E.A. & S. Plaster Co Pty Ltd v Jones and WorkCover Queensland [2002] ICQ 54 (2002) 171 qgig 650

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 November, 2002 650 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(2) – appeal against decision of industrial magistrate E.A. & S. Plaster Co Pty Ltd AND Lynton Charles Jones and WorkCover Queensland (No. C86 of 2002) PRESIDENT HALL 18 November 2002 DECISION By a decision of 19 December 2001 the Statutory Review Unit, established under the WorkCover Queensland Act 1996, set aside an earlier decision by WorkCover Queensland that Lynton Charles Jones was a “worker” within the meaning of s. 12(1) or (2) of the Act in respect of an injury he suffered while performing work for E.A. & S. Plaster Co Pty Ltd on or about 24 January 2001. Mr Jones appealed to an Industrial Magistrate against that decision. The parties to that appeal are Mr Jones and WorkCover Queensland. The only issue on the appeal is whether Mr Jones was a “worker” within the meaning of s. 12(1) or (2) of the Act. The appeal before the Industrial Magistrate commenced on 5 July 2002. Mr Jones gave evidence-in-chief in support of his appeal against the decision of the Statutory Review Unit. At the conclusion of his evidence, WorkCover Queensland made an application for an adjournment so that it could take some instructions about aspects of Mr Jones’ evidence-in-chief. Mr Jones consented to the adjournment and it was granted by the Industrial Magistrate. The matter was adjourned to 2 August 2002. Subsequently, and in consequence of the illness of the Industrial Magistrate before whom the matter had come, the matter was further adjourned until 29 August 2002. On 29 July 2002 E. A. & S. Plaster Co Pty Ltd made an application seeking an order pursuant to s. 320 of the Industrial Relations Act 1999 permitting it to participate in, call evidence, cross-examine witnesses and make submissions at the hearing of the appeal to the Industrial Magistrate. That application was heard before the Industrial Magistrate on the resumption of the hearing of the appeal on 29 August 2002. The Industrial Magistrate dismissed the application. This is an appeal against that decision. It is brought pursuant to s. 341(2) of the Industrial Relations Act 1999. It is settled that such an appeal is available to a disappointed applicant on an application under s. 320 in proceedings in the Industrial Magistrates Court instituted under s. 498 of the WorkCover Queensland Act 1996: see Squires v. President of the Industrial Court Queensland [2002] QSC 272. The Industrial Magistrate advanced two reasons for rejecting the application. First, Her Worship held that an Industrial Magistrate had no jurisdiction to allow an application to be heard pursuant to s. 320. Her Worship’s finding was based on the construction of an amendment to s. 498 of the WorkCover Queensland Act 1996 wrought by Act No. 67 of 2001. It is unnecessary to consider whether Her Worship’s construction of the amended section is correct. On any view of the matter the injury suffered by Mr Jones occurred prior to 1 July 2001. It is the effect of the transitional provision at s. 588 of the WorkCover Queensland Act 1996 that the provisions of the Act as in force immediately before 1 July 2001 continue to apply to an injury resulting from an event happening before 1 July 2001 as if the amending Act had not been enacted. It is settled that under the law as it stood prior to 1 July 2001 that an Industrial Magistrate hearing an appeal brought pursuant to s. 498 of the WorkCover Queensland Act 1996 did have jurisdiction to grant an application to be heard based on s. 320 of the Industrial Relations Act 1999: Middleton v. Teys Bros. (Holdings) Pty Ltd (2001) 166 QGIG 138 and State of Queensland v. Squires and WorkCover Queensland (2002) 170 QGIG 20. The Industrial Magistrate erred in declining jurisdiction. Second, the Industrial Magistrate held that even if jurisdiction to grant leave to be heard pursuant to s. 320 was available to Her Worship, the case was such that as a matter of discretion leave to be heard should not be granted. It may be conceded at once that the power at s. 320 is discretionary power. It is in the nature of a discretionary judgment that the decision maker is allowed some latitude as to the choice of the decision to be made, see Coal and Allied Operations Pty Ltd v. Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1354 per Gleeson CJ, Gaudron and Hayne JJ, “[T]here is a strong presumption in favour of the correctness of the decision appealed from, and that decision should therefore be affirmed unless the Court is satisfied that it is clearly wrong,”, Australian Coal and Shale Employees Federation v. the Commonwealth (1956) 94 CLR 621 at 627 per Kitto J. In House v. the King (1936) 55 CLR 499 at 504 to 505 Dixon, Evatt and McTiernan JJ put the matter thus: “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”. Appellate tribunals are particularly loathe to interfere with a discretionary decision upon a point of practice or procedure, compare In Re the Will of F.F.B. Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 per Jordan CJ and Adam P. Brown Male Fashions Pty Ltd v. Philip Morris Inc (1981) 148 CLR 170 at 176 to 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ. I adhere to the view which I expressed in State of Queensland v. Phillip Allan Squires and WorkCover Queensland (2002) 170 QGIG 20 at 20 that in ordinary circumstances this Court will be loathe to interfere in the exercise of the discretion at s. 320 by an Industrial Magistrate. The appellant’s first attack upon the exercise of discretion by the Industrial Magistrate was that, as in Squires ibid, the Industrial Magistrate treated the first respondent and the second respondent as one and the same or, alternatively, treated the first and the second respondents as having an identical interest. I am not satisfied that that is so. What Her Worship said was (at page 16 of the transcript): “For the sake of completion, I will also mention that I have looked further or reflected further on the submissions of Mr Evans and Mr Merrill based on the timing issue and re-read the affidavit of Feroz Sharoff Lateef, which was affirmed on the 29th of July, in support of the application. The point to be made about that, in my view, is that – of the evidence in that affidavit – is that the hearing did commence on the 5th of July this year in circumstances where Mr Rashleigh said to the Court that he intended to call the applicant company as a witness for the respondent. And, probably of more significance, the company at that stage knew the hearing was set for the 5th of July and made no application to intervene at that stage. The fact that WorkCover made no application for an adjournments (sic) pending the ability of the applicant/respondent to make its determination as to apply or not, plus the respondent’s position today, neither objecting nor consenting, tends to suggest that their interests are essentially one and the same so far as this hearing is concerned.”. -- 1 of 2 -- 29 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 651 The construction of the paragraph, which I should in fairness say forms part of an ex tempore judgment, has attracted more than a little attention in these proceedings. I consider that Her Worship was voicing a criticism of the applicant’s case. On the face of the matter each of the appellant and the second respondent sought to advance the same case, viz that Mr Jones was not a “worker” for the purposes of s. 12(1) or s. 12(2) of the WorkCover Queensland Act 1996. It did not of course follow that there would be commonality of submissions. Indeed, each of the appellant and the second respondent might perfectly well advance the same conclusion on entirely different bases. But if that was why leave pursuant to s. 320 was being sought, Her Worship was not being let into the secret. Her Worship was being asked to assume that if leave were granted something additional and useful would be put. Doubtless in many cases it may be safely assumed that a person directly involved will have something useful to say. In many cases fairness to a person whose pecuniary interests are involved will require grant of the indulgence of a hearing. But here the second respondent proposed to call a representative of the appellant as a witness. Her Worship was entitled to refrain from assuming that the appellant would have something to contribute if granted leave under s. 320, and to expect disclosure of the contribution from the applicant for indulgence. In any event, the principal basis for Her Worship’s view that it would be inappropriate to exercise the discretion at s. 320 in the appellant’s favour was concern for the timely disposition of proceedings under s. 498 of the WorkCover Queensland Act 1996 . It may be accepted, as senior counsel for the appellant contends, that the favourable exercise of the discretion at s. 320 is inherently likely to lengthen proceedings. It does not follow that an Industrial Magistrate is required to put consideration of the timely disposition of appeals to one side. It will always be necessary to weigh the assistance which an applicant to be heard may be able to give the Court in informing its mind and achieving perfect justice against any delay in the administration of justice flowing from the decision to hear. An Industrial Magistrate exercising the power at s. 320 will always be concerned to ensure that better elucidation of the circumstances of the appeal under s. 498 of the WorkCover Queensland Act 1996 is not achieved by burdening an admitted party to the appeal with additional delay, cost and stress. Here, the Industrial Magistrate seems to have been given scant information about the case which the appellant wished to make and what the witnesses proposed to say. There was no opening of the proposed case. Proofs of evidence were not handed up. As I understand it, the Industrial Magistrate was not even told the number of witnesses which the appellant proposed to call. I am unable to detect any error of principle in Her Worship’s approach to the exercise of discretion. Neither am I satisfied that the exercise of discretion was plainly wrong or unjust. On the appeal some reliance was placed upon the explanation given by the appellant for the delay in making the application under s. 320. Summarised, the explanation is that the delay was caused by the need to get consent from an insurer. I accept the explanation. There is no suggestion that the appellant or its legal representatives were dilatory. However, I resist the submission that the delay has been “satisfactorily” explained. That submission invokes concepts relevant to the extension of time or the grant of permission to serve a stale writ. Such authorities are concerned with rejection of an attempt to revive a lost substantive right. An adverse exercise of the discretion at s. 320 does not foreclose any “right”. The insurer’s delay was no doubt a misfortune but I can see no reason for shifting the burden of the misfortune from the appellant to Mr Jones. I dismiss the appeal. I reserve the question of costs. Dated 18 November 2002. D.R. HALL, President. Released: 18 November 2002 Appearances: Mr J. Logan SC, and with him Mr M. Evans, instructed by Tobin King Lateef Lawyers, for the appellant. Mr J. Merrell, instructed by Hall Payne Solicitors, for the first respondent. Mr P. Rashleigh, directly instructed, for the second respondent. -- 2 of 2 --