer be granted leave to appear at the hearing of the Appeal conditionally upon the Employer delivering to the Appellant and the Respondents, a copy of all documents in its possession relevant to this case by 4pm on the 30th January 2006. 2. The Appellant and Respondent to the appeal exchange copies of all documents required under Section 554 of the Workers' Compensation Rehabilitation Act 2004(sic) (Qld) and supply a copy to the Employer by 4pm on the 30th January, 2006. 3. The Respondent provide the Employer and the Appellant with a full and complete copy of the Appellant's WorkCover claim files provided to it by WorkCover, without deletion or omission of any information, within 28 days of the date of this order. 4. The Employer in its appearance have the following rights: (a) Liberty to cross-examine the Appellant's witnesses at the hearing of the appeal; (b) The right to make submissions and address the Court on the evidence given at the hearing of the Appeal and on matters of the law; (c) The right to make submissions and address the Court on issues of the conduct and carriage of the Appeal; (d) The employer may not cross-examine witnesses called by the respondent at the hearing; (e) The employer shall not be entitled to an order for costs on the hearing of the appeal.". It is the Appellant's contention that the Industrial Magistrate's reasons make plain that his Honour acted upon "a wrong principle" within the meaning of House v The King (1936) 55CLR 49 at 504 to 505 per Dixon, Evatt and McTiernan JJ, and that in those circumstances the orders made by the Industrial Magistrate should be varied to ensure that in its appearance at the appeal before the Industrial Magistrates Court, AMH will have the right to: (i) call evidence; (ii) cross examine witnesses called by Q-COMP; and (iii) apply for costs. Notwithstanding the careful argument of Mr Honchin for Ms Kennedy, I have come to the conclusion that the criticisms levelled at the Industrial Magistrates decision cannot be explained away as inelegant and infelicitous expression, and that an error of principle is apparent on the face of the decision. The critical passage seems to me to be: "I do not accept in this case that Q-Comp and the employer's interests are so different to warrant the employer to be given the status of a party to these proceedings with the rights sought, as set out in its application to which I referred earlier. The employer should surely fully and appropriately brief Q-Comp with all the information. To suggest, as the applicant's advocate has, that Q-Comp in these matters should take a back seat and t he employer take control is not the intent of the legislation in my view. And in fact it should be the other way around. It should be Q-Comp taking the active participatory role to establish its decision, relying upon the evidence which can be given to it by its client, the employer, calling those witnesses which the employer thinks it appropriate in the circumstances, and assisting the employer by calling those additional medical experts the employer considers appropriate. To do otherwise, as suggested, seems to me is contrary to the principle of the legislation, which is for Q-Comp to be called upon to justify its decision."(emphasis added). Q-COMP is of course a creature of statutory creation. It is established by s. 326 of the Workers' Compensation Rehabilitation Act 2003. By s. 327, it is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. Its primary function is to regulate the workers compensation scheme: s. 330(1). Its functions include managing appeals: s. 330(2)(e). It would be wrong for Q-COMP to treat an employer, WorkCover or a licensed self-insurer as a client and/or to accept instructions from an employer, WorkCover or a licensed self-insurer. The extent of the collaboration with an employer, WorkCover or a licensed self-insurer in which Q-COMP may properly engage may be left to another day, but 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. -- 2 of 3 -- 3 It does not follow that the Industrial Magistrates orders should be amended by this Court. An Industrial Magistrate is plainly better placed to determine the conditions/limitations to attach to a right to be heard in an appeal before the Industrial Magistrate. Further, the appeal before the Industrial Magistrate is an appeal by way of hearing de novo. Trials ebb and flow. The conditions/limitations initially imposed upon a right to be heard may cease to be appropriate. There may be some issue about the capacity of Industrial Magistrate to vary conditions/limitations imposed by this Court. Additionally the limited materials before the Court on the appeal do not instil confidence that orders might presently be made which would safeguard the right of AMH to be fully and fairly heard whilst stopping short of imposing unfair burdens on the parties to the appeal by way of hearing de novo. Hopefully, if the matter is remitted to the Industrial Magistrate at Townsville, when the further application comes on for hearing, his Honour could be given some understanding of the nature of the differences between the case to be developed by Q-COMP and that which AMH wishes to say and given a (very brief) indication of the evidence to be led from any additional witnesses to be called. The proper exercise of discretion is always underpinned by the provision of appropriate materials. I set aside orders 4(a), 4(b), 4(c) and 4(d) of the orders made by the Industrial Magistrate at Townsville on 10 January 2006. Order 4(e), which goes to the matter of costs flows from orders 4(a) and 4(d). It must be and is set aside. I have no power to allow the appellant the costs of this appeal. Dated 21 March 2006. D. R. HALL, President. Appearances: Released: 21 March 2006 Mr J. Griffin QC and Mr A. Entriken instructed by Abbot Tout Lawyers for the appellant. Mr D. Honchin instructed by Purcell Taylor Lawyers, for Angela Merilyn Kennedy. Mr P. B. O'Neill directly instructed by Q-COMP. Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --