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  • Unreported Judgment

Clark v Workers' Compensation Regulator

 

[2020] QIRC 10

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Clark v Workers’ Compensation Regulator [2020] QIRC 010

PARTIES: 

Clark, Fay

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2017/222

PROCEEDING:

Appeal against a decision of the Workers’ Compensation Regulator

DELIVERED ON:

22 January 2020

HEARING DATES:

13 November 2019, 13 December 2019, and 21 January 2020

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. That the appeal is dismissed.
  1. That each party bear their own costs in the proceeding.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL – where Appellant has been directed to provide information – where Appellant has failed to comply with directions to provide information – application of rule 45 – appeal dismissed.

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, r 45

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32, s 125, s 553

Workers’ Compensation and Rehabilitation Regulation 2014 (Qld)

CASES:

Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144

Cooper v. Hopgood & Ganim [1998] QCA 114

House v R (1936) 55 CLR 499

Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200

Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73

Quinlan v Rothwell & Anor [2001] QCA 176

Seymour v Workers' Compensation Regulator [2017] QIRC 061

Witten v. Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405

Workers' Compensation Regulator v Varga [2019] QIRC 028

APPEARANCES:

Ms I. Hart as lay agent for the Appellant.

Ms S. Gray, Counsel directly instructed by the Workers’ Compensation Regulator, Respondent.

Reasons for Decision

  1. [1]
    Ms Fay Clark (the Appellant) filed this appeal against a decision of the Workers’ Compensation Regulator (the Respondent) on 4 December 2017. The Appellant was represented throughout these proceedings by her lay agent, Ms Irene Hart. The Appellant claimed to suffer from industrial deafness. The Respondent had made submissions that, inter alia, the Appellant had retired from work some years prior to her claim, and so the appeal should be dismissed under s 125 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WC Act).
  1. [2]
    This matter was mentioned on 13 November 2019, where I informed the parties that said s 125 jurisdictional issue should first be determined at a preliminary hearing. However, at that mention, the Respondent raised an issue regarding the Appellant’s unwillingness to provide disclosure. It is that issue, and a subsequent failure to follow directions, which forms the substance of this decision.
  1. [3]
    In late 2018, the Respondent issued Medicare with a Notice of non-party disclosure, for Medicare to supply relevant information regarding the Appellant. Medicare sought to comply with that Attendance Notice, but the Appellant’s Medicare details were not clear. There was also some question as to whether the Appellant had more than one Medicare account under different identities/dates of birth. On several occasions, the Respondent enquired of the Appellant by email as to what her Medicare account details were. The Appellant was not forthcoming. Her explanation through her representative was that ‘(the Appellant) fell off the database.’ When that issue was raised by the Respondent at the mention of this matter before me, the same explanation was provided by the Appellant.
  1. [4]
    I did not, and do not, find that explanation to be credible. I conveyed that at the first mention of the matter, and each of the subsequent mentions. As such, I directed the Appellant to provide her Medicare details to the Respondent. The Appellant failed to comply with that direction. A further mention was held, and the Appellant was provided another opportunity to comply. The Appellant again failed to comply with that direction, and I was prepared to dismiss this Appeal.
  1. [5]
    However, I refrained from dismissing the matter at that point, because that morning the Appellant emailed to my Associate a letter which Ms Hart stated had been sent to Medicare on the date of the second mention. That letter sought the relevant Medicare information. At that point, I believed the Appellant may be attempting to comply with directions and provided her until early 2020 to comply. 
  1. [6]
    Approximately one month later, on 21 January 2020, a final mention was held. The Appellant had taken no further steps to comply with my Directions, beyond stating that she had sent a second email to Medicare.
  1. [7]
    For the reasons that follow, I have determined that the Appellant’s continued and flagrant refusal to comply with my directions warrants the dismissal of her Appeal.

Background

The First Mention – 13 November 2019

  1. [8]
    In a mention of this matter on 13 November 2019 the Respondent raised that the Appellant had not furnished them with the Appellant's Medicare details:

MS SHAW: We were after some – not submissions or anything like that. We wouldn’t be providing anything like that beforehand, but just in relation to records, we made a request to Department of Human Services to obtain Medicare records and they came back and said that they couldn’t find any record of Ms Clark. We identified that she had been using two different dates of birth; I’m not sure whether that equates to two identities, but, in any event, we put the both dates of birth to them. They couldn’t find any record of her. So I had some correspondence with Ms Hart and her response was to me – I explained the situation, asked for her identifying date of birth and the rest of it that Medicare would have, and on the 22nd of November 2018, she simply said Fay fell off their database. I pursued that a bit further. On the 27th of November, I simply received an answer from Ms Hart saying, “I have already answered your question.” We don’t accept that. Medicare will have records. I don’t accept that their – she’s fallen off their database at all, and we would like them to provide the correct details.[1]

  1. [9]
    When pressed by me for a response, the Appellant’s representative provided the following:

MS HART: I’ve – I’ve – I have – I’ve heard what she said. I’ve answered her question. There’s – I’ve got no more to say.

MS SHAW: Are you not going to provide the – the Medicare details?

MS HART: Well, there’s nothing to provide. I’ve already told her. I’ve answered her question.

MS SHAW: But I don’t accept what you’re saying. It’s absurd. Absolutely absurd. Is Ms Clark using two different identities?

MS HART: No.

MS SHAW: Then can you explain why you don’t want to provide the information?

MS HART: She’s already got what she’s wanted anyway.

COMMISSIONER: Well, if you’re talking about Ms Shaw, then Ms Shaw hasn’t got what she wanted.

MS HART: I’ve already answered the question. As I’ve said, there’s no more to say. There’s no – there’s nothing more to tell you.

COMMISSIONER: That won’t be adequate for a hearing on a medical matter.[2]

  1. [10]
    It was then clearly explained to the Appellant’s representative that the Medicare records are directly relevant to the matter at hand, and that an Attendance Notice to Produce had already been issued by the registry requiring their provision by Medicare. The remaining issue in sourcing the relevant material from Medicare was then explained by the Respondent:

COMMISSIONER: Yes. I see on the file there is an Attendance Notice to Produce. Yes. I see that that’s been filed appropriately with the registry. I see that documents required are a full copy of the Medicare patient and previous histories in written or electronic form for a period from the 6th of November 2013 to the 31st of October 2018, pertaining to the appellant, Fay Clark. And I note that the appellant is known to be using two different dates of birth and those are indicated on the schedule that forms an attachment for form 32B. Okay. So what I’m hearing from Ms Shaw is that the appellant has failed/declined to provide a copy of those documents.

MS SHAW: The – that was directed to Medicare; the - - -

COMMISSIONER: Yes.

MS SHAW: - - - notice to produce, and they’ve indicated that they can’t find any records of Ms Clark with either date of birth. They could not find anything that was similar. So what we’ve asked is for Ms Clark to provide her – and I can tell you exactly – there’s pretty much a repeat in each request – that if she could please provide the details of the – of the identity she provided to Medicare; the date of birth, address and phone number or, particularly, if she could just provide her Medicare number. If she was comfortable doing that then they could identify her immediately, we were told. So we just ask for that to be provided or accurate, personal identifier, such as full name, date of birth, address, so that they can have an attempt to actually identify her.

  1. [11]
    In considering the material before me, I determined that the Medicare details within the possession of the Appellant was certainly relevant to a number of facts in issue, including whether the Appellant had sustained an injury, when that injury may have been sustained, and the other criteria set out in the WC Act.[3] I then indicated to the Parties, on two occasions, that I would direct the provision of that information:

COMMISSIONER: Well, that seems reasonable - - -

MS SHAW: Yeah.

COMMISSIONER: - - - in the matter, and I would direct the appellant to provide that information to the respondent to enable the matter to be progressed.

COMMISSIONER: I’ll issue a further directions order with everything that each of the parties need to do in it and I will issue a further directions order requiring the provision of the Medicare details to enable the respondent to prepare accordingly on the matter. I don’t think that there’s anything more that we need to talk about at this mention, and if you can, I guess, each await the further directions order, attend to those expeditiously, you know, otherwise, we will need to have another mention so that that is sorted. Okay. Thank you. Thanks very much, everyone.

  1. [12]
    As I indicated in my closing comment, if the Appellant did not comply with the directions promptly, the matter would be listed for a further mention. In fact, that is precisely what occurred.
  1. [13]
    A Further Directions Order was issued that day which provided, at Order 2:
  1. That the Appellant supply to the Respondent by 20 November 2019 the Medicare card numbers associated with any accounts the Appellant currently holds or has previously held with Medicare, be they in her current name or any other name, by 4.00pm on 20 November 2019.
  1. [14]
    On 5 December 2019, the Respondent emailed the Industrial Registry and my Associate to confirm that the Appellant had not complied with that direction.

The Second Mention – 13 December 2019

  1. [15]
    A second mention of the matter was then held on 13 December 2019. The Appellant was made aware, by emails from my Associate dated 5 December 2019 and 13 December 2019, that she would be required to show cause as to whether and why they had failed to comply with the directions. The Appellant was repeatedly warned that if no compliance was forthcoming then the appeal may be dismissed, both in the mentions and in emails from my Associate.
  1. [16]
    At that mention, I specifically read rule 45 to the Appellant and her representative, so that it would appear for them on the transcript. I also told them that a further direction would be issued, requiring them to comply by 16 December 2019 or the matter would be dismissed. I subsequently issued that Further Directions Order on 13 December 2019, following the mention.
  1. [17]
    On 17 December 2019, while I was preparing to dismiss this Appeal, the Appellant through her representative emailed to my Associate a letter she had purportedly sent to Medicare on the date of the second mention. That letter sought the information required by my Directions Order.
  1. [18]
    On that basis, I allowed the Appellant extra time over the Christmas and New Year period to comply. A third and final mention was then held.

The Third Mention – 21 January 2020

  1. [19]
    Some 5 weeks after the previous mention, I provided the Appellant one further and final opportunity to comply with my Directions. The Appellant insisted that Medicare had not been available over the holiday period, and hence she had not been given enough time to comply with my Directions. I find that to be a poor excuse, given that there was more than 5 weeks since the last mention, even accounting for public holidays.
  1. [20]
    I asked the Appellant’s representative what actions she or the Appellant herself had taken to comply with my Directions. She stated that two emails had been sent to Medicare. I then asked whether the Appellant or her representative had tried calling Medicare or visiting a Medicare office. They had not. The Appellant insisted that such efforts would be futile, as there would be no physical evidence that the Appellant had undertaken such attempts.
  1. [21]
    First, I note that the Appellant could have provided evidence of such attempts with an affidavit. She did not do so.
  1. [22]
    Second, I believe the Appellant has missed the point of undertaking such efforts. Her primary consideration should not have been to gather evidence of her efforts to comply. She should instead have undertaken every reasonable effort to obtain the relevant material and provide it to the Respondent. Such further efforts would certainly assist in that pursuit.

Submissions

  1. [23]
    In advance of the second mention, the Appellant filed written submissions. These are summarised as follows:
  1. The Appellant has not failed to comply with the directions.
  2. The Respondent already has the relevant information.
  3. The Appellant cannot comply with the directions, because the requested documents or information do not exist.
  4. The Respondent has not given the Appellant access to various documents the Appellant has requested.
  5. The matter has been unduly delayed.
  1. [24]
    The Appellant repeated such arguments in the third mention.
  1. [25]
    In the second and third mentions, the Respondent provided oral submissions to the effect that they agreed with my comments to the Appellant that the appeal should be dismissed if the Appellant fails to comply with the directions. They also tendered email correspondence between the Parties, particularly in response to the Appellant’s fifth submission above regarding delay. That correspondence is effectively that which was alluded to and paraphrased by Ms Shaw for the Respondent at the first mention of the matter, and those emails can be summarised as follows:

15 November 2018: The Respondent made the Appellant aware that the Medicare details of the Appellant were required to progress the matter.

