Gambaro v Workers' Compensation Regulator [2017] ICQ 5

Workers' Compensation and Rehabilitation Act 2003

Althaus v Australia Meat Holdings Pty Ltd [2009] QCA 221, cited

Armstrong v Local Government Workcare [2014] ICQ 007, cited

Gambaro v the Workers' Compensation Regulator [2017] QIRC 033, related

MIM Holdings Ltd v AMWU [2000] QIC 38; (2000) 164 QGIG 370, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited

MNSBJ Pty Ltd v Downing [2017] QCA 141, cited

Pritchard v Blackwood [2014] ICQ 002, not followed

Queensland Police Service v Rose [2016] QCA 105, cited

Robertson v Hollings [2009] QCA 303, cited

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, cited

[1] The appellant was formerly employed as a telesales consultant. In late 2015 he tripped over an electrical cord from a radio while at work. He claims that this caused an injury in his left inguinal region.

[2] The appellant's claim was rejected by WorkCover and that decision was later confirmed by the Regulator. His appeal of the Regulator's decision was dismissed on appeal to the Commission.

[3] The appellant has appealed the Commissioner's decision. In this application, the respondent seeks orders dismissing the entire appeal pursuant to s 541(b) or s 558 of the Industrial Relations Act 2016 ("IR Act"), or having the appeal set aside under r 226 of the Industrial Relations (Tribunals) Rules 2011 ("IR Rules). Alternatively, the respondent seeks an order that those grounds of the appeal outside the court's jurisdiction be set aside.

[4] This decision concerns only the respondent's application. It is not a determination of the substantive appeal.

[5] The application has two bases:

• (a) The appellant's failure to comply with r 139 of the IR Rules, namely to state the grounds of appeal concisely; and

• (b) The absence of any ground of appeal.

[6] At the outset, it should be noted that the respondent relies on s 541 of the IR Act as one basis for providing the court with the power to dismiss an appeal that is trivial or not in the public interest. The appellant relies on Pritchard v Blackwood.[1] That case concerned the dismissal of an appeal under the predecessor of s 541 - s 331 of the Industrial Relations Act 1999. It also was a case concerning an appeal under the Workers Compensation and Rehabilitation Act 2003. Section 541 (like s 331 of the predecessor Act) applies only to an "industrial cause", which is defined as an "industrial dispute" or "industrial matter".[2] No argument was addressed to the applicability of s 541 to workers' compensation appeals and, in the absence of such submissions, I am not satisfied that I should follow the reasoning in Pritchard.[3] It is well arguable that a claim for workers' compensation does not fall within this definition and, consequently, the discretion under s 541 is not enlivened. In these circumstances, I will not rely on s 541.

[7] Section 558 relevantly provides:

(1) On an appeal under section 556 or 557, the court may -

(b) allow the appeal, set aside the decision and substitute another decision; or

(d) allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law."

[8] It may be that the power to dismiss an appeal is premised on the appeal having been heard but, as this point was not argued, it is not appropriate to decide whether that power may be exercised in these circumstances.

[9] Rule 139 of the IR Rules requires that a notice of appeal state whether the whole or part of the decision is appealed, and the parts of the decision subject to appeal. It must state the grounds of appeal concisely. The notice should, then, succinctly identify the law or facts supporting each of those grounds and the final relief sought.

[10] A failure to comply with those requirements may be dealt with under r 226:

(1) A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity.

(2) If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may -

(b) set aside a step taken or order made in the proceeding; or

(c) declare a document or step taken to be ineffectual; or

(d) declare a document or step taken to be effectual; or

(e) make another order that could be made under these rules; or

(f) make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate."

[11] The respondent says that the appellant's notice of appeal is noncompliant because it is not concise. The appellant's notice of appeal contains 16 grounds of appeal spanning four pages. Many of the grounds of appeal contain irrelevant excerpts from the transcript of the proceedings below, descriptions of the law and references to matters which do not concern this appeal. The unnecessary inclusion of this material is a failure to state grounds concisely. Adding to the length of this notice were the documents the appellant attached to it. Many were irrelevant and were dealt with at the hearing of this application.[4]

[12] Many of the grounds of appeal in this matter are difficult to understand. The requirement that grounds of appeal be stated concisely encompasses not only a demand for brevity, but also clarity. It is a breach of r 139 to inadequately articulate the actual basis of each ground of appeal.

