CITATION: Susan Marshall AND Q-COMP (WC/2011/386) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Transcription

1 CITATION: Susan Marshall AND Q-COMP (WC/2011/386) - Decision < QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act s procedure for appeal Susan Marshall AND Q-COMP (WC/2011/386) DEPUTY PRESIDENT BLOOMFIELD 20 June 2012 Background DECISION [1] On 6 July 2011 Ms Susan Marshall filed an Application for Workers' Compensation with WorkCover Queensland (WorkCover). The Application recorded that her injury (heart pain, stress, anxiety) occurred over a period of time commencing in January Ms Marshall stated that her injury happened as a result of teaching an over-crowded class of students, many with major behavioural problems and learning difficulties. [2] On 18 July 2011 WorkCover wrote to Ms Marshall and informed her that it had decided not to accept her Application for Workers' Compensation on the basis it was lodged outside the six month time limit at s. 131(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) and it was not satisfied she had provided a reasonable cause, as required at s. 131(5)(c), for the delay. Ms Marshall subsequently lodged an appeal with Q-COMP against WorkCover's decision. This was refused on 29 August 2011 on the basis Q-COMP was not satisfied Ms Marshall had offered a reasonable excuse for not lodging her Application within six months from the date of entitlement. Ms Marshall now appeals to the Queensland Industrial Relations Commission (the Commission) for a review of Q-COMP's decision. Relevant legislation [3] Section 141 of the Act provides: 141 Time from which compensation payable (1) The entitlement to compensation for an injury arises on the day the worker is assessed by - (a) a doctor; or (b) if the injury is a minor injury - a nurse practitioner acting in accordance with the workers' compensation certificate protocol; or (c) if the injury is an oral injury and the worker attends a dentist - the dentist. (2) However, any entitlement to weekly payment of compensation starts on - (a) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury - the day after the worker stops work because of the injury; or (b) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury - the day the doctor, nurse practitioner or dentist assesses the injury. (3) Subsections (1) and (2) are not intended to limit any availability for compensation for the day of injury provided for under part 8. (4) Subsection (2) is subject to section 131(2). [4] Section Time for applying, relevantly provides: (1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises. (2) If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer's liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.

2 2 (5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant's failure to lodge the application was due to - (a) mistake; or (b) the claimant s absence from the State; or (c) a reasonable cause. [5] On behalf of Ms Marshall it is argued that her failure to lodge her Application for Workers' Compensation within the six month time limit specified at s. 131(1) of the Act was due to mistake (s. 131(5)(a)) and/or a reasonable cause (s. 131(5)(c)). It is also argued that the Commission should, after making such finding(s), exercise its discretion to waive the statutory time limit. Evidence [6] On 24 May 2009 Ms Marshall was admitted to the emergency department of the Hervey Bay Hospital after taking an overdose of medication. On 27 May 2009 she attended on Dr Robyn McConnell, her regular GP, who diagnosed her as suffering from a major depressive disorder with anxiety and a query of adjustment disorder. Ms Marshall's symptomology included anxiety, poor coping, impaired concentration and labile mood. [7] Dr McConnell said that although Ms Marshall's condition was first formally diagnosed on 27 May 2009, Ms Marshall had presented on 15 April 2009 with a history of episodes of chest pain that always occurred at school and were usually associated with stress with the children. Because of Ms Marshall's concern about the cause of her symptoms Dr McConnell referred her for full cardiac assessment. After this assessment failed to reveal any problems with Ms Marshall's heart the possibility of an underlying condition of anxiety/depression was raised during Ms Marshall's next consultation on 27 April [8] Dr McConnell next saw Ms Marshall on 27 May 2009 (see paragraph [6] above) at which time she prepared a mental health plan for six visits to a psychologist with a view to a further six visits over a 12 month period. A K10 Depression Assessment undertaken by Ms Marshall returned a result of 27/50 which put her in the moderately severe depression range. Dr McConnell said Ms Marshall reported that the major current stressor in her life was the students she was teaching at school where her class contained six children with severe behavioural problems. This was causing her enormous stress and she also felt unsupported, isolated and increasingly despairing of a solution. [9] Dr McConnell subsequently saw Ms Marshall on 4, 16 and 26 June In the latter visit Dr McConnell's notes recorded that Ms Marshall was receiving counselling (through a psychologist funded by Q-Super) and this was helping. The notes also recorded: "Asking about WorkCover claim could try but can be very stressful process and admits she would not be able to cope with more at this time defer till more settled.". [10] Dr McConnell's notes record the following visits and comments relevant to Ms Marshall's psychiatric or pscyhological disorder: 18 August 2009: "slowly improving with counselling/lexapro and complete break from classroom stressors just starting to leave house now comfortable with Jean (second psychologist funded through a Mental Health Plan) and feels working through issues contemplating workcover still - get claim form and peruse cost discussed would be responsible for billing until and if workcover accepts the claim - will consider extension certificate till end of year to allow school to plan for class cover.". 2 November 2009: "needs review mental health plan will return needs another certificate for work - till end of May 2010 written slowly making progress.". 9 November 2009: "review GP mental health plan see file Repeat K10 36/50.".

3 3 6 April 2010: "s/b Dr Curtis Gray - psychiatrist for Q-super reocmmends (sic) referreal (sic) to psychiatrist for reocmmendations (sic) about pharmacological management increase lexapro to 20mg daily diagnoses - major depressive disorder with melancholia of moderate severity.". 9 April 2010: "review Dr Gray's report Suggestive (sic) of psychiatrist a cost problem as Q super won't subsidize and no psychiatrist that I know will bulk bill Sue not keen to go there anyway discussed increasing lexapro to 20mg - will try has switched dosing to mane which has reduced fatigue.". 6 July 2010: "completion of Q-super form - see file hasn't seen Jean (second Psychologist) for few months - other things happened but will try to get back soon continues on lexapro coping still poor low energy levels/motivation anxiety perhaps improved does not think could return to work this year the thought causes great apprehension extension total disability till end of year.". 3 December 2010: "wants another certificate for school planning to return to work has psychiatric review early January the school needs to have another teacher organised for first part of term to certificate till 20 th February 2011 not sure how she is going to manage but still planning return.". 15 March 2011: "s/b Jean Houlahan (second Psychologist) and planning graduated return to work from 26 th April - medical certificate done stating this.". 31 March 2011: "have devised return to work program 30 mins for Tuesday, Thursday for two weeks then reassess certificate written - see file.". 21 June 2011: "update medical certificate and suitable work volounteer (sic) contact plan see file Progressing very slowly doubtful if will return to class room contact.". 7 July 2011: "due to see psychiatrist again organized by Q super wants to do workcover claim now broke down at work and has come to the realization unlikely to every (sic) return to work as teacher discussed history and reviewed reports form completed.". 29 August 2011: "has seen psychiatrist for Qsuper?some thought she may have a sleep disorder no more details than this and she could not recall anything useful needs to await a copy of the report he also thinks once this problem is addressed she should be fitter to return to work says sleeps 8-9 hours/day and a few hours in the day also medical certificate for work qsuper claim concluded waiting to see if workcover will accept claim.". [11] Dr McConnell sent a Report about Ms Marshall's condition and circumstances to Q-Super on 22 July 2009 (Exhibit 6). In the course of this correspondence Dr McConnell wrote: "With regard to medical barriers preventing her from returning to work, I would attribute the classroom situation as the major trigger to the episode and unless this is resolved it is unlikely she will return to the classroom in a teaching role.

4 4 The non medical issues impacting on her ability to return to work would be the continued presence of the behaviourally challenging students in the classroom. I am unable to predict a date when she will return to work, as this will no doubt depend on the environment to which she returns, and the amount of support she is given through her work environment. I would hope that she would be able to return to fulltime role as a teacher at some future time, however I would be unable to predict a time frame at this time.". [12] By letter dated 15 August 2011, Solicitors for Ms Marshall wrote to Dr McConnell seeking information about the nature of the discussions Ms Marshall might have had with her in the period leading up to lodgement of the Workers' Compensation Application on 7 July 2011 (Exhibit 9). In the course of their letter Ms Marshall's Solicitors said: "Our client lodged a claim for workers' compensation on 7 July The legislation provides that a WorkCover claim is only valid and enforceable if it is lodged within six months after the date of injury. In this case, two years and two months passed before our client lodged her claim. WorkCover may waive the six month time period if the worker has a reasonable cause, or if there are special circumstances of a medical nature. We seek your medical opinion about our client's state of health at the time she ceased work and in the two years since. Our client feels that, subjectively, she was unable to complete the process until 7 July Would you please advise: 1. On what date did our client first consult you for assistance in relation to the stressful events in her workplace in 2009? 2. Between May 2009 and 7 July 2011, at what point in your medical opinion did our client become capable of understanding the need to lodge a WorkCover claim and capable of managing the process? Your response to the above questions will assist in determining whether WorkCover should consider our client's claim even though it is lodged out of time. WorkCover will still have to consider the merits of the claim.". [13] In her response, dated 23 August 2011 (Exhibit 7), Dr McConnell said: "On 26th June 2009 we discussed lodging a Workcover claim but at that time we also discussed how stressful this process could be and she felt that she was unable to cope with the process and elected to defer this until she was 'more settled'. She was accessing numerous support services at this time, via other avenues outside of Workcover. On 18 th August 2009 we again discussed (her) Workcover claim but she was anxious that she may accrue expenses that she may be responsible for if Workcover ultimately rejected the claim, and she again opted to consider further and deferred proceeding with lodging a claim at that time. The question of defining a time when she would have been able to manage the process of such a claim is difficult. Her coping has been very poor up to and including the present. Even though she has made some progress over time, she remains very fragile and easily destabilized with new challenges. She will probably struggle even now with the claim process.". [14] Later, on 3 January 2012, Ms Marshall's Solicitors wrote to Dr McConnell again, as follows (Exhibit 10): "Thank you for your letter of 23 August 2011 advising that in your opinion our client has not been medically fit to manage the WorkCover process before now. WorkCover accepts your evidence, but has queried an assertion made by our client that you actively discouraged her from lodging a WorkCover claim at the time it was discussed. Our client has told us that you said words to the effect 'You can lodge your WorkCover claim later', which our client understood meant there was an indefinite time line. Active discouragement such as this can be a foundation for extending the 6 month time period for lodging the WorkCover claim.

5 5 In a legal sense, it was not reasonable for our client to rely on her doctor's advice in a legal matter (and as such, she has no grounds to make any claim against you). From WorkCover's perspective, discouragement can be a 'reasonable cause' for late lodgement and would assist out client's case. 1. Would you please advise whether you have noted, or recollect, any discussion with our client discouraging her from lodging the claim or inferring there was indefinite time period to lodge a claim. Please tell us whether, prior to this matter, you were aware of the 6 month time period for lodging a WorkCover claim.". [15] In response, on 9 January 2012, Dr McConnell wrote (Exhibit 8): "With regard to Susan's decision to defer a WorkCover claim at the time of her consultation with me on 25 (sic) June 2009, which was the first occasion we discussed the possibility of lodging a WorkCover claim, I did actively discourage her from this course as I felt medically and psychologically she was unable to cope with the stressors involved in such a claim at that time. I advised her to defer lodgement of a Work Cover claim until she was more able to actively engage in the process. I was unaware that there was any time constraints involved in lodgement of a WorkCover claim and therefore I was unable to relate this fact to Susan. As far as I am aware Susan was also unaware that there was any time frame involved in lodgement of a WorkCover claim.". [16] In the course of her oral evidence Dr