Peck v Workers' Compensation Regulator [2022] QIRC 189

Workers' Compensation and Rehabilitation Act 2003, s 552A and s 552B

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461

Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

NSW Commissioner of Police v Cottle [2022] HCA 7; (2022) 399 ALR 449

Sean Investments Pty Ltd v MacKeller [1981] FCA 174; (1981) 38 ALR 363

State of Queensland (Queensland Health) v Q‑Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

• [1] Mr Ricky Peck was employed as an accountant. On 11 March 2021, Mr Peck made an application for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 ('the Act') to WorkCover Queensland. The injury for which Mr Peck made his application for compensation was a psychiatric/psychological injury. WorkCover subsequently made a decision to reject Mr Peck's application. As was his right, Mr Peck sought a review of that decision with the Workers' Compensation Regulator. The Regulator confirmed the WorkCover decision ('the review decision').

• [2] By notice of appeal filed on 15 February 2022, Mr Peck, pursuant to ch 13, pt 3, div 1 of the Act, appealed to this Commission against the review decision.

• [3] By email sent to the Registrar on 15 February 2022, the Regulator sought leave, pursuant to s 552B of the Act, to be represented by a lawyer at a conference called under s 552A of the Act or at the hearing of Mr Peck's appeal. In reality, by that email, the Regulator seeks leave to instruct private counsel to represent it at such a conference or in the hearing. Such a contention is not disputed by Mr Peck in his submissions.

• [4] Mr Peck opposes the Regulator being given leave to be represented by private counsel.

• [5] Given Mr Peck's opposition, I directed that the parties file submissions about whether or not I should exercise my discretion to give leave for the Regulator to be represented by a lawyer.

• [7] For the reasons that follow, pursuant to s 552B(b) of the Act, I give leave to the Regulator to be represented by a lawyer at a conference called under s 552A of the Act in respect of Mr Peck's appeal or at the hearing of Mr Peck's appeal.

The Act

• [8] Section s 552B of the Act provides:

552B Legal representation at appeal or conference

A party may be represented by a lawyer at a conference called under section 552A or at the hearing of an appeal, but only with-

(a) the agreement of the parties; or

(b) the appeal body's leave.

• [9] The Regulator, in its submissions, referred to s 530 of the Industrial Relations Act 2016 ('the IR Act'). Sections 530(1)(b), (c) and (d) of the IR Act confer discretion on the Commission to give leave for a party, or a person ordered or permitted to appear or to be represented in certain proceedings, to be represented by a lawyer. Section 530(4) of the IR Act provides that the Commission may give such leave only if certain circumstances are made out. The Regulator submitted that s 530 of the IR Act 'arguably' had no effect given the express provision in the Act, namely s 552B, that dealt with legal representation. Mr Peck in his submissions did not deal with this discrete issue. In the absence of full argument and having regard to all the issues raised by the Regulator and Mr Peck in their submissions, which I refer to below, that is not a matter that I need to finally determine.

• [10] However, my preliminary view is that s 530 of the IR Act does not apply to appeals to the Commission made pursuant to ch 3, pt 3, div 1 of the Act.

• [11] Generally speaking, in respect of the construction of overlapping statutes, the operation of the statutes remains a matter to be gleaned by reference to the legislative intention which is to be extracted from all available indications.[1]

• [12] The noun 'proceedings' is relevantly defined in s 530(7)(a) of the IR Act to mean '... proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar'. However, when regard is had to ss 530(1)(c) and (d) of the IR Act and the definition of 'relevant provision' in s 530(7) of the IR Act, the only proceedings before a single member of the Commission, in respect of which leave for a party or person to be represented by a lawyer may be given under s 530(1) of the IR Act, concern proceedings under either the Anti‑Discrimination Act 1991 or under certain specific provisions in the IR Act.

• [13] The Commission, in respect of Mr Peck's appeal, meets the description of 'appeal body' referred to in s 552B(b) of the Act. There are no circumstances prescribed in s 552B of the Act which must exist in order for the Commission to exercise discretion to grant leave for a party to an appeal under ch 13, pt 3, div 1 of the Act to be represented by a lawyer. While the discretion is unconfined, clearly, it must be exercised judicially, that is to say, not arbitrarily or capriciously.