22 November 2018: The Appellant’s agent merely responded, “Fay fell off the database.”

23 November 2018: The Respondent again requested the Appellant’s Medicare details.

27 November 2018: The Appellant responded, “I have already answered your question.” She also noted that she would be uncontactable for the month of December 2018.

  1. [26]
    As such, on my view there are two fundamental questions. First, whether the Appellant has failed to comply with a directions order. Second, whether any such non-compliance warrants dismissal of the appeal.

Non-compliance with directions

  1. [27]
    As set out in the background above, in three mentions of this matter, and in two separate further directions orders, the Appellant has been instructed to provide the Respondent with the Appellant’s Medicare details. Not only was the direction provided verbally at the mentions, for which transcripts are provided to the parties, but the direction was also clearly set out in written orders.  I have no doubt that the Appellant understood those directions.
  1. [28]
    The Appellant had been on notice from the Respondent that such information was sought since at least 15 November 2018. The provision of the Appellant’s Medicare details is not an onerous requirement. For most, it would require no more than reaching into their wallet or purse and retrieving their Medicare card. If that information had been lost, the Appellant could contact Medicare to retrieve it, though I note such an argument is not advanced by the Appellant.
  1. [29]
    The Appellant’s submission is that she simply ‘fell off the (Medicare) database’. I accept that there is a very small proportion of Australians who may not appear in the Medicare database, by reason of various extenuating circumstances such as recent migration. However, no such reason has been provided by the Appellant. In the first mention, the Appellant stated, through her representative, that she simply does not go to the Doctor. Yet, she has provided in her own affidavit filed 5 February 2018 a medical report by Ms Susanne Enright, an audiometrist from Australian Hearing, dated 14 November 2017. The Appellant is a woman of advanced age and has brought this appeal on the basis of a medical injury. I find it impossible that she would never have attended a medical doctor for that and any other usual injuries or ailments.
  1. [30]
    To believe the Appellant’s submissions would, frankly, require the willing suspension of disbelief. I said as much to the parties at each of the mentions of this matter.
  1. [31]
    I find that, on the balance of probabilities, the Appellant does have at least one Medicare account. The Appellant, either personally or through her representative, could easily provide that information to the Respondent. If she was unsure of the information, or had lost it, she could have retrieved it by visiting a local Medicare office, or having her representative call Medicare. She has decided not to.
  1. [32]
    That finding effectively dispenses with appeal grounds 1 and 3.
  1. [33]
    Appeal grounds 2, 4 and 5 have no bearing on whether the Appellant failed to comply with the directions order, though in any event I will briefly address each of those grounds.
  1. [34]
    Regarding appeal ground 2, I made clear to the Appellant in the first mention of this matter that the information held by Medicare is certainly pertinent to this workers’ compensation appeal. At the very least, it will demonstrate whether the Appellant has attended upon healthcare services within the relevant time period. The Respondent clearly explained at the first mention of this matter that they cannot gain access to the Appellant’s full Medicare records, as they are not sure what the details of her Medicare account are. As such, I am not at all convinced that the Appellant could not, or should not, comply with the directions orders.
  1. [35]
    Appeal ground 4 relates to the Respondent equally failing to provide the Appellant information. Importantly, the Appellant does not claim she relies on the provision of that information to comply with the Direction related to her. Instead, she seeks to advance the argument that if someone else is equally non-compliant, then she should not be punished for her own non-compliance by having her Appeal dismissed. That perspective is fallacious for two reasons. First, I have never Directed that the Respondent supply the information the Appellant refers to. Second, that information has no bearing on whether the Appellant is able to comply with the Direction that she provide her Medicare details.
  1. [36]
    Appeal ground 5 relates to delay. This matter was filed in late 2017. Since then, it has been conferenced and mentioned on numerous occasions. The Respondent submits that the matter has been delayed due to the Appellant’s non-compliance with directions. There seems to be some truth to that submission, given the email correspondence handed up during the second mention, which shows requests by the Respondent for this information since 15 November 2018. Beyond those communications, I am not privy to the course of this matter during the conference stage. Nor do I see any reason that I should be in this instance, because the Appellant does not explain how any purported delay has made it impossible for them to comply with directions. Indeed, one would think that delay may provide the Appellant party further opportunity to source that information. I find that this matter was not unduly delayed by the Respondent. Even if I am wrong on that, I find that it has no bearing on the Appellant’s ability to comply with the relevant directions in this instance.
  1. [37]
    As such, I find that the Appellant has failed to comply with Order 2 from the Further Directions Order dated 13 November 2019, and has failed to comply with Order 1 from the Further Directions Order dated 13 December 2019. Each of those simply required the Appellant to provide the Respondent with her Medicare account information. The question is then whether such non-compliance warrants dismissal of this appeal.

