Parker v The President of the Industrial Court of Queensland & Anor [2010] HCATrans 53 (12 March 2010)

Last Updated: 16 March 2010

[2010] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B24 of 2009

B e t w e e n -

RACHEL NICOLE PARKER

Applicant

and

THE PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND

First Respondent

Q-COMP

Second Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 MARCH 2010, AT 1.52 PM

Copyright in the High Court of Australia

MR S.J. KEIM, SC: May it please the Court, I appear for the applicant with my learned friend, MR G.J. REBETZKE. (instructed by Roberts & Kane)

MR G.P. LONG, SC: May it please the Court, I appear for the second respondent with my learned friend, MR S.A. McLEOD. (instructed by Q-Comp)

MR KEIM: The first respondent, which is the President of the Industrial Court, has filed a notice submitting to the Court’s - - -

CRENNAN J: Yes, thank you, Mr Keim. I think an extension of time is needed, is it not, in respect of the time limits for filing the special leave application?

MR KEIM: There is. What happened with regard to that is that the order at the first instance level of the Supreme Court had not been taken out and it was because that had not been taken out that the application was not able to be filed within the due date, and we ask for that extension of time.

CRENNAN J: We have seen the affidavit material in support of the application for an extension of time. Are there any objections in relation to that?

MR LONG: No, your Honour.

CRENNAN J: Very well, the extension is granted.

MR KEIM: Thank you, your Honour. Your Honour, this application raises what we say is the important question of the correct construction of section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003. That section uses the language of workers compensation entitlement but uses the language in the context of precluding the right to workers compensation for certain injuries which otherwise qualify but which are of a psychological nature. The question therefore is, how in those circumstances should the phrase “arising out of, or in the course of reasonable management action taken reasonably” be construed? The application also raises the difficult to discern – using the language from Craig – point at which an error in construing substantive legislation crosses the line into jurisdictional error. Section 561 of the Act bestows jurisdiction to conduct the appeal:

by way of rehearing on the evidence and proceedings before the magistrate –

on the Industrial Court. The Supreme Court of Queensland, both at first instance and in the appeal division, took the view that the construction of section 32(5) fell clearly within the jurisdiction of the Industrial Court to go wrong, if I can use that traditional phrase. The Court of Appeal indicated that the area of jurisdiction to go wrong was virtually unlimited in these circumstances. We say that such an approach represents a misunderstanding of this Court’s decision in Craig and it also flies in the face of the more recent guidance provided by the Court’s decision in Kirk which was handed down after the decision of the Court of Appeal.

KIEFEL J: Accepting, Mr Keim, at least from my point of view, accepting that it is sometimes difficult to identify what is said to be the jurisdictional error, it is not entirely clear to me from your written submissions what you say the error is? You say, as I understand it, that there is a constructive failure to exercise jurisdiction, but you do not really say in what regard, if that is what you would rely upon as the jurisdictional error. It is just not entirely clear to me. Perhaps if you could encapsulate it?

MR KEIM: Yes, your Honour. What we say is that the court failed to conduct a genuine view of the Industrial Magistrates Court’s decision because of the errors in construction.

KIEFEL J: But what are the errors in construction?

MR KEIM: The errors relate to the error of construing “in the course of” and the Industrial Court said with regard to that, we say somewhat strangely, that it would not imply a temporal requirement into the phrase “in the course of”. We say with regard to that, how could there not be a temporal – if not a temporal element, what does “in the course of” raise? We say that because of that error, without realising that it in fact needed to be a temporal connection between the exercise of management action – in fact, the Industrial Court said with regard to that, one of the reasons for not concluding that there was a temporal connection was that in his, the President’s, opinion, aggravation of a psychiatric condition of this kind was likely to occur during rumination outside work hours, but because of that, what his Honour the President failed to do was to properly review not a finding of fact, but rather the categorisation of fact which the industrial magistrate said, management action, which was in fact a series of discrete interactions either with this applicant or with the person who was the bully engaged in the retribution – the industrial magistrate said, each of those must be melded together into a 51-day continuity, and we say - - -

CRENNAN J: That is what you are really complaining about, I think, is it not? That on one view, the first respondent took the view that Mr Burgess’ bullying connected the psychiatric condition with the employment for the purposes of section 32(1) and (2) and then seemed to move to the position that it was not open to claim that that bullying broke the chain of causation between the management action and the psychiatric condition for the purposes of subsection (5). Is that what you are complaining about, in terms of you referring to having a complaint about the temporal aspects of the construction?

MR KEIM: It is confused in the way in which it is dealt with in the Industrial Court’s judgment, but we have to address both phrases “in the course of” and “arising out of”. In terms of “in the course of” we say the way in which the industrial magistrate dealt with the matter, which was not properly reviewed by the Industrial Court, involved both a misunderstanding of “in the course of”, which obviously requires a temporal connection of significance, not just an accidental temporal connection, and also involved a wrong construction or application of the phrase “reasonable management action reasonably taken” because it construed management action in circumstances like this as being capable of being a continuity. We say that to construe “management action” correctly, one must understand that it is something separate from the employment relationship and that it is exercised in small components. So we say in terms of the phrase “in the course of”, his Honour got that wrong right at the beginning and therefore did not properly review the categorisation finding with regard to the continuity, and then we say also, your Honour, with regard - - -

KIEFEL J: Can I just ask you, in relation to the “management action” question, his Honour Justice Keane, at paragraphs [46] and following in the reasons of the Court of Appeal, identifies an issue which appears to have been taken, I think, for the first time before the Court of Appeal because – I will wait until you find it perhaps, Mr Keim.

MR KEIM: Thank you, your Honour. Yes, your Honour.

KIEFEL J: In the middle of paragraph [46] his Honour suggests that there was an argument which was raised in that court:

On the other hand, so the argument for Ms Parker would now have it, the aggravation of her illness did not arise out of management action taken by the employer in connection with Ms Parker’s employment because it arose out of or in the course of management action taken by the employer in respect of [the harasser’s] employment.

His Honour goes on to deal with that in the following paragraphs. I did not understand from the notice of appeal or your application for special leave and argument upon it that you were relying in any way upon an argument to that effect for the grant of special leave. Am I right in that?

MR KEIM: You are right, your Honour. We did not in fact rely upon it before the Court of Appeal. We would say that that was a misunderstanding on his Honour Justice Keane’s part of exactly the argument that we raised. I think I dealt with your question with regard to the temporal connection and where the error arose and gives rise to jurisdictional failure on the part of the Industrial Court.

CRENNAN J: I was trying to elicit whether you were raising the very argument that Justice Kiefel has put to you because paragraph [46] of Justice Keane’s judgment deals with this issue about relying on the management action for the purposes of section 32(1), and subsection (2) as well, about wanting to disavow it in the context of subsection (5) but it seems that is really not part of your application for special leave.

MR KEIM: What we say, your Honour, is – and I will try to be clear – that in terms of the investigation and the exercise of the reprimand on the leading hand who was the bullier, we do not say - - -

CRENNAN J: So the investigation and the intervention?

MR KEIM: The intervention by management. We do not say that that did not amount to management action with regard to the applicant. We say that it was both with regard to the bullier and with regard to the applicant, and we say it was obviously part of the employment.

KIEFEL J: You concede the connection to the management action taken with respect to the bullier, do you, to her employment?

MR KEIM: Yes. We say it relates to her employment but then we say – and we say this is where the Industrial Court went wrong on the causation aspect of it, this is “arising out of” – we say that the retribution act was a novus actus that on any common sense consideration of causation broke the chain between the investigation and reprimand and aggravation of the psychiatric condition. So we say the psychiatric condition was not caused by the investigation or reprimand and we say it did not arise out of the investigation or reprimand not because that was not management action with regard to our employment, but because the causal action on any common sense view was broken by the retribution.