• [14] Because the discretion is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute, some implied limitation on the factors to which the Commission may legitimately have regard.[2] If there is nothing in the subject matter, scope and purpose of the statute that suggests some implied limitation on the matters to which the decision maker may legitimately have regard, it is largely for the decision maker, in light of the matters placed before it by the parties, to determine which matters are relevant and the comparative importance to be afforded to those matters.[3]

• [15] My preliminary view is that there is nothing in the subject matter, scope and purpose of the Act that immediately suggests some implied limitation on the matters to which I may legitimately have regard in determining whether or not to grant leave to a party to be represented by a lawyer.

• [16] Thus, it is for me, in light of the matters referred to in the parties' submissions, to determine which matters are relevant and the comparative importance to be afforded to those matters as to whether or not I exercise my discretion to give leave to the Regulator to be represented by a lawyer.

• [17] By way of summary, the Regulator relevantly submits that:

• Mr Peck's appeal is likely to involve complex questions of fact and law, namely:

• - whether Mr Peck suffered a personal injury, and if so, whether it was an aggravation of a pre-existing condition;

• - whether any such personal injury arose out of, or in the course of, Mr Peck's employment and whether Mr Peck's employment was a significant contributing factor to such a personal injury; and

• - whether any such personal injury sustained by Mr Peck arose out of reasonable management action taken in a reasonable way by his employer in connection with his employment;

• in order to appropriately respond to Mr Peck's appeal, it will be required to investigate and assess complex factual and medical evidence in relation to no less than 10 alleged errors in the review decision identified by Mr Peck in his grounds of appeal involving, amongst other matters, alleged breaches of the Fair Work Act 2009;

• Mr Peck's appeal involves complex questions related to the involvement of another rejected claim for workers' compensation made by Mr Peck for a psychiatric injury apparently arising from stresses which occurred proximate to the events that allegedly gave rise to the injury the subject of Mr Peck's present appeal;

• the resolution of Mr Peck's appeal will require the application and assessment of questions of both fact and law and the Commission and Mr Peck will be sufficiently aided by the provision of structured submissions from a lawyer specifically addressing the relevant legislation and case law;

• a lawyer can assist in Mr Peck's appeal through:

• - their independence, forensic legal skills and their overriding obligations to the Commission; and

• - their ability to ensure the proceedings remain focused on the real issues of fact and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced and submissions are confined to the matters which the Commission must decide; and

• the assistance provided by a lawyer may also shorten the length of any hearing of the appeal and consequently reduce the potential costs to both parties.

• [18] By way of summary, Mr Peck relevantly submits that:

• the likelihood of success in a case is affected by the strength of a party's counsel in relation to opposing counsel;

• the Regulator's representative is a qualified lawyer with significant experience and the Regulator's application to be represented by a lawyer permits a further legal advantage over him which makes a mockery of the requirement of the Commission to facilitate '... fair, balanced and productive industrial relations';

• the matters the subject of his appeal are not complex in that the Regulator has already resolved many key legal aspects of the appeal in his favour and the dispute is '... around basic interpretation of data such as dates, and an interpretation whether certain actions are reasonable'; and

• how he sustained his personal injury (being the matter relevant to the other application for compensation referred to by the Regulator in its submissions) is largely irrelevant in respect of his present appeal which is a claim for aggravation and which involves different stressors.

Leave will be given to the Regulator to be represented by a lawyer

• [19] As Mr Peck correctly identifies in his submissions, an appeal of this type is a hearing de novo[4] of the issue determined by the review decision.[5] The issue determined by the review decision was that Mr Peck did not suffer an injury within the meaning of the Act. That is the issue the Commission must determine in Mr Peck's appeal. In this regard, the Commission begins afresh and exercises for itself the power of the Regulator in reviewing the decision of WorkCover, namely, whether or not Mr Peck suffered an injury within the meaning of the Act.[6] The onus is on Mr Peck to prove, on the balance of probabilities, that he has suffered an injury within the meaning of the Act.[7]

• [20] It is not right, as Mr Peck submits, that the Regulator has already resolved key legal aspects of his appeal in his favour. Given the nature of the hearing, it may be that the Regulator does concede certain matters. However, it may not.

