QIRC: Leave of the employer to be heard – no when the worker is appealing

Brisbane City Council v Gillow & Simon Blackwood (Workers’ Compensation Regulator) [2016] ICQ

There has been some uncertainty as to when an employer may seek leave to intervene and be heard. Justice Martin has made clear that in the instance of an appeal filed by worker, the employer cannot intervene.

Martin J:

Does the Commission have the power to grant leave to appear in workers’ compensation appeals?

[43] The first step in answering this question is not to consider the provisions of the IR Act but to examine the WCR Act and determine what, if anything, it says about this matter.
[44] The right to appeal a decision of the Regulator is afforded by Chapter 12 Part 3 of the WCR Act. So far as it is relevant, it contains the following provisions:

Section Explanation
549 The circumstances in which a claimant, worker, employer, insurer, or WorkCover may appeal, and the circumstances in which a claimant, worker, insurer or an employer may become a party to an appeal.
550 The procedures for an appeal; the time for commencement, filing and service.
552 The notice of time and place for the hearing. The provision of forms, statements and statements of facts. The admissibility of forms and statements – they are admissible as evidence “only if they are admissible under the rules of evidence for the hearing.”
552A Conferences of the parties.
552B A party may be represented by a lawyer at a conference or the hearing of an appeal with the agreement of the parties or the appeal body’s leave. (This is in contrast to s 319 of the IR Act.)
553 Application of parts of the Uniform Civil Procedure Rules 1999 (“UCPR”)and all of the Industrial Relations (Tribunals) Rules 2011 (“IRTR”). This has the effect of incorporating the rules in the UCPR concerning non-party disclosure and alternative dispute resolution. The latter allows disputes to be referred to external mediators and case appraisers.
554 The exchange of evidence before a hearing.
555 The adjournment of hearings.
556 The provision of further medical evidence.
557 The correction of defects in proceedings.
558 The orders that an appeal body can make including the costs.
559 How a decision should be given.

[45] The reference to the IRTR in s 553 has the effect of incorporating its provisions as provisions applicable to appeals under this part of the WCR Act. Thus, it provides that the following rules are to be applied to appeals:

  • (a) Starting proceedings,
  • (b) Amending proceedings,
  • (c) Service (these will apply where they do not conflict with s 550 WCR Act),
  • (d) The making of directions orders,
  • (e) Evidence and affidavits,
  • (f) Attendance notices,
  • (g) Non-party production,
  • (h) Specific powers and practices of the Commission, and
  • (i) Miscellaneous matters.

[46] It would seem, then, that complete provision has been made for the right of appeal and the mechanics of an appeal. Why then, would one look to the IR Act for further powers? In this appeal it is because the WCR Act does not provide for the Commission to give an entity leave to appear on an appeal under the WCR Act. The BCC submits that the Commission has power under the IR Act.
[47] Section 677 of the IR Act is a provision of general application. It provides:

“The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this or another Act, unless the contrary intention appears.” (emphasis added)

[48] Section 320 of the IR Act concerns the “basis of decisions of the Commission”. Section 320(2)(b) provides the Commission with a power “in proceedings” to “inform itself on a matter it considers appropriate in the exercise of its jurisdiction.” Section 677 would, in the absence of a contrary intention, apply the provisions of s 320 of the IR Act to an appeal under the WCR Act.
[49] The analysis of these sections is complicated by the express definition of “proceedings” in s 319. It provides that, in that section, “proceedings means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.” It was argued that, because “proceedings” is defined in that way for the purposes of s 319 (and nowhere else in the IR Act) then “proceedings” in s 320 can only mean proceedings under the IR Act. That, though, overlooks the operation of s 677. It does not purport to change the meaning of “proceedings”, it merely (in the absence of a contrary intention) engages the relevant provisions of the IR Act when the Commission exercises jurisdiction under another Act.
[50] The definition of “proceedings” in s 319 has been present in the IR Act since its enactment in 1999. It was not present in the Workplace Relations Act 1997. In the “Explanatory Notes” which accompanied the Bill which became the IR Act, the following appears: “Clause 319 provides a definition of “proceeding” for the purpose of this clause. The clause specifies by whom a person ordered to appear or to be represented in a proceeding may be represented.”[18]
[51] The IR Act has always contained s 677 in its present form. (It preserved s 454 of the Workplace Relations Act 1997.) But, the operation of s 677 is subject to the demonstration of a contrary intention. And because the section relates to the application of other legislation, it is appropriate to consider whether that other legislation does demonstrate a contrary intention.
[52] An examination of the provisions of Chapter 13 Part 2 of the WCR Act discloses a series of provisions which, together with the parts of the UCPR and the IRTR which are made to apply, effectively provides a complete statement of the matters necessary for the conduct of an appeal. The completeness of these provisions leads to the conclusion that “the contrary intention appears” and s 677 of the IR Act does not apply.
[53] A question which might arise is why there was seen to be a need for the insertion of the definition of “proceedings” in s 319 when s 677 would, in the ordinary course, make the other provisions of s 319 apply. It might be said that such a definition is mere surplusage. But that would be contrary to the accepted principle that a court is not at liberty to consider any word or sentence as superfluous or insignificant. It was put this way in Project Blue Sky Inc v Australian Broadcasting Authority[19]:

