McEnearney v Simon Blackwood

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, cited

Brisbane City Council v Gillow (2016) 255 IR 268; [2016] ICQ 7, distinguished

Carlton v Blackwood (2017) 264 IR 414; [2017] ICQ 1, applied

Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, cited

Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, cited

Davidson v Blackwood [2014] ICQ 8, cited

IG Markets Ltd v Crinion [2013] EWCA Civ 587, cited

Li v Attorney General for New South Wales [2019] NSWCA 95, cited

PB O'Neill instructed by the Workers' Compensation Regulator for the respondent

[1] Sue-Maree McEnearney was employed by OCS International Pty Ltd. Her precise role was the subject of debate but she was, at least, engaged to perform tasks of a bookkeeping or accounting nature.

[2] She claims that, as a result of particular conduct by the employer, she has suffered a psychological or psychiatric injury. Her claim was rejected by the Regulator and the Queensland Industrial Relations Commission.

[3] Ms McEnearney has assembled 17 grounds of appeal concerning the substantive decision dismissing her appeal below and a further ground with respect to the costs order made by the Deputy President.

[4] An appeal to this court is by way of rehearing on the evidence and, to be successful, an appellant must demonstrate an error or errors. The relevant principles have been set out on many occasions.[1] For the purposes of most of the grounds of appeal in this case, the governing principle is set out in Carlton v Blackwood:

"[28] But, in this appeal, the appellant only argues that there was not 'sufficient probative evidence'. If that is the case, then that will not be an error of law because the task for the appellant is to show an absence of evidence. Provided that there is some factual basis for the Commissioner's finding, there can be no error of law on the 'no evidence' ground. If the Commissioner made a finding for which there was no evidence, that will be an appellable error if it is relevant to the case conducted before the Commissioner." (citations omitted)

[5] Another issue which arises in some of the grounds of appeal is that, even if they are correct in identifying an error, did that error have any relevant effect on the decision?

[6] There are two broad categories of grounds of appeal:

• (a) those that assert error in making a finding or not making a finding, and
• (b) a number of miscellaneous or procedural complaints.

[7] There are three miscellaneous grounds. The first is:

"(1) The Commission erred in ordering, on Tuesday, 31 January 2017, that Mr Stephen Laverick be made an intervener and that the entirety of the transcript of the testimony of the appellant be immediately provided to the employer Mr Stephen Laverick, the key witness for the respondent, prior to him giving his testimony."

[8] The order the subject of this ground of appeal was made on the first day of hearing. The Deputy President said the following with respect to it:

"[5] During the first day's hearing, much of the appellant's evidence-in-chief concerned allegations of fraud, misleading and deceptive conduct, and insider trading against Mr Stephen Laverick, who at relevant times had been the managing director of the employer. Given the potentially serious implications of the allegations, as well as the need for Mr Laverick to be able to obtain advice about self-incrimination when he was giving evidence, I formed the view that, in the interests of natural justice, Mr Laverick should be granted leave to intervene in the proceedings; such leave being limited to matters concerning his alleged illegal conduct.

'[I] expressed the concern years ago about the employer not being represented in these proceedings to be able to deal with these very serious allegations of fraud you're making against the company, and in particular against Mr Laverick. Having heard your evidence yesterday, you continue to make what are very serious allegations of fraud and other improper behaviour, and despite my warning to you, if you like, about implicating yourself, you've decided, as is your right, to continue to give that evidence.

...I'm concerned, and I'm going to make a direction to the regulator, that Mr Laverick's interests need to be protected if he so desires, and notwithstanding the judgment of the President in Gillow, I am inclined to give leave to Mr Laverick - both Mr Lavericks - to be represented in these proceedings for the limited purpose of protecting their interests. Not otherwise, not for the purpose of participating in the appeal proper, but merely for the purpose of providing them what seems to me to be the required amount of natural justice to enable them to seek legal advice insofar as their potential to incriminate themselves, or be incriminated or accused of fraudulent and illegal behaviour is concerned.

[in relation to giving Mr Laverick leave]...That's one of the reasons that I've come to the conclusion, or the tentative conclusion to which I've come. He's going to be giving evidence. The regulator is seeking to adduce evidence for the purpose of defending the appeal, not for the purpose of protecting Mr Laverick from incriminating himself or otherwise being put in a position where evidence that would suggest that he's engaged in illegal activity is given.'"