We say that if one looks, for example, at the examples given with regard to section 32(5), the sorts of examples relate to – if, for example, somebody does a performance review and as a result of the stress associated with that performance review somebody then has a neurotic breakdown, that is the psychiatric condition arising out of the management action. Where here the management action was taken, the reprimand was given, it came to an end and then the novus actus occurred and then it was that novus actus which led to the degeneration of the psychiatric condition.

KIEFEL J: What that really suggests though, Mr Keim, is that you are taking issue with the findings of fact of the industrial magistrate.

MR KEIM: We say that his Honour did not exercise his jurisdiction with regard to that because of what he said with regard to the novus actus. He said some issues that in terms of their legal application are trite, but he then went on to say that it was impossible to actually rely on the bullying as giving rise to the psychiatric condition in the first instance being part of the employment and to then rely upon it as a novus actus as far as the management was concerned. It was that lack of understanding on his part because to say that, clearly misunderstood that there was a clear distinction between employment on the one hand and management action on the other and because he had that misunderstanding, he did not go on to examine the question whether in fact this was a novus actus. It was that failure to examine that question on a proper basis that led to the second failure to exercise a jurisdiction to review the findings of the magistrate.

We say that both on the temporal issue where he failed to review the continuity of management action, which we say was clearly a wrong categorisation, once you understand what management action is, he failed to exercise his jurisdiction and we say on the causal issue “arising out of”, he failed to consider the question of a novus actus interveniens occurring because he failed to construe the legislation properly in order to understand there is in fact a difference between employment on the one hand, which is dealt with in 32(1), and reasonable management action reasonably taken, which is the concept that is important for the purpose of 32(5). So on both of those aspects the Industrial Court failed to exercise its jurisdiction.

Then if we look at what the Supreme Court did at first instance, Justice Lyons said he may well be wrong in his construction points but it is not possible that error can amount to jurisdictional error. Then if we go to what the Court of Appeal said in that regard, they took a much stronger line, and if I can take your Honours to what Justice Keane said at paragraph [38], which is set out at page 65, which is just a page or two prior to where your Honour Justice Kiefel took me. Justice Keane says there at about line 15 on the page:

A misinterpretation of s 32(1) or s 32(5) of the WCR Act cannot be regarded as an error apt to deprive the President of the Industrial Court of the authority to determine the appeal which came before his Honour.

So the Supreme Court, we say, at both levels just completely failed in that regard to consider the concept of jurisdictional error because it took a wrong view of that difficult to discern area where jurisdictional error can occur. Can we just take your Honours back to the issue of the construction of “arising out of”. We have raised the issue with regard to novus actus. The other point at which we say there was an incorrect construction – this can be seen in the application book at page 30 at about line 20. Do your Honours have that?

CRENNAN J: Yes, we have that.

MR KEIM: His Honour is actually discussing “in the course of” here, but it does indicate his approach to causation generally and he says in the new paragraph just below line 20 there:

It is neither necessary nor desirable to enter upon an exhaustive analysis of the connection with “reasonable management action reasonably taken” that “in the course of” requires. It is sufficient to acknowledge that a psychiatric or psychological disorder which is causally traceable to the “reasonable management action reasonably taken” is excluded by s 32(5).

What we say with regard to that, your Honours, is that his Honour has accepted a very remote and indirect element of causation to be sufficient, and we say that that is also a wrong construction of “arising out of” as it is expressed in 32(5) where, in fact, the section is acting as a basis to exclude what otherwise is compensable injury from compensation. Your Honours, we wanted to say just two things. We wanted to say that the analogy with the reasoning in Kirk is clear because again in Kirk it was the inappropriate construction of sections 15 and 16 that led to the excess of jurisdiction, namely, convicting where there was no power to. Just as that occurred in Kirk - - -

KIEFEL J: No, in Kirk the prosecutor had not complied with the requirements of the Act properly construed. It completely misunderstood the function of the charges. That was the initial mistake and it clearly fell within jurisdiction error.

