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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Tuesley v Workers' Compensation Regulator  QIRC 027
Workers' Compensation Regulator
Application to withdraw deemed admissions
20 February 2020
11 December 2019
WORKERS' COMPENSATION – PRACTICE UNDER INDUSTRIAL TRIBUNALS RULES – Application to withdraw deemed admissions – application made following formal admission of facts – lengthy delay – Respondent prejudiced – Application dismissed.
Industrial Relations (Tribunals) Rules 2011 (Qld) r 49
Workers' Compensation and Rehabilitation Act 2003 (Qld) s 553
Hanson Construction Material P/L v Davey & Anor  QCA 246
Ridolfi v Rigato Farms Pty Ltd  2 Qd R 455
Tyler v Custom Credit Corp Ltd & Ors  QCA 178
Mr A. Stobie of counsel for the Appellant.
Mr P.B. O'Neill of counsel for the Respondent.
Reasons for Decision
- Ms Maureen Tuesley, seeks the leave of the Queensland Industrial Relations Commission to withdraw deemed admissions made during the course of the proceedings. Ms Tuesley appeals a decision of the Regulator upholding a decision of WorkCover Queensland to reject Ms Tuesley's Notice of Claim for Damages. The application to withdraw deemed admissions was made by Ms Tuesley after the hearing of the appeal had commenced and approximately eight months after the Notice to Admit Facts had been served by the Regulator.
- Ms Tuesley applies only to withdraw the deemed admissions with respect to paragraph 34 of the Notice to Admit. Ms Tuesley does not seek to withdraw the deemed admissions made to paragraphs 1 to 33 of the Notice to Admit.
- During the hearing of the application, the Regulator confirmed that it no longer pressed paragraph 34(a) of the Notice to Admit. Accordingly, I will only consider the application in so far as it relates to paragraphs 34(b) to 34(h).
- The application arises because Ms Tuesley did not serve a notice disputing the facts contained in the Notice to Admit within 14 days and consequently those facts within the Notice to Admit were deemed to be admitted. Following that, and on the first day of hearing, Ms Tuesley's representative formally admitted the facts contained in the Notice to Admit.
- The Regulator objects to the application to withdraw the admissions.
Principles relevant to the exercise of the discretion
- Relevant principles which may be considered in the exercise of the discretion include:
- (a)how and why the admission came to be made;
- (b)what is the evidence surrounding the issues the subject of the admission and whether there was likely to be a real genuine dispute about the evidence;
- (c)has there been delay in making the application for leave to withdraw the admission; and
- (d)what prejudice, if any, will the respondent suffer.
- An explanation on oath should be given by the applicant with respect to the matters referred to in paragraphs 5(a) and 5(b) above.
How and why did the admissions come to be made?
- The Notice to Admit was issued prior to the commencement of the appeal hearing. Ms Tuesley did not respond by issuing a notice within 14 days disputing the stated facts in the Notice to Admit. In failing to respond within 14 days the statements of fact contained in the Notice to Admit were deemed to be admitted by Ms Tuesley.
- The appeal was listed for hearing before Deputy President Bloomfield commencing on 18 February 2019. During the hearing, the Regulator sought to tender the Notice to Admit. Deputy President Bloomfield enquired as to whether Ms Tuesley objected to the tendering of the Notice to Admit. Her representative confirmed that there was no objection and the Notice to Admit was marked as an exhibit in the appeal.
- The tendering of the Notice to Admit without objection occurred not long after the commencement of the hearing at 10.04am. The hearing continued throughout that day with Ms Tuesley commencing her evidence at 10.20am. After a luncheon adjournment, and during cross-examination, the Notice to Admit was shown to Ms Tuesley and a statement put to her which included a reference to the information as being "…admitted as facts in these proceedings…".
- After resuming, Ms Tuesley's representative advised that no notice disputing the facts was available and that he would "…take the course of formally admitting the facts alleged in that notice, which is the exhibit…".
- After the formal admission of the facts contained in the Notice to Admit, Ms Tuesley continued to be cross-examined until approximately 2.43pm when, at that time, she left the courtroom. Ms Tuesley's representative subsequently sought an adjournment on the basis that a personal matter had arisen that was impacting on Ms Tuesley's ability to give evidence. The proceedings were adjourned to a date to be fixed with the obligation on the parties to contact the registry for the proceedings to be relisted.