[9] The appellant argues that the sections of the Industrial Relations Act 1999 upon which the Deputy President relied did not give power to make such an order. She says that a consequence of the error in making such an order was that:

• (a) the appellant was unfairly disadvantaged, and

• (b) the testimony of Mr Laverick was tainted and lacked all credibility.

[10] The appellant relies upon the decision in Brisbane City Council v Gillow[2] where I held that the Commission does not have the power to give an employer leave to appear on appeals under Chapter 13 Part 3 of the Workers' Compensation and Rehabilitation Act 2003. That, as the Deputy President said, did not apply because the employer did not seek leave to appear. The purpose of the application by Mr Laverick was to be represented given the extremely serious nature of the allegations made against him. Those allegations included fraud, misleading and deceptive conduct and insider trading. Some of them might give rise to possible criminal implications.

[11] Mr Laverick was not made a party to the appeal - he was given leave to intervene. The power to do that can be found under s 274 of the Industrial Relations Act 1999.[3]

[12] The appellant does not explain how she was "unfairly disadvantaged". The nature of the allegations she made against Mr Laverick was so serious and was so unlikely to be within the detailed knowledge of the respondent that this was a case where the power under s 274 could be exercised. The power is one which should be exercised cautiously and rarely. It will not often occur that the circumstances will be as extreme as they were in this case.

[13] The complaint is made that Mr Laverick was provided with a transcript of the appellant's evidence. In the circumstances before the Deputy President that was only appropriate given that leave to intervene was granted on the basis of the nature of the allegations made. The assertion that his testimony was, therefore, tainted does not stand examination. Had Mr Laverick been a self-insured employer then he would have been entitled to be present at all times during the hearing and, while the appellant makes accusations that access to the transcript allowed Mr Laverick to "fashion his numerous fabrications", the advantage he had was no more than is commonly available to persons given leave to intervene.

[14] The second of the miscellaneous grounds is:

"(4) The Commission erred in accepting the submissions of the Regulator, with the exception of paragraph 20, as his 'reasons for decision'."

[15] In the reasons of the Deputy President the first 18 paragraphs are taken up with: a general introduction, the description of the background of the appellant and the employer, an overview of the employment relationship, and the conduct of the case. After that, the Deputy President said:

"[19] The regulator's submissions deal comprehensively with the myriad issues raised by the appellant. They are well reasoned, fair and accurate. I accept and adopt them as my reasons for decision; although I would not draw the inference suggested at paragraph 20. However, it is necessary that I make some further observations.

[20] Both the appellant and the regulator accept that the outcome of this case turns on credit. As Ms McEnearney put it in her submissions in reply: 'It is clear the outcome of this case rests on the credibility of the Appellant versus the credibility of the employer, specifically the General Manager Mr Stephen Laverick.'

[21] Largely for the reasons put by the regulator, I do not find Ms McEnearney to be a credible witness. She, as the appellant, bears the onus of proof to persuade me, on the balance of probabilities, that she has sustained a compensable injury. This she has not been able to do. Although I accept, having regard to the nature of her accusations against Mr Laverick, that the Briginshaw standard applies, I am not even satisfied that she has made out her case on the general standard of proof." (emphasis added)

[16] If the Deputy President had gone no further than that, then I would have been inclined to conclude that he had erred, at least, in not providing sufficient reasons. But, after stating that he adopted the submissions of the regulator as his reasons, the Deputy President went on to provide reasons for him not accepting that the appellant was a credible witness. He examined three instances which he said were sufficient to demonstrate why he concluded that he could not accept the appellant's evidence.

[17] It is an error of law not to provide reasons for a decision. And the mere repetition of a party's submissions or the incorporation of them by reference in the decision does not satisfy the requirement that reasons be given. The practice of substituting the submissions of one or both parties for the adequate consideration of the issues in a matter is to be avoided. Some instances where that has occurred will demonstrate why.

[18] In Commissioner for Railways for the State of Queensland v Peters[4] the New South Wales Court of Appeal considered reasons which dealt with the evidence and submissions of the parties in the following terms:

"The evidence in this matter is all contained in the applicant's case and the circumstances of the commencement of the relationship between the applicant and the first respondent and what transpired thereafter up until the date of injury and indeed thereafter, are all detailed therein. There is no reason why the whole of the applicant's evidence and the other evidence contained in the applicant's case should not be accepted and I do accepted in its entirety."