Rule 45

  1. [38]
    The Industrial Relations (Tribunals) Rules 2011 (Qld) (the Tribunal Rules) apply to a Workers’ Compensation appeal such as this.[4] I communicated to the parties, first via email from my Associate on 5 December 2019 and 13 December 2019 and later at the second and third mentions of this matter, that I was actively considering dismissing this appeal due to the Appellant’s apparent non-compliance with directions under rule 45 of the Tribunal Rules. Indeed, the Further Directions Order I issued on 5 December 2019, which required the Appellant and her representative to attend the Commission in person and show cause as to why the appeal should not be dismissed, was pointedly issued under rr 41 and 45.
  1. [39]
    Rule 45 of the Tribunal Rules provides (my emphasis):

45     Failure to attend or to comply with directions order

  1. (1)
    This rule applies if—
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
  2. (b)
    the party fails to attend the hearing or conference.
  1. (2)
    This rule also applies if—
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
  2. (b)
    the party fails to comply with the order.
  1. (3)
    The court, commission or registrar may—
  1. (a)
    dismiss the proceeding; or
  2. (b)
    make a further directions order; or
  3. (c)
    make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  4. (d)
    make orders under paragraphs (b) and (c).
  1. [40]
    The power under rule 45(3)(a) involves an exercise of discretion. Foremost, discretionary powers must be “exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.”[5] In exercising that discretion, I am informed by several factors, which are set out below. Ultimately, however, I must consider the particular circumstances of this case.[6]
  1. [41]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to rule 45. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):

As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.[7]

  1. [42]
    Such reasoning was followed by his Honour O’Connor VP in this jurisdiction in Workers' Compensation Regulator v Varga [2019] QIRC 028, and Seymour v Workers' Compensation Regulator [2017] QIRC 061, as well as by his Honour Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144.
  1. [43]
    The Appellant’s default is certainly continuing, given her unwillingness to supply the information per my findings above. It also imposes an unacceptable burden on the Respondent, as they are unable to meaningfully investigate the matter and progress their response to the appeal without access to that relevant medical information.
  1. [44]
    In the exercise of my discretion under rule 45, I am also minded to consider the purpose of the Tribunal Rules, as set out in rule 6:
  1. Purpose of rules

The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.