- Two affidavits have been filed in support of Ms Tuesley's application, each deposed to by Mr Bruce, her solicitor. Those affidavits were filed on 8 October 2019 and 30 October 2019 respectively. The numbered paragraphs of each of the affidavits are the same however, the affidavit of 8 October 2019 appears to have been filed without the relevant annexures. That is the only difference between the two affidavits. Accordingly, I have only had regard to the affidavit of Mr Bruce filed 30 October 2019.
- Mr Bruce confirms that he received the Notice to Admit from the Regulator on 31 January 2019. He explains that on 12 February 2019 he drafted a Notice Disputing Facts but that it was not sent to the Regulator. Mr Bruce does not provide a positive explanation as to why the Notice Disputing Facts was not sent. Rather, Mr Bruce stated "upon reviewing the file it seems that the Notice Disputing Facts was not emailed to the Respondent prior to 14 February 2019, as was intended …".
- Mr Bruce attaches the Notice Disputing Facts to his affidavit which is in the following terms:
The Appellant disputes the facts specified in the Respondent's Notice to Admit Facts dated 31 January 2019.
- Mr Bruce states that "this error was not brought to light until day one of the QIRC hearing on 18 February 2019". There is no explanation as to how that error came to be. The next matter addressed in Mr Bruce's affidavit is that on 11 June 2019 he sent correspondence to the Regulator requesting its consent to the removal of paragraph 34 from the deemed admissions.
- Mr Bruce's affidavit does not address what occurred in the hearing after the "error" came to light. There is no explanation provided by Mr Bruce (or any other deponent) as to why the Notice Disputing Facts was not available when the matter was stood down on 18 February 2019. No explanation is provided as to why on 18 February 2019, when the matter came to light and an adjournment was sought, Ms Tuesley's representatives did not seek, at that time, to press her dispute of the facts and apply to withdraw the deemed admissions. Further, no explanation is provided as to why, given Ms Tuesley's purported intention to dispute the facts, the formal admissions were made on her behalf at the hearing. The formal admissions were made following an adjournment and were seemingly clear and deliberate. That conduct is inconsistent with Mr Bruce's statement that it was Ms Tuesley's intent to dispute the facts. In the circumstances, this conduct requires an explanation, yet Mr Bruce's affidavit is silent to these matters.
- It was submitted by Mr Stobie that the formal admission made during the hearing was "redundant" and "otiose" on the basis that the deemed admissions were in place. I do not accept that submission. On Ms Tuesley's case the deemed admission was made by error in circumstances where she intended to dispute the facts. The facts were deemed to be admitted by the operation of rule 49(2) of the Industrial Relations (Tribunals) Rules 2011 (Qld). The formal admissions take on a difference character. Whilst they relate to the same subject matter, they were not made in error and were made as a result of a clear and deliberate step by Ms Tuesley's legal representative on her behalf during the course of the hearing after the "error" and, consequently, the deemed admissions, had come to light.
- I am not satisfied that the affidavit filed on behalf of Ms Tuesley has addressed all matters relevant and necessary to explain how and why the admissions came to be made.
What is the evidence surrounding the issues the subject of the admission and is there a real genuine dispute about the evidence?
- The matters in dispute are contained in paragraph 34 of the Notice to Admit which relevantly states:
34. Throughout the period from 2010 to 2014 the Appellant had significant non-work related stressors which included:
- The death of her father;
- Concerns over her own health and functioning;
- Financial issues;
- Significant concerns over the health of her son and his psychological functioning with those concerns including alcohol and illicit drug use;
- Concerns regarding difficulties in her daughter's relationship and concerns about her daughter's welfare;
- Difficulties in her relationship with her son and his partner and her child who were all residing with the Appellant;
- Concerns over her son's relationship issues;
- The illness and subsequent death of her mother.
- As noted above, Ms Tuesley is required to provide an explanation on oath with respect to the evidence surrounding the issues. The nature of this obligation was discussed by Williams JA in Ridolfi who clarified that it would require "…detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn".
- Ms Tuesley has not produced an explanation on oath particularising the issues, if any, she would raise at the hearing with respect to the matters contained in paragraph 34.
- Mr Bruce's affidavit goes no further than to put the issues in dispute and certainly does not particularise the evidence that would be relied on at the hearing in relation to the matters in dispute.