The trial judge then noted that he had incorporated into his judgement the transcript of the submissions made by all the parties. Unsurprisingly, on appeal, all parties accepted that those reasons were inadequate. Kirby P (with whom Priestley JA and Waddell AJA agreed) said at page 417:

"(3) It may be possible to conceive an instance where the incorporation of submissions in reasons for judgment would be an adequate compliance with the judicial duty to provide reasons. That was certainly not the case here. ... This Court has no idea of the basis upon which Moroney CCJ entered his award. Unless a judicial officer states that basis, there is a risk that he or she will not have addressed attention adequately, or at all, to the arguments of the parties. Certainly, there is the risk that the parties will so conclude and that is damaging to the administration of justice;"

[19] The Court of Appeal in this State considered this in Camden v McKenzie[5] where a trial judge determined the case on the basis that the issue as to what relevant representations were made depended on his assessment of the credibility of the appellants and the first respondent. The trial judge said:

"I am now firmly of the view that, so far as credibility be concerned - and therefore the acceptability of the evidence of those three persons be concerned - the evidence of [the first respondent] was the more credible and therefore I accept his evidence in preference to that of [the appellants]. ... The submissions of the [respondents] capture my own views. ... The analyses of this evidence contained in the submissions by both Mr Ashton and Mr Perry support the conclusions I reached as to the extent to which I could rely on the evidence of [the appellants]."

With respect to those statements, Keane JA (with whom Philip McMurdo and Douglas JJ agreed) said:

"[36] The course taken by the learned trial judge of explaining his reservations as to the credibility of the appellants by adopting submissions made by the respondents is to be deprecated. It is a course distinctly apt to give an impression to the losing party that the case has been decided without proper consideration. That impression will not be allayed by an assurance from the judge that the submissions of the parties have been read, even several times."

[20] Another example of the way in which this use of submissions has been considered is in IG Markets Ltd v Crinion.[6] In that case about 94% of the words of a judgment came from the submission of one party. Sir Sedley said:

"[38] Unequivocal acceptance of one party's case has always posed a problem for judges. To simply adopt that party's submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgement of the latter's arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys."

[21] In Li v Attorney General for New South Wales[7] Brereton JA undertook an examination of the authorities on this issue in this country, the United States of America, and Canada. He said:

"[132] Nonetheless, it is clear that extensive replication, whether or not attributed, of the submissions of one or both parties will not of itself amount to error, so long as the reasons sufficiently reveal that the decision-maker gave independent consideration to the relevant issues. However, this requires that the reasons appear to a reasonable person in the position of the unsuccessful party to demonstrate that the decision-maker has actively engaged with its submissions and contentions, and brought to bear an independent and impartial judgement founded on reason and logic. That requirement will not be satisfied if the reasons leave an impression that arguments have been embraced without serious consideration having been given either to the contrary point of view, or to the application of an independent point of view, as will be the case where reasons which substantially incorporate, reproduce and/or adopt the submissions of one party do not contain indicia, beyond mere formulaic and stylistic changes, that they are the product of the active application of an independent and impartial mind, which has absorbed and analysed the competing submissions to reach a personal conviction on the part of the judge that the orders to be made are just and in accordance with law."

[22] The major issue in this case, as agreed by the parties, was one of credibility. If Ms McEnearney was believed then she would have succeeded. The Deputy President did not rely solely on the submissions and argument of the Regulator. He went further. He examined three matters which, he said, sufficed "to demonstrate why [he did] not find the appellant to be a credible witness".[8] He concluded his examination of those matters with the following:

"[36] Ms McEnarney does not seem to appreciate that this case is not about whether Mr Laverick engaged in fraudulent or illegal conduct. Even if some of the inconsistencies in his evidence to which she points are made out, for the reasons previously given, I am not satisfied that Ms McEnearney was concerned about them, or that they occasioned her to be stressed. Nor am I satisfied that she was aware, during the course of her employment, of many of the matters of which she now complains. I repeat that, in my view, she discovered most of these matters when she trawled through OCSI's records after she left her employment on 10 May 2012."

[23] The third of the miscellaneous grounds is:

"(5) The Commission erred in accepting that 'the Briginshaw standard applies.'"

[24] The Deputy President referred to Briginshaw v Briginshaw[9] in the following paragraph in his reasons:

"[21] Largely for the reasons put by the regulator, I do not find Ms McEnearney to be a credible witness. She, as the appellant, bears the onus of proof to persuade me, on the balance of probabilities, that she has sustained a compensable injury. This she has not been able to do. Although I accept, having regard to the nature of her accusations against Mr Laverick, that the Briginshaw standard applies, I am not even satisfied that she has made out her case on the general standard of proof."