[13] The purpose of the rules is to provide for the just and expeditious disposition of proceedings.[5] It is contrary to this purpose for a party to file protracted or ambiguous notices of appeal, or to supplement a notice with large amounts of material that will not assist the court in the determination of the matter. The consequence of the appellant's noncompliance with the rules is that the court may set aside or strike out part or all of the notice of appeal.[6]

[14] Although the appellant is unrepresented, this does not excuse his noncompliance. A lack of legal representation is a misfortune, not a privilege. In Robertson v Hollings,[7] Keane JA (with whom Fraser JA and Cullinane J agreed) said:

"[L]itigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted."

[15] The usual consequence of an appeal not complying with the rules in cases such as this one would be to set it aside. To set aside an appeal, however, does not necessarily prevent an appellant from continuing the appeal. A finding that the grounds of appeal are not stated concisely is not one which necessitates a finding that there is no arguable case. Indeed, where an appellant has an arguable case on appeal, they should not be denied the opportunity to have their case heard for mere noncompliance with the rules if appropriate amendments can remedy the situation.

[16] In some cases, though, a more appropriate course of action may be to dismiss the appeal. As Keane JA explained in Robertson:

"It would be quite wrong for this court to promote the furtherance of a pointless appeal by allowing the amendments to the notice of appeal to stand. Justice and mercy both require that leave to amend the notice of appeal be refused and the notice of appeal be struck out."[8]

[17] Where a party is unrepresented, a court should be reluctant to dismiss an appeal that is defective only because of the appellant's inability to clearly articulate the grounds of an appeal.[9] Further, applications to summarily dismiss an appeal should not be encouraged where that would amount to an interlocutory determination of the substantive appeal.[10] However, appeals ought to be dismissed where no arguable ground of appeal is raised. Rule 226 allows an examination of the notice of appeal for this purpose where there has been a failure to comply with the rules.

[18] As such, it is appropriate to examine each of the appellant's ground of appeal to determine whether the notice reveals an arguable case.

Ground (a): The Commissioner erred in concluding that the appellant failed to discharge his onus of proof

[19] The wording of this ground in the notice of appeal is confusing and unclear. The appellant claims that the Commissioner erred by relying solely on s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("WCRA") in determining whether the appellant had discharged his onus of proof. The appellant then contends that the Commissioner's conclusion is not supported by the evidence.

[20] In his submissions regarding this application, the appellant elaborates that the Commissioner failed to have regard to the evidence that demonstrated he had discharged his onus of proof.

[21] The obscure wording of this ground of appeal means it may be interpreted as the Commissioner erring on either the no evidence ground or the failure to have regard to a material consideration ground. Its ambiguity alone would render it liable to be struck out. Nevertheless, on the reading of his submissions in this application, it appears that the appellant relies on the latter interpretation.

[22] It is an error of law to fail to have regard to relevant evidence that would materially affect the outcome of a decision.[11] In his submissions, the appellant appears to suggest that the Commissioner failed to have regard to his testimony, and the evidence of Mr Wright and Mr Olsen.

[23] In her decision, the Commissioner made a clear assessment of the appellant's evidence that ultimately informed her decision. This is perhaps most evident in the following parts of her reasons:

"Mr Gambaro explained that when the hernia was found on the ultrasound he was confused as to what had caused it and was under duress as a result of having his employment terminated. He was trying to find reasons the hernia had occurred and believed factors such as poor posture and ergonomics in the workplace caused it. When the hernia was found not to be present he realised he was mistaken in focussing on these factors. However, his evidence also shows that he was not just focussing on the cause of the hernia but was seeking to establish the cause of the groin pain. He was concerned about a range of other possible causes, including cancer, lymphoma and 'something being stuck inside'.

His evidence about his active consideration of other possible causes of his groin pain highlights that he was not certain that poor posture and ergonomics were to blame. In those circumstances, I have great difficulty accepting that if the groin pain commenced at the time of the cord tripping incident or within one to two weeks of it, Mr Gambaro would not have considered a connection between the two events then. As I found earlier, Dr Sinnathamby was not informed of the cord tripping incident on 10 January nor was it reported to Dr Lancashire until June, after he had been advised a hernia was unlikely to be the cause of his groin pain and his WorkCover claim had been rejected. Although the incident was included in the second of the Work Health and Safety complaints, no mention was made of groin pain resulting."[12] (citations omitted)

"I am not satisfied that Mr Gambaro has discharged his onus of proof. Although the medical evidence supports a causal link, those opinions are predicated on the onset of groin pain being proximate to the incident. Whether the link can be established is a matter of fact to be determined by the Commission and is required in order for the injury to meet the legal requirements of s 32(1) of the Act. The balance of probabilities is not satisfied by a mere possibility of a compensable injury. In this case insufficient evidence exists about the objective fact of when the incident occurred to infer the other important fact about the timing of the onset of groin pain. The Commission may not in the process of determining a question of fact substitute speculation for satisfaction on the balance of probabilities."[13]

[25] The Commissioner also assessed and reached conclusions on the evidence of Mr Wright and Mr Olsen.[14] It therefore cannot be said that the Commissioner has disregarded a material consideration as alleged by the appellant.