- Submissions made on Ms Tuesley's behalf point to the provision of a witness list prior to the hearing which included a number of medical practitioners and says that this list indicates a preparedness to present evidence about matters canvassed in the entire Notice to Admit. The issue here, however, is that Ms Tuesley does not seek to withdraw the admissions made with respect to the entire Notice to Admit but only with respect to paragraph 34. No submissions are made with respect to which witness on the list is relevant to the matters which are disputed facts in paragraph 34. Further, and of greater significance, no explanation is provided as to what evidence would be relied on by Ms Tuesley to dispute those matters.
- The Regulator relied on an affidavit of Ms Jamieson attaching medical reports it says supports the admissions made with respect to paragraph 34. Ms Jamieson was not cross-examined and it remains unclear to what extent, if any, Ms Tuesley will seek to contradict that evidence.
- I am not satisfied that Ms Tuesley has provided information on oath as to the evidence surrounding the issues and to the nature of the dispute about the evidence.
Was there delay in making the application?
- The Notice to Admit was issued by the Regulator on 31 January 2019. This application was filed by Ms Tuesley on 8 October 2019. That is a delay of approximately 8 months.
- Mr Bruce's affidavit explains the delay to the extent that the Notice to Admit was not responded to within the 14 days as specified in rule 49. He does not explain the length of the delay between 18 February 2019 and 8 October 2019.
- The failure to explain the delay may be connected, in some respects, to the failure to explain why formal admissions were made on 18 February 2019 rather than a step taken to dispute the facts. Given that Ms Tuesley was legally represented and that the formal admission was made as a deliberate step after an adjournment, it is unsatisfactory that no explanation for this has been made.
- Mr Bruce deposes to sending correspondence to the Regulator on 11 June 2019, nearly 4 months following the making of the formal admissions. Mr Bruce does not explain the cause of the delay between 18 February 2019 and 11 June 2019. The correspondence sought the Regulator's consent for the removal of paragraph 34 from the Notice to Admit.
- The Regulator responded to that correspondence on 16 July 2019 refusing to consent to the removal of the paragraph. No explanation is provided as to why Ms Tuesley delayed taking any further steps between receipt of the Regulator's letter on 16 July 2019 and filing the application on 8 October 2019.
- I am not satisfied that Ms Tuesley has provided a proper explanation as to the extent of delay in this matter.
What prejudice has the respondent suffered?
- The Regulator identifies four matters going to its prejudice if leave were permitted to withdraw the admissions including:
- (a)the loss of the deemed admissions themselves;
- (b)by now being required to prove those facts at an additional cost including having to locate Ms Tuesley's treating medical practitioners from 5 to 9 years ago;
- (c)the possibility that the Regulator may not be able to locate one or more of Ms Tuesley's treating medical practitioners given the effluxion in time since the relevant events;
- (d)the almost inevitable diminution in the memories of those medical practitioners of the relevant events and how significant (or otherwise) that they may have been given the significant amount of time that has now gone past.
- I consider that the delay in commencing this application would result in the Regulator suffering prejudice if leave to withdraw was granted. Whilst it is arguable that some of that prejudice may be overcome because the medical witnesses, at least, would be assisted by their notes and reports that they prepared at an earlier time, it does not overcome the prejudice that arises due to the effluxion of time and that has been described as "insidious as it is subtle in that the parties cannot demonstrate what it is that they have forgotten".
- In addition to the matters I have considered above, I have also considered what prejudice Ms Tuesley may suffer should leave not be granted.
- It is difficult to assess this in a complete way due to the lack of information on oath provided by, or on behalf of, Ms Tuesley, particularly with respect to what evidence she would call disputing the facts in paragraph 34.
- The admissions to paragraph 34 are admissions to the facts that during a specified period, Ms Tuesley had "significant non-work related stressors" which are then listed. It will still be a matter for the Commission to determine what weight should be placed on those stressors and whether the employment is a significant contributing factor to the injury.
- I do not consider that Ms Tuesley will suffer prejudice if leave is not granted to withdraw the admissions as she will not be prevented or limited in how she conducts her case with respect to the Commission's determination as to whether she has suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).
- For the forgoing reasons, the application is dismissed.
- The Appellant is to pay the Respondent's costs of this application to be agreed, or failing agreement, to be the subject of a further application to the Commission.
 The application to withdraw deemed admissions was filed on 8 October 2019.
 The hearing commenced on 18 February 2019 and was adjourned to a date to be fixed.
 On 31 January 2019.
 Any following reference to "paragraph 34" is a reference to paragraph 34(b) to 34(h).
 Industrial Relations (Tribunals) Rules 2011 (Qld) r 49(1).
 Ibid r 49(2).
 Ibid r 49(3).
 