• [21] Assuming, as suggested by Mr Peck in his submissions, that the only triable issue in his appeal is whether or not an aggravation of his personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with his employment, my opinion is that if the Regulator was represented by private counsel, such representation would enable Mr Peck's appeal to be dealt with more efficiently having regard to the complexity of that question.

• [22] In making my determination, I have had regard to Mr Peck's notice of appeal filed on 15 February 2022. Attached to his notice of appeal is the review decision. It is difficult, having regard to both documents, to clearly identify the management action Mr Peck says was unreasonable and that he claims had a causal connection with an aggravation of any existing psychiatric injury he had sustained. As best as I can make out, the unreasonable management action alleged to have a causal connection with the aggravation of his pre‑existing personal injury of a psychiatric nature, consisted of:

• the initial refusal by his employer to give him two weeks leave so as to improve his mental health, which was later acceded to by his employer;

• the issuing to him by his employer of what he described as a 'sham show cause notice' which required him to respond while he was on medical leave; and

• the time and processes afforded to Mr Peck to respond to the show cause notice.

• [23] In the review decision, the Regulator found the actions of Mr Peck's employer amounted to reasonable management action taken in a reasonable way.

• [24] In my opinion, the efficient resolution of these questions of fact would be aided by the Regulator being represented by private counsel. The forensic skills of private counsel include concisely identifying the relevant issues for the determination of disputed matters in a proceeding, to lead only relevant evidence about such matters and to cross‑examine witnesses only on relevant matters so as to permit the Commission to efficiently determine the ultimate question that needs to be determined. In addition, counsel can significantly reduce the time for the hearing of an appeal by addressing their client's submissions only to relevant matters, by concisely summarising the evidence and the law and by efficiently assisting the Commission to determine the issue in contention.

• [25] Indeed, counsel have an overriding duty to the Commission to act with independence in the interests of the administration of justice.

• [26] In the present case, assuming Mr Peck is correct about the disputed issues in his appeal, the ultimate question is whether or not any work-related aggravation of a personal injury he has sustained is withdrawn from being a compensable injury because it arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with his employment.

• [27] Whilst Mr Peck may describe the issues regarding whether or not he was the subject of unreasonable management action as not being complex, from my experience, there will inevitably be disputes about the relevance of evidence and disputes about whether any relevant management action may properly be described as reasonable or taken in a reasonable way. There may also be questions about whether any unreasonable management action had a causal connection with any aggravation of a pre‑existing psychiatric injury sustained by Mr Peck. Again, from my experience, matters such as these will be more efficiently addressed by the Regulator being represented by private counsel. That, in turn, will allow the matters in dispute in Mr Peck's appeal to be more efficiently determined.

• [28] The present matter I had to determine is whether or not, pursuant to s 552B of the Act, I should exercise discretion to give leave to the Regulator to be represented by a lawyer in respect of any conference or hearing concerning Mr Peck's appeal.

• [29] For the reasons I have given, I give the Regulator such leave.

Pursuant to s 552B(b) of the Workers' Compensation and Rehabilitation Act 2003, the Respondent is given leave to be represented by a lawyer at a conference called under s 552A of the Workers' Compensation and Rehabilitation Act 2003 or at the hearing of the Appellant's appeal.

[1] NSW Commissioner of Police v Cottle [2022] HCA 7; (2022) 399 ALR 449, [23] (Kiefel CJ, Keane, Gordon and Steward JJ).

[2] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J).

[3] Sean Investments Pty Ltd v MacKeller [1981] FCA 174; (1981) 38 ALR 363, 375 (Deane J) and Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499, [56]-[57] (Hely J).

[4] Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461, [24]-[27] (Martin J, President).

[7] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).