McConnell said she supported Ms Marshall's decision (see below) to lodge a claim for benefits through Q-Super and recalled completing some forms in relation to that application on 16 June She considered the Q-Super application to be very timely because it was "the least stressful things she could do to gain help and support" in circumstances where she (McConnell) deemed her (Marshall) to be totally disabled. "She was extremely fragile and she, at that time, for quite some time, she was very fragile and was certainly unable to cope with any investigative-type things where she'd be put under questioning or interrogation or having to justify her position, or explain in detail what was going on." (Transcript 1-9). [17] On 26 June 2009 they discussed the possibility of lodging a WorkCover claim and "she was asking whether she should invoke a WorkCover claim, and I said yes, we could try that, but we also discussed that it was a very stressful process, and this was based on my previous experience in these situations where there's a psychological injury as opposed to physical injury. The investigative process is extraordinarily stressful for someone who is already very fragile, and she felt - after we'd discussed what was involved about this process, she felt she wouldn't be able to cope, and I completely agreed with her at that time." (Transcript 1-9). [18] Dr McConnell said she came to this belief because Ms Marshall's mental status "was very fragile. She had very little resilience. She had marked anxiety, she was emotionally labile, she was socially avoidant to me, to be put in the position of explanation and justification was going to be a stress that I didn't think she'd be able to handle." (Transcript 1-9). [19] Dr McConnell also said that when people with a psychiatric condition were pulled out of their workplace and provided with some assistance there was usually a lot more progress than happened with Ms Marshall. "She just progressed, if that, extraordinarily slowly. She was very, very slow to recover. I mean I'm talking probably at least two years before she got into a fairly coping sort of state." (Transcript 1-9). Further, her K10 Assessment in November 2009 (of 36/50) "was actually worse than the first one." (Transcript 1-14). [20] Finally, in response to a question about whether there was any point in time prior to 7 July 2010 when she felt Ms Marshall would be able to make a claim to WorkCover, Dr McConnell said " that's a difficult thing to say, because it's sort of an ongoing fluxing. She may have been - until she's actually put in the position I don't think she could judge her response. I still deem she suffers from a major stress disorder with anxiety, that could be easily destabilised." (Transcript 1-18). [21] Under cross-examination Dr McConnell accepted that Ms Marshall raised the possibility of lodging a WorkCover claim during their discussion on 26 June 2009 but cautioned that although Ms Marshall was aware of it as an option "(s)he was not capable of doing it - the process. She was capable of raising the question." (Transcript 1-23). [22] Later (Transcript 1-29 to 30), Dr McConnell was challenged about her correspondence to Ms Marshall's Solicitors on 9 January 2012 in which she asserted she did actively discourage Ms Marshall from lodging a WorkCover claim earlier than she did and whether her comment to that effect was prompted by the Solicitor's correspondence of 3 January In response, Dr McConnell first said she had discouraged Ms Marshall from lodging her claim before (immediately) correcting herself and saying "(w)ell, I hadn't - I had encouraged her not to do it at that time and to defer." (Transcript 1-29).

6 6 [23] Ms Marshall said that in the period after she saw Dr McConnell on 29 May 2009 she "couldn't think, couldn't concentrate, couldn't cope, couldn't read a book - or couldn't read a page of a book and understand what I'd read I just slept all the time I was okay in the confines of my house. I just stayed there I hardly ever went out but when I did I had someone with me " (Transcript 1-36). She also said that she could not work and after accessing two days sick leave she had she had no income. As a result, she asked a friend to help her get some money through Q-Super. Ms Marshall said that although the handwriting on applications for benefits directed to Q-Super dated 30 May and 16 June 2009, respectively, was hers, her friend helped her put them together. That person and another teacher friend from school also helped her complete other forms which they took in to the school because she could not walk into the school without suffering a panic attack. [24] Ms Marshall recollected some discussions with Dr McConnell about the process of lodging a Workers' Compensation Application. She recalled Dr McConnell saying she would have to pay for everything and organise things herself but she "couldn't afford anything and I certainly couldn't do anything for myself mentally. I was just not capable." (Transcript 1-39). She also recalled Dr McConnell suggesting to her that they wait until she got better and then they would fill the forms in " and I thought, okay, that's - that's the way. My only concern was getting - trying to get better." (Transcript 1-39). [25] Ms Marshall also said that she needed assistance to go to the shops and it was probably 12 