[26] While the appellant has framed this ground as a question of law, it is clear that what this ground truly amounts to is a challenge to the Commissioner's finding of fact. But, as was explained in Waterford v Commonwealth,[15] "[t]here is no error of law simply in making a wrong finding of fact".

[27] A party may only appeal a decision of the Commission on the grounds of error of law or want of jurisdiction.[16] Leave is required to appeal on any other basis.[17] On the basis that leave has not been sought in this case, this ground cannot succeed.

Ground (b): The Commissioner failed to take into account the s 31

[28] The appellant contends that the Commissioner fell into error by failing to take into account s 31 of the WCRA, which defines the word "event". The appellant claims the error lies in the Commissioner's failure to address the nature of the injury. However, the appellant does not identify how the Commissioner's failure to discuss s 31 constitutes an error in her reasoning.

[29] Whether an "event" occurred was not in issue before the Commissioner and thus there is no error. The appellant's true contention appears to be that the Commissioner did not reach the "correct" factual conclusion. An error of fact, however, is not an appealable error.

[30] This ground must therefore fail.

Ground (c): The Commissioner failed to consider ss 32(2), 3(b) and (4)

[31] The appellant contends that in failing to have regard to the above sections, the Commissioner fell into error and consequently did not take into account the escalation of the injury.

[32] Section 32(2) is only relevant where s 34(2) and s 35(2) apply. Neither of those sections apply to the appellant's case.

[33] Section 32(3)(b) defines the circumstances in which an aggravation may be regarded as an "injury" for the purposes of s 32. This is irrelevant to the appellant's case. There was no contention that the injury suffered by the appellant was an aggravation. For the same reason, s 32(4) is also irrelevant.

[34] This ground must therefore fail.

Ground (d): The Commissioner failed to consider s 34

[35] The appellant contends that the Commissioner fell into error by failing to acknowledge the relevance of s 34. That section provides the circumstances where a worker's injury is taken to arise out of, or in the course of, the worker's employment. The Commissioner is said to be in error for failing to have regard to the evidence of Ms Deborah Williams, the appellant's manager.

[36] Once again, the appellant appears to be questioning the Commissioner's findings of fact, as opposed to identifying an error of law. Had the Commissioner disregarded the evidence of Ms Williams as to whether the appellant had reported the incident, an error may have been shown. However, this is not the case. The Commissioner explicitly referred to the evidence of Ms Williams in which the witness denied receiving any reports from the appellant on the date alleged.[18]

[37] The appellant has failed to demonstrate any error. The Commissioner's finding was that although the appellant may have suffered an injury, there was no evidence demonstrating the injury was caused by the cord tripping incident. Consideration of s 34 was irrelevant to this issue. This ground must therefore fail.

Ground (e): The Commissioner failed to consider s 36A

[38] The appellant contends that the Commissioner "ignored" s 36A of the WCRA. He says that it is "relevant to the facts in the matter before Commissioner in which the medical evidence confirms that the injury of the incident ... was a sustainable injury and manifested with as a progressive injury".

[39] Section 36A concerns the time limits for claims for latent onset injuries. There was no submission that the appellant filed his complaint out of time. Further, Mr Gambaro's injury is not an "insidious disease", thus it cannot be regarded as a latent onset injury.[19] This ground must therefore fail.

Ground (f): The Commissioner failed to apply s 131

[40] Section 131 sets the time limits for applying for compensation under the WCRA. There was no contention that the appellant did not comply with the requirements of this section. Accordingly, the Commissioner did not refer to it. There is no error.

Grounds (g)-(h): The Commissioner failed to apply ss 133 and 133A

[41] The appellant contends that the Commissioner fell into error by failing to apply ss 133 and 133A of the WCRA. Those sections impose reporting duties on employers when a worker has sustained an injury at work. It is an offence for the employer to neglect these duties.

[42] These sections are irrelevant in a proceeding regarding whether the appellant suffered an injury compensable under the WCRA. Whether the appellant's employer complied with its reporting obligations had no bearing on the proceeding below. This ground must fail.

[43] The appellant relies on a number of grounds that can be summarised as follows:

• The Commissioner failed to consider s 277;

• The Commissioner made no determination under s 278;

• The Commissioner did not apply s 279;

• The Commissioner did not apply s 280;

• The Commissioner made no ruling pursuant to s 284;

• The Commissioner failed to order the employer comply with s 285; and

• The Commissioner failed to enforce compliance pursuant to s 287.

[44] These provisions are contained within Chapter 5 of the WCRA, which governs an injured worker's ability to claim damages. Relevantly, s 237 provides that Chapter 5 only applies where a worker has received a notice of assessment. In this case, the appellant did not receive a notice of assessment. The sections cited by the appellant were irrelevant to the proceeding before the Commission. They relate to obligations of parties in pre-court procedures to facilitate the just and expeditious resolution of a claim for damages. The appellant's claim is for compensation, not damages. As such, no error arises.

Ground (p): The Commissioner failed to apply s 534

[45] The appellant asserts that the Commissioner failed to make a ruling under s 534. Section 534 prohibits any person making a false statement to the Regulator, WorkCover, a self-insurer or registered person. The appellant alleges that Ms Williams made a number of false statements when giving evidence before the Commission.

[46] Section 534 is irrelevant to a proceeding in the Commission. There was no statement made to the Regulator or WorkCover in that proceeding. Moreover, whether the witness was in contravention of that provision was not relevant to the proceeding below.

Ground (q): The Commissioner failed to apply s 536

[47] The final ground of appeal is that the Commissioner did not have regard to s 536. That section imposes a duty on employers who reasonably believe a person is attempting to defraud WorkCover to report that suspicion. It is an offence to neglect that duty. The appellant states that counsel for the respondent, Ms Callaghan, was under an obligation to advise the Commissioner that a witness had committed perjury. The appellant does not elaborate as to how this led the Commissioner into error.

[48] As with grounds (g) and (h), whether an employer has complied with its reporting obligations is irrelevant as to a worker's entitlement to compensation under the WCRA. The ground must also fail because the person alleged to have breached their reporting obligation was not subject to a duty under s 536. An employer's barrister is not an employer for the purposes of s 30 of the WCRA.

[49] Having regard to the above analysis of the grounds of appeal, it is clear that the notice of appeal does not disclose an arguable case. Setting aside the notice of appeal to allow the appellant to amend his notice of appeal would not change the ultimate result. It was not suggested that there were any other grounds upon which the appellant might seek to rely. An application without merit is an abuse of process and should not be allowed to remain on foot.[20]

[50] It is therefore appropriate for the court to exercise its discretion under r 226 to dismiss the appeal.

[51] The respondent seeks the costs of this application and the appeal pursuant to s 541(c) of the Act.

[52] The general power to award costs is governed by s 545 of the IR Act. That section provides:

(1) A person must bear the person's own costs in relation to a proceeding before the court or commission.

(2) However, the court or commission may, on application by a party to the proceeding, order -

(a) a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied -

(i) the party made the application or responded to the application vexatiously or without reasonable cause; or

(ii) it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; ..."

[53] Although the respondent did not make specific submissions as to how the court's discretion had been enlivened, this would have been unnecessary.

[54] In MIM Holdings Ltd v AMWU,[21] Hall P explained that the phrase "without reasonable cause" means "objectively recognisable as one which could not succeed at the time when the application was made".

[55] As has been explained above, it is abundantly clear that this appeal cannot succeed. The appellant has no prospect of success on any of the grounds of appeal. An order for costs is therefore appropriate.

[56] Accordingly, I make the following orders:

1. The appeal is dismissed.
2. The appellant pay the respondent's costs of the application and the appeal on the standard basis.

[1] [2014] ICQ 002.

[2] Industrial Relations Act 2016 sch 5.

[3] Where, it seems, this matter was not argued either.

[4] Transcript of proceedings: T1-12 - T1-17.

[5] Industrial Relations (Tribunals) Rules 2011 r 6.

[6] Industrial Relations (Tribunals) Rules 2011 r 226.

[7] [2009] QCA 303 at [11].

[9] Althaus v Australia Meat Holdings Pty Ltd [2009] QCA 221 at [20].

[10] Queensland Police Service v Rose [2016] QCA 105 at [37].

[11] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.

[12] Gambaro v the Workers' Compensation Regulator [2017] QIRC 033 at [100]- [101].

[15] [1987] HCA 25; (1987) 163 CLR 54 at 77.

[16] Industrial Relations Act 2016 s 557(1).

[17] Industrial Relations Act 2016 s 557(2).

[19] See Armstrong v Local Government Workcare [2014] ICQ 007 at [6].

[20] MNSBJ Pty Ltd v Downing [2017] QCA 141.

[21] [2000] QIC 38; (2000) 164 QGIG 370 at 371.