[25] The principle in Briginshaw is simply that the civil standard of proof varies according to the gravity of the allegation, its inherent probability (or improbability) and the consequences of an affirmative finding. Given the accusations made by Ms McEnearney the higher standard would necessarily apply with respect to those accusations. But it is not necessary to pursue that argument further because the Deputy President said that he was satisfied on the ordinary standard that the appellant had not made out her case. In other words, he did not apply what is sometimes referred to as the Briginshaw standard.

[26] In this ground, the appellant asserts that the Deputy President erred in finding that the pre-existing friendship between the appellant and her former employer formed part of the tapestry against which the matter was to be considered. As with many of the grounds of appeal, this demonstrates that the appellant has misconstrued the Deputy President's reasons. The Deputy President said:

"[13] While it is the employment relationship that is relevant to the workers' compensation claim, the fact that the appellant had an extensive relationship with her employer does colour and provide context to the relationship as a whole. That relationship forms part of the tapestry against which this matter must be considered."

[27] That statement is entirely unexceptionable. It would be remiss of a decision maker to ignore the background to an employment relationship if it were otherwise relevant. The findings that were made were supported by the evidence which was presented.

[28] In this ground, the appellant says that an error was made in finding that she was not the financial controller. The appellant seeks to re-argue this point. There was, before the Commission, evidence which supported the conclusion that she was not the financial controller but that her role was one which involved accounting, bookkeeping and administration. The Deputy President preferred that evidence and no error has been demonstrated.

[29] In this ground, the appellant says that the Commission erred in finding that she was not a credible witness. This is nothing more than an assertion that her evidence should have been accepted and that the other witnesses' evidence should have been rejected.

[30] The Deputy President identified a number of issues which satisfied him that he could not believe the appellant. They included the allegations of being kidnapped, the allegations that Mr Laverick had engaged in insider trading and copyright fraud, and that she was forced to participate in fraudulent, misleading and deceptive conduct. The examination of these matters by the Deputy President demonstrates that he carefully examined this important part of his determination and, for good reason, found that the appellant could not be believed.

[31] The argument for the appellant consisted of only a brief paragraph in her original submissions. This was expanded in her reply submissions to some 71 paragraphs. It consisted of nothing more than a re-argument of the issues. She has failed to demonstrate that an appellable error exists.

[32] This ground asserts that the Commission erred in accepting the testimony of Mr Laverick over that of the appellant. This ground, like so many of those advanced by the appellant, amounts to nothing more than a re-argument of the matters raised below. It is a presentation of a series of pieces of the evidence with a bald argument that the appellant's evidence should have been preferred. There was evidence to support a finding of the Deputy President and no error has been demonstrated.

[33] These matters can be dealt with compendiously. Each of them relates to findings based upon the credibility of the appellant. In each case, there is evidence to support the finding that was made. Nothing has been said about these grounds other than that they are simply challenges made to findings of fact for which evidence existed and which, in the light of findings about credibility, it was reasonable to accept.

[34] This ground asserts that the Commission erred in finding that the injury arose out of reasonable management action taken in a reasonable way. It again is met by the same impenetrable barrier as the other grounds of appeal. As the Deputy President was satisfied that the appellant had not demonstrated any of the allegations of serious misconduct then the issue of reasonable management action was not raised. Section 32(1) of the Workers' Compensation and Rehabilitation Act 2003 did not need to be considered. The Deputy President held that he was satisfied that the actions of the employer in relation to remuneration and staffing were reasonable in the circumstances and this was supported by evidence. Again, the appellant has failed to do more than simply reargue the case which was run below.

[35] The provision of the Workers' Compensation and Rehabilitation Act 2003 which was relevant at the time of the hearing was s 558 which provided that the costs of the hearing are in the appeal body's discretion. The Commission had a discretion to exercise and it was exercised in the ordinary way, that is, costs followed the event. The appellant misunderstood the extent of the discretion available in the Commission.

[36] The appellant has failed to demonstrate error. The appeal is dismissed.

[1] Davidson v Blackwood [2014] ICQ 8; Carlton v Blackwood (2017) 264 IR 414; [2017] ICQ 1.

[2] (2016) 255 IR 268; [2016] ICQ 7.

[3] Now s 451 of the Industrial Relations Act 2016.

[4] (1991) 24 NSWLR 407.

[5] [2007] QCA 136; [2008] 1 Qd R 39.

[6] [2013] EWCA Civ 587.

[7] [2019] NSWCA 95.

[8] [2017] QIRC 101 at [22].

[9] [1938] HCA 34; (1938) 60 CLR 336.