months or so before she was able to go out and do shopping on her own. Her psychologist was also trying to desensitise her to the school, because she had trouble even walking into the school and would panic. It was not until the early part of 2011 that she could actually bring herself to go into the school. Her "return to work" program, which Dr McConnell signed off on, simply had her visiting the school to sit and watch in a classroom for a half an hour two days each week. Even then she was escorted to and from the classroom by the Rehabilitation Coordinator. [26] After going through this routine for several months (Ms Marshall had great difficulty recalling times and dates) she deviated from the normal route she took to and from the classroom and broke down because, she believed, she was out of her comfort zone. It was at about this point she " realised that I might not - my whole aim was to get back to teaching and then I realised that I wasn't going to make it." (Transcript 1-41). Upon coming to this realisation she decided to lodge her Application for Workers' Compensation. [27] Under cross-examination Ms Marshall was questioned about several applications for benefits lodged with Q-Super in June Although accepting that most of the handwriting on the documents was hers, Ms Marshall said that they had been filled out with the assistance of the two friends mentioned above (see paragraph [23]). [28] Further, Ms Marshall said that whilst she did not particularly recall it, she nonetheless accepted she had received correspondence from Q-Super dated 9 March and 2 June 2011, respectively, to the effect that her income protection benefit would cease on 29 August However, Ms Marshall did not accept that the impending cessation of her Q-Super payments was the motivating factor for lodging her Workers' Compensation Application. Instead, she insisted that it had always been her intention to get back to work but it was the realisation that her career was over which prompted her to lodge the Application (Transcript 1-41 and 48). Indeed, Ms Marshall completely broke down after making this statement during her examination-in-chief (see Transcript 1-41). Mistake and/or reasonable cause Mistake [29] Although each of Ms Marshall and Dr McConnell said they were unaware of any time limit within which to lodge an Application for Workers' Compensation I do not regard such lack of knowledge as constituting a "mistake" within the meaning of s. 131(5)(a) of the Act. Something more than mere lack of knowledge of the time period is required. [30] Further, Ms Marshall was clearly aware, as was Dr McConnell, that she had the ability to lodge a Workers' Compensation Application as a result of her condition and absence from work. The reason for the delay was not because of any mistake, it was because of Ms Marshall's state of health at the time. Reasonable cause [31] After carefully considering the evidence and the submissions of Ms Hartigan, who appeared for Ms Marshall, and Mr Clutterbuck, who appeared for Q-COMP, I have come to the conclusion that Ms Marshall has provided a reasonable cause to explain her (significant) delay in lodging a Workers' Compensation Application. [32] In arriving at this decision I have not accepted Mr Clutterbuck's submissions to the effect that because Ms Marshall was capable of completing an Income protection benefit claim form for Q-Super on or around 16 June 2009 she was also capable of completing a Workers' Compensation Application. Ms Marshall's evidence, which

7 7 I accept, is that the form for Q-Super was filled in with the assistance of a close friend in circumstances where she was desperate to access money to live in circumstances where she had utilised all of her sick leave and had no other source of funds. [33] I also reject Mr Clutterbuck's submission to the effect that by pursuing an application through Q-Super, as opposed to lodging an Application for Workers' Compensation, Ms Marshall made an election about the type of benefit she would seek to access. This is because in responding to the question on the Q-Super form which asked whether she had claimed, or intended to claim, a benefit from WorkCover for her condition she responded (Exhibit 12, page 3): " Yes No?? NOT SURE". [34] Such response is not indicative of making an election. It left the question entirely open in that Ms Marshall was signifying her uncertainty as to her future intentions. [35] Support for this conclusion can be found in the notes of Dr McConnell as well as in the evidence of Ms Marshall. In the course of her evidence Ms Marshall strongly emphasized the point that she was always desirous of returning to work and always believed that she would return at some point in time. However, it was not until she had the complete break down around the middle of 2011 (see paragraph [26] above) that she realised that it was unlikely that she would be able to return to teaching duties in the future. It was this realisation, I conclude, rather than the impending cessation of her Q-Super benefits, which prompted her to lodge her Workers' Compensation Application. [36] Dr McConnell's notes, supported by her correspondence of 15 August 2011, confirm that although Ms Marshall discussed the possibility of lodging a Workers' Compensation Application on both 26 June and 18 August 2009, respectively, they