MR KEIM: What we say the analogy is here is that the Industrial Court had no power to confirm the decision, which is the phraseology used in section 562 of the Act, where that confirmation was unsupported and not permitted by the proper construction of 32(5). So we say the analogy is clear. Another thing that we wanted to say before our time runs out is that Kirk does not avoid the necessity to review the approach of the Court of Appeal in this case because Kirk did not seek, as it were, to completely restate the decision in Craig. It simply gave some guidance and made some

comments with regard to it, but it really left it to a case by case determination as to where that difficult to discern line occurs.

We say that if leave is not granted here, it means that the decision that a misconstruction of legislation by the Industrial Court cannot give rise to jurisdictional error will remain the law in Queensland as far as the operations of the Industrial Court is concerned and that unsupervised areas of law that is referred to in Kirk will apply in the Industrial Court sphere and anybody who wishes to challenge that will face at least two levels of litigation in order to be able to litigate that. So the last point really is that although Kirk indicates quite strongly that the Court of Appeal was wrong, it does not attempt to redefine the law in that area to make it unnecessary for the High Court to consider the issues with regard to jurisdictional error that arise from the Court of Appeal’s decision. Thank you.

CRENNAN J: Yes, Mr Long.

MR LONG: Your Honours, in the first instance our submission is that the decision of the Court of Appeal here is not attended by any or any sufficient error to warrant the grant of special leave. It is our submission that the situation, as decided by the Court of Appeal, in relation to the requirements for jurisdictional error have not been altered by the High Court’s decision in the Kirk Case in the sense that there remains a need to identify jurisdictional error, which must be something that affects jurisdiction in the sense that the Industrial Court here has made an order that was beyond the limits of its powers or that there has been a purported but not proper exercise of jurisdiction.

In our submission, if one goes to the record at application book at 63, paragraph [35] of the judgment of the Court of Appeal, the court correctly recognised that the applicant’s arguments were as to error in the construction of a statutory provision that not only did not go directly to the jurisdiction that the Industrial Court was exercising, but was a question that was specifically left to the exclusive jurisdiction of that court, a court established as a superior court of record here in Queensland and for that court to decide.

Now, that flows from some additional statutory provisions that are not directly referred to in that paragraph, and if I can take you to the applicant’s bundle at page 1, first of all, section 242 of the Industrial Relations Act 1999 confirms the continuation of the Industrial Court “as a superior court of record in Queensland”, and the provision that provides for the privative clauses is at page 9 in the bundle, section 349 of the same Act, in particular subsections (2) and (3). We particularly emphasise the provisions in subsection (3) in terms of the submission that we have just made as to the provision of exclusive jurisdiction to the Industrial Court to decide those questions of construction that come before it in appeals that are brought to it, for instance, an appeal brought under section 561 of the Workers’ Compensation and Rehabilitation Act.

The construction of section 32 of that Act is just one of many legal issues that might arise on such an appeal brought under that Act to the Industrial Court and is an issue that is to be decided within the jurisdiction of the court. The analogy that our learned friends seek to draw with the result in the Kirk Case is inappropriate for this reason, in our submission, that it would mean that any error of law that was made by the Industrial Court in relation to a matter that was properly before it would amount to jurisdictional. In other words, what they contend for, as we understand the argument, is that an error of construction in relation to section 32 itself is enough to ground jurisdictional error, and we contend that that is not the correct result.

In addition, we contend that the appeal here was decided by the Industrial Court by reference to factual considerations. The applicant’s arguments have never challenged or doubted the necessity for there to be some connection in the nature of a causative link between reasonable management action and the claimed injury in terms of the application in section 32(5). The first respondent determined that matter at a factual level upon findings that the management action was inextricably linked to the events which led to the injury and therefore that the aggravation of the psychiatric disorder was causally traceable to that reasonable management action reasonably taken.

KIEFEL J: What impact does that have, Mr Long, on the alleged error in relation to the understanding of what “in the course of” means? Does that mean that the error has no practical effect? Is it overcome by the finding?