“[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”[20] (citations omitted)

[54] The work that the definition of “proceedings” has to do is that it will apply, unlike s 677, even if a contrary intention in the other legislation can be found. Thus, s 319 would apply to workers’ compensation appeal proceedings so far as legal representation is concerned except that the provisions of s 552B make specific provision for representation. Section 552B was inserted into the WCR Act in 2005[21]. In this case the later provision should be read as impliedly repealing s 319 of the IR Act insofar as it would otherwise apply to representation in these types of appeals.
[55] In Karas, Hall P recognised that Middleton and other cases were decided on an early version of the WorkCover Queensland Act 1996 and that it was doubtful whether a grant of leave to appear was consistent with s 549 of the WCR Act. His Honour was, with respect, correct. In the earlier legislation no provision was made for an employer to become a party to an appeal unless, of course, the employer was the appellant. That changed when s 549 of the WCR Act was amended to make specific provision for an employer to become a party to an appeal, that is, when WorkCover was the appellant.
[56] Section 549 sets out a series of events which give rise to a right to various entities to become parties to an appeal. It should be noted that the amendments which give a specific, but restricted, right to employers to become a party to an appeal were made in the light of decisions of the Commission and the Court which allowed an employer to be heard on an appeal. The amendments made to s 549[22] added subsections 3 and 4 and, thus, gave an employer a limited right to take part in appeals. It would be inconsistent with the history of the legislation to conclude that, notwithstanding the confined legislative provisions allowing an employer to be a party, the general provisions of the IR Act can be called upon to allow an employer to take part in an appeal by other means.
[57] The Commission does not have power to give an employer leave to appear on appeals under Chapter 13 Part 3 of the WCR Act.
[58] If I am wrong in that conclusion and there is a discretion available to allow an employer to be given leave then I have no hesitation in holding that the Vice President:

  • (a) correctly set out the factors relevant to an exercise of discretion, and
  • (b) correctly applied the appropriate considerations in reaching her conclusion.

[59] The appellant did not demonstrate any error in the way her Honour exercised the discretion.

The second appeal – is the BCC a “party aggrieved”?

[60] It is not.
[61] Section 561 of the WCR Act allows a “party aggrieved” to appeal to this Court. The use of the term “party” should be construed consistently. Section 549 tells a reader who the parties to an appeal are or can be. Section 561 does not allow a person who has an interest, but was not a party to the proceedings in the Commission, to appeal. The BCC has no standing to appeal this decision.
[62] In deference to the arguments raised, I will deal briefly with the submission concerning the operation of s 559 of the WCR Act.
[63] Section 559 provides:

559 Decision of appeal body

The appeal body must give—

(a) the appeal body’s decision in a hearing in open court; and
(b) a written copy of the decision to each party.”
[64] Section 32CA of the Acts Interpretation Act 1954 relevantly provides:

32CA Meaning of may and must etc.

(2) In an Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.

…”

[65] Section 559 is, through the use of the word “must”, obligatory. But, as the parties had consented to an order being made, there was no need for the Commissioner to give any reasons. Indeed, there were no reasons he could give. He simply issued the order.
[66] The question to be answered is: what effect does a breach of its provisions have? The usual approach taken by the courts is to examine the consequences that flow from requiring strict compliance with a procedure such as that in s 559. In Project Blue Sky Inc v Australian Broadcasting Authority [23]McHugh, Gummow, Kirby and Hayne JJ said:

“[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties void every act done in breach of the condition.”[24]

[67] Section 559 can be traced back to s 457 of the WorkCover Queensland Act 1997 which provided that: “A tribunal must give a written decision for an application for compensation referred to it with reasons for the decision.”
[68] None of the various versions of that section which have existed since then have prescribed any consequence for the failure to comply with the section. A reasonable reading of s 559 is that it is designed to assist the parties to understand the reasoning which led to the decision. There is nothing in the WCR Act which suggests that a failure to comply results in the invalidity of that particular decision. In these circumstances, the action of the Commissioner, while not complying with the Act, did not result in the invalidation of the consent order.

 

David Cormack – Brisbane Barrister & Mediator

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