jointly agreed that Ms Marshall's health at that time was such that she would not be able to cope with the processes involved in such application (as Dr McConnell understood them) and that any decision about lodging an application should be deferred until Ms Marshall's condition became more settled. Ultimately, although in Dr McConnell's opinion Ms Marshall was still vulnerable to a relapse and she was still suffering from anxiety and depression, the Workers' Compensation Application form was completed during Ms Marshall's appointment on 7 July Importantly, in my view, Dr McConnell's notes support Ms Marshall's evidence about the reason she decided to lodge a Workers' Compensation claim at that time, as opposed to earlier, viz she had had a break down at work and had come to the realisation that she was unlikely to ever return to work as a teacher. [37] Further, while Dr McConnell readily admitted she regarded herself as an advocate for Ms Marshall, she nonetheless resiled from the contents of her letter of 9 January 2012 during cross-examination by (instead) stating (Transcript 1-29) that she encouraged Ms Marshall not to lodge her Workers' Compensation Application in late June 2009 and to defer it until she was more settled. I regard the distinction, on the facts of this case, to be significant. [38] As it turned out, Ms Marshall, in Dr McConnell's opinion, did not "settle" as well as Dr McConnell hoped. Indeed, it took "at least two years" in Dr McConnell's opinion "before she got into a fairly coping sort of state" (Transcript 1-9). [39] Dr McConnell's use of the words "fairly coping sort of state" also seems to me to be an apt medical description of Ms Marshall's condition between March and June 2011 rather than the type of words which might ordinarily be used by an advocate. Ms Marshall's "return to work" plan, implemented in April 2011, only had her visiting the school for 30 minutes on two days each week in circumstances where she was, initially at least, escorted to and from the classroom by the Rehabilitation Coordinator. However, as noted above, she suffered a breakdown when, in attempting to walk from the classroom back to the school entrance, she deviated from her normal route. Such event reinforces Dr McConnell's opinion that Ms Marshall did not ever get the point where she thought that Ms Marshall "(was) fine, she's safe and that she could cope." (Transcript 1-9). [40] Given Ms Marshall's mental state during the period May 2009 to July 2011 and her discussions with Dr McConnell to the effect that lodgment of any Workers' Compensation Application should be deferred until she was better able to cope with the processes involved, I have come to the conclusion that Ms Marshall has provided a reasonable cause for her failure to lodge her Workers' Compensation Application within the six month period specified at s. 131(1) of the Act. [41] I have also decided that this an appropriate occasion to exercise my discretion (if, indeed, such discretion is required to be exercised given the finding immediately above) to extend time for lodgment of Ms Marshall's Workers' Compensation Application to 7 July 2011.

8 8 [42] In arriving at this decision I have carefully considered the strong submissions from Mr Clutterbuck during the course of which he referred me to the decision of White J in Bird v Bird 1 and four matters which should be considered in any exercise of the statutory discretion to extend time. Most important of these, in the present circumstances, is the potential prejudice to WorkCover and, by extension, Ms Marshall's employer because of the lapse of time between the events said to have caused Ms Marshall's decompensation and the time when those matters are likely to be canvassed in the assessment of her Application. [43] However, notwithstanding that delay, it will still be necessary for Ms Marshall to establish the veracity of her claim in circumstances where her capacity to do that will also be affected by the delay. [44] Further, as the President noted in ANZ Banking Group v Q-COMP 2 : "As to the finding of 'reasonable cause' it seems to me that too much should not be made of the reasonable mind. The limitation period and the power to waive the limitation period are to operate in circumstances in which workers suffering physical, psychiatric and psychological injuries are seeking to claim benefits. It will frustrate the purpose of the Act if a failure to meet the time limit attributable to the very 'injury' complained of is to be denied pardon because a reasonable person who (of course) would not be suffering from the 'injury', would have met the time limit.". [45] For the foregoing reasons I set aside the decision of Q-COMP dated 18 July 2011 and substitute another decision to the effect that Ms Marshall has provided a reasonable cause, within the meaning of s. 131(5)(c) of the Act, for the late lodgment of her Application for Workers' Compensation dated 7 July If it be necessary I also extend time to her to that date to lodge her Application. [46] The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: April Released: 20 June 2012 Appearances: Ms C. Hartigan of Counsel instructed by Macrossans Lawyers for the Appellant. Mr R. Clutterbuck of Counsel directly instructed by the Respondent. 1 Bird v Bird [2002] QCS ANZ Banking Group v Q-COMP [2004] QIC 21.