MR LONG: That is the effect of our submission, yes, and that can be seen – if I take you to the application book at page 30. You were taken to this page earlier. This is the decision in the Industrial Court of the first respondent and it is really a matter of working through the paragraphs that start at about line 10. You were taken to the next paragraph beginning at line 20. You will see that in the next paragraph his Honour deals with the argument that was raised about breaking the chain of causation in the context of the findings that he is dealing with and then, importantly, in the last paragraph before he makes the observation that he is dismissing the appeal, he comes back to the lack of necessity to deal with the alternative argument, that even if it was not an aggravation occurring in the course of employment, there was much to be said for the contention that it arose out of the employment.

That can be read in conjunction with the paragraph at page 20, where he said, “It is neither necessary nor desirable to enter upon an exhaustive analysis of” of the concept of “in the course of” requires in subsection (5). That can also be read in the context of his Honour’s earlier recitation of the inextricable linking of the facts, which is at pages 28 and 29 of the record, starting at about line 5 on page 28. You will see how his Honour was concerned to review the findings made below in terms of the necessary linkages which flowed through the original complaint being made to management, the remonstration with the lawyer and then, importantly, the continuing involvement of management in overseeing what was happening in the workplace but being restrained in relation to the action that could be taken because of the express wishes of the applicant.

Further, we contend that this case is, in any event, not an appropriate case for a grant of special leave and not just simply because of this, but including that, as the Court of Appeal noted, the construction of section 32 in the Industrial Court was a construction of some longstanding and had not been the subject of legislative overreaction and, as the Court of Appeal identified at application book 65 through 67, paragraphs [39] and following under the heading of “Error?” that the arguments did not appear to raise any clear error on the part of the first respondent in relation to a construction error. In essence, those are our submissions, unless there is something else that we can assist the Court with.

CRENNAN J: Thank you, Mr Long. Anything in reply, Mr Keim?

MR KEIM: Yes please, your Honour. Just with regard to our learned friend’s characterisation of our argument as saying that any error of construction must be jurisdictional error. What we say in that regard of course is that an error of construction may lead to jurisdictional error. That is the fact that really the Court of Appeal did not wrestle with and we already identified three aspects of that; the failure to properly review the characterisation of the magistrate’s characterisation of the 51 days of unbroken management, the failure to give any real consideration to the issue as to whether there was a novus actus and the application of only the most remote and indirect, as opposed to common sense, issues of causation.

What we would say in that regard is whereas Kirk characterised the jurisdictional error there as an excess of jurisdiction, perhaps here it is a failure to exercise the jurisdiction to rehear the matter on the evidence and proceedings before the industrial magistrate. That is all we had in reply, thank you.

CRENNAN J: Thank you, Mr Keim.

The application does not give rise to a question of law suitable for a grant of special leave and the interests of justice do not require such a grant. Special leave to appeal is refused with costs.

MR KEIM: Your Honour, could I just be heard briefly on the question of costs?

CRENNAN J: Costs were not ordered in the Court of Appeal. That was pursuant specifically to a provision in section 49 of the Judicial Review Act which allows for a departure from the normal jurisdiction with regard to costs. That only refers to the decision at first instance in a judicial review application and in the judgment Court of Appeal there is no specific reference to an application in the Court of Appeal.

KIEFEL J: Is there any specific provision in the industrial legislation in relation to costs?

MR KEIM: Costs generally in the industrial legislation are not ordered unless there is a special reason. Unreasonableness and vexatiousness I think are the two phrases used. We say because of the legislative policy indicated in both of those, although they do not refer specifically to this Court, it would be appropriate in the circumstances to exercise a jurisdiction to make an order as to costs.

CRENNAN J: Thank you. What do you say, Mr Long?

MR LONG: Your Honour, we have set this out at page 95 in paragraph 28 of our written submissions and there is really little more to be said than what we say there.

CRENNAN J: Yes, thank you.

Special leave is refused with costs.

AT 2.25 PM THE MATTER WAS CONCLUDED