Aylward v WorkCover Queensland [2003] ICQ 24 (2003) 173 QGIG 798

798 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 July, 2003 INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1999 – s. 509 – appeal against decision of industrial magistrate Nigel Aylward AND WorkCover Queensland (No.C4 of 2003) PRESIDENT HALL 19 June 2003 DECISION This is an appeal against the decision of an Industrial Magistrate rejecting Mr Nigel Aylward’s claim for compensation under the WorkCover Queensland Act 1996 on the ground that any “injury” suffered by Mr Aylward is removed from the statutory definition of “injury” by the operation of s. 34(5)(a). Since Mr Aylward is unrepresented I shall be more expansive than I ordinarily would be in dealing with an appeal such is this. The appeal to this Court provided for by s. 509 of the WorkCover Queensland Act 1996 is not an appeal in which this Court retries the matter in the absence of the flesh and blood witnesses. When s. 509(3) refers to an “appeal by way of rehearing” it indicates: (a) that in searching for any error this Court is not restricted to the pleadings in the Industrial Magistrate’s Court and the order of the Industrial Magistrate, but may roam across the whole of the evidence and the whole of proceedings, and (b) that this Court is in just as good a position to draw inferences from accepted fact and conflicts of evidence resolved by the Industrial Magistrate as was the Industrial Magistrate, compare Warren v. Coombs (1979) 142 CLR 531 at 551 per Gibbs ACJ, Jacobs, and Murphy JJ. But in permitting this Court to draw inferences for itself s. 509(3) indicates that the role of this Court is, if need be, to correct the decision of the Industrial Magistrate. The reference is to an “appeal by way of rehearing”. This Court is not to interfere unless satisfied that the Industrial Magistrate was wrong, compare Norbis v. Norbis (1996) 161 CLR 513 at 518 and Coal and Allied Operations Pty Ltd v. Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 Gleeson CJ, Gaudron and Haynes JJ. If this Court forms a conclusion which differs from that formed by an Industrial Magistrate but is satisfied that the matter is one on which reasonable people may differ, the appeal must be dismissed. That creates real problems for those who appeal against decisions under s. 34(5)(a). That provision withdraws from the definition of “injury” psychiatric or psychological disorders which arise out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment. In very many cases there will be room for difference of opinion about whether management action is “reasonable” and about whether the management action was taken in a “reasonable” way. Here, on the face of the Industrial Magistrate’s decision, there is nothing to indicate that the conclusion was not reasonably open to him. Neither is there any suggestion that there was not evidence before the Industrial Magistrate to support the finding of fact from which the conclusion is drawn. Indeed, Mr Aylward’s complaint is that the Industrial Magistrate should not have accepted or relied upon the evidence. That submission gives rise to real difficulty. An appellant is bound by the conduct of his case at first instance, compare Coulton v. Holcombe (1996) 162 CLR 1 at 7 to 8 per Gibbs CJ, Wilson, Brennan and Dawson JJ and University of Woollongong v. Metwally (2) (1998) 59 ALJR 481 at 483. Two consequences follow here. First, much of the material put in before the Industrial Magistrate was not agitated or put to witnesses. Certainly, much of the material relating to the employer’s investigation of certain “complaints” was neither debated nor put to the witnesses. Notwithstanding the diligence which Mr Aylward has directed to the presentation of his written admissions, Mr Aylward cannot go to those matters now in support of his attack upon the witnesses upon whom the Industrial Magistrate finally relied. If Mr Aylward had gone to the materials, even at a relatively late stage in the proceedings before the Industrial Magistrate, evidence may have been given and witnesses may have been recalled to meet or elaborate upon the matters to which Mr Aylward now points. It is all too late for that. The second consequence of the proposition that Mr Aylward is bound by the conduct of his case at first instance arises because the attack upon the evidence on which the Industrial Magistrate relied is an attack on the credibility and reliability of the witnesses who gave the evidence. Terms such as “biased”, “prejudiced” and “incompetent” are used. The Industrial Magistrate had the advantage of seeing and hearing the witnesses. I accept that the advantage is sometimes over stated. But where the attack on credibility is on the grounds described, the Industrial Magistrate who had the opportunity of hearing and observing the witnesses meet the allegations put to them and meet claims that they have been negligent in adhering to the employer’s policies, is at a real advantage. This Court, cannot by reading the exhibits and transcripts, replicate that advantage. The appeal is totally misconceived and I dismiss the appeal. The respondent does not seek costs. Dated 19 June 2003. D.R. HALL, President. Appearances: Released: 25 June 2003 The appellant in person. Mr G. Jones directly instructed by WorkCover Queensland for the respondent. -- 1 of 1 --