Industrial Court of Queensland s6

[Extract from Queensland Government Industrial Gazette, dated 16 March, 2007, Vol. 184, No. 11, pages 151-153]

INDUSTRIAL COURT OF QUEENSLAND

Workers' Compensation and Rehabilitation Act 2003 - s. 561 - appeal against decision of industrial magistrate

Uwe Arthur Willi Hetmanska AND Q-COMP (C/2006/68)

PRESIDENT HALL 2 March 2007

DECISION

The Appellant, Mr Uwe Arthur Willi Hetmanska, claimed benefits under the Workers' Compensation and Rehabilitation Act 2003, in respect of a neck condition which had become painful over a period of time when (as a worker) he had been driving a vehicle with poor suspension in rough terrain. Initially, WorkCover Queensland accepted that the neck condition was an injury for the purposes of s. 34. However, the time came when WorkCover Queensland concluded that the work-related aggravation of an existing degenerative condition had come to an end, and that any continuing pain was attributable to the natural advance of the degenerative condition. As he was entitled to do, on 15 February 2006, Mr Hetmanska sought a statutory review of WorkCover Queensland's decision. By a letter dated 9 March 2006, The Workers' Compensation Regulatory Authority (commonly referred to by its trading name, Q- COMP) confirmed the decision of WorkCover Queensland. On 7 April 2006, Mr Hetmanska filed a notice of appeal pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003, by which he invited the Queensland Industrial Relations Commission to set aside the decision of Q-COMP. Regrettably, Mr Hetmanska seems not to have appreciated that he was exiting a non-adversarial process of administrative review, and entering upon an appeal by way of trial in a court of record whose processes are based on an adversarial and litigious model.

When the matter was called in the Queensland Industrial Relations Commission on 11 July 2006 (in Rockhampton), and the presiding Commissioner indicated the process which the Commission proposed to follow, Mr Hetmanska chose to remonstrate with the Commissioner. It is apparent from the transcript that Mr Hetmanska was not at that stage willing (or perhaps able) to call medical practitioners to support his case. Although there is some suggestion that Mr Hetmanska was himself prepared to give evidence, it is not immediately apparent that he was willing to participate in cross-examination, to expose medical witnesses (if ultimately located) to cross-examination or to cross-examine any witnesses called by Q-COMP. Mr Hetmanska preferred a process under which the Commissioner would converse with Mr Hetmanska, would then converse with Q-COMP and would finally make a decision. Such a process is entirely appropriate in a non-adversarial review, but is a process which the Queensland Industrial Relations Commission, exercising jurisdiction under the Workers' Compensation and Rehabilitation Act 2003, has no authority in which to engage.

The circumstances of Mr Hetmanska's departure from the court room are described in the decision of this Court dealing with the issues about extension of time which is reported at 183 QGIG 917. In short form Mr Hetmanska walked out.

Q-COMP did not ask for the proceedings to be dismissed when Mr Hetmanska walked out. The Commissioner did nothing of his own motion to bring proceedings to an end. They were re-listed for a telephone hearing on 27 July 2006 in order that the matter might be further progressed. The transcript shows that Mr Hetmanska adhered to a position which he had taken up on 11 July 2006.

The Queensland Industrial Relations Commission is a court of record, see s. 255 of the Industrial Relations Act 1999. It has inherent jurisdiction to ensure that its processes are not abused, compare Duncan v Lowenthal [1969] VR 180 at 182 and von Risefer and Others v Permanent Trustee Co Pty Ltd and Others [2005] QCA 109 at [14] and [15] per Keane JA with whom McPherson JA agreed. That power extends to purging its lists at cases which have not been reasonably prosecuted, or are not being reasonably prosecuted; compare Duncan v Lowenthal op. cit. That was the relief which Q- COMP sought. The transcript suggests that the Commissioner was initially disposed to stay the proceeding and adjourn the matter to the Registry to a date to be fixed. The obvious difficulty with that course is that at some stage the proceedings might be revived, e.g. on the basis of evidence that Mr Hetmanska was willing and able to prosecute the Appeal in the ordinary way. Q-COMP would not be able to close its files. It is understandable that Q-COMP sought an order dismissing the Appeal. The discretion to make such an order is vested in the Queensland Industrial Relations Commission. The discretion is not vested in the Industrial Court. There is no suggestion that the Commissioner erred in law or in principle. To succeed on the Appeal to this Court it is necessary for Mr Hetmanska to satisfy the Court that the decision of the Queensland Industrial Relations Commission was so unreasonable and plainly unjust that the Court may infer that there has in some way been an undiscoverable failure to properly exercise the jurisdiction, compare House v King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ. Mr Hetmanska has failed to do that. The stance which Mr Hetmanska took up in the Commission left the Commission with little alternative but to protect Q-COMP and to protect public confidence in the Commission's processes by making an order of the type which was made. That is sufficient to dispose of the Appeal. However, in fairness to the Commissioner who dealt with the 2 matter at first instance, I should say that if this Court had been entitled to sit in the Commissioner's chair and exercise the discretion afresh the very real difficulty would have arisen that there is every reason to believe that if the Commission's order was set aside and the matter remitted for further hearing, history would repeat itself (at least on the matter of medical evidence).

I dismiss the Appeal.

Q-COMP has asked for costs. With a view to moderation of expense, I propose to take written submissions upon the matter of costs. I recommend to Q-COMP that it consider nominating a global sum in the event that costs are ordered. Taxation of costs in matters such as these can be cumbersome and expensive.

Dated 2 March 2007.

D. R. HALL, President. Appearances: Appellant in person. Released: 2 March 2007 Mr P. Rashleigh, directly instructed for the Respondent.

Government Printer, Queensland The State of Queensland 2007.