  1. [45]
    The terms ‘just’ and ‘expeditious’ may sometimes appear to be at odds. Australian Courts and Tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided (my emphasis):

There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.[8]

  1. [46]
    While his Honour Thomas JA was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions,[9] as the underlying question to be determined is consistent with the exercise of discretion under rule 45.
  1. [47]
    In this matter, the Appellant’s failure to comply with directions has resulted in a fundamental undermining of the Respondent’s ability to fully prepare their case. As such, were this matter to progress to hearing, in the current state of the Appellant’s noncompliance, it would be fundamentally unjust to the Respondent.
  1. [48]
    One alternative to dismissal would be to place this matter into abeyance until either the Appellant complies with the directions, or the matter lapses due to inactivity. However, the Appellant has never expressed any genuine desire to comply with the directions, presently or at some stage in the future. While the Appellant purportedly sent two emails to Medicare over the course of five weeks, she has taken no further action. It would have been simple for the Appellant to have her representative call Medicare, or accompany her to a Medicare office. The Appellant’s decision not to do so evinces, to my mind, an intention that she was not genuinely intending to comply with my Directions. As such, further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter, which has already been on foot since 2017. 
  1. [49]
    Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under rule 45 to dismiss this appeal.

Costs

  1. [50]
    I invited both parties for submissions as to costs at both the second and third mentions of this matter. The Appellant’s submission was effectively that she had not failed to comply with the Directions, and so if the matter was dismissed it was not her fault. The Respondent submitted that the matter should be dismissed because of the Appellant’s default, and that costs should follow that cause.
  1. [51]
    I agree with the Respondent that this Appeal is being dismissed because of the Appellant’s default in complying with my Directions. No doubt they have expended substantial efforts in this matter. However, the power to award costs in a Workers’ Compensation matter is ultimately discretionary.[10] The matter has not progressed to hearing, where the expense of experts may have been incurred. Nor did the Appellant instruct a lawyer, who might have warned her from the outset about the perils of failing to comply with directions. As such, I make no order as to costs.

Conclusion

  1. [52]
    The Respondent issued Medicare with a Notice of non-party disclosure. In a worker’s compensation appeal, that is not an unusual course. That information can shed important light on the existence, nature and cause of an injury sustained by the Appellant. The Respondent was subsequently contacted by Medicare regarding difficulty locating the Appellant’s Medicare records.
  1. [53]
    I directed the Appellant to provide the Respondent with the Appellant’s Medicare details, twice in written Directions Orders and verbally at the first and second mentions (for which transcripts were provided). On each occasion, the Appellant refused to comply with that direction. The excuse offered by the Appellant was that she ‘fell off the (Medicare) system’. I do not believe that excuse. I accept that in rare and particular circumstances, an Australian person may not have an account with Medicare or that details may be incorrect or change over time. However, in this instance no further circumstances, evidence or explanation accompanied that excuse at the time of the email from the Appellant to the Respondent in 2018, nor have any been supplied to date. As such, I find the Appellant’s explanation regarding her failure to comply with my directions to be not credible.
  1. [54]
    The Appellant has been afforded ample opportunities to comply. The consequences of noncompliance were also clearly explained on numerous occasions. In particular, at the second mention of this matter, I warned the Appellant in no uncertain terms that if she did not promptly comply with my directions, then her appeal will be dismissed under rule 45. To date, the Appellant remains noncompliant.
  1. [55]
    Were this appeal to proceed, the Respondent would be prevented from accessing information which would allow them to fully prepare their case, which would create a stark injustice.
  1. [56]
    As such, for that reason and the further reasons above, I find that this appeal cannot proceed, and should be dismissed under rule 45. I order accordingly.

Orders

  1. That the appeal is dismissed.
  2. That each party is bear their own costs in the proceeding.

Footnotes

[1] T-P6-7

[2] T-P6-7

[3] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32.

[4] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 553.

[5] House v R (1936) 55 CLR 499, 503.

[6] Cooper v. Hopgood & Ganim [1998] QCA 114, 6; citing Witten v. Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.

[7] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200.

[8] Quinlan v Rothwell & Anor [2001] QCA 176, 8.

[9] See, eg, Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.

[10] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 558; Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) reg 132.

Close

Editorial Notes

  • Published Case Name:

    Clark v Workers' Compensation Regulator

  • Shortened Case Name:

    Clark v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 10

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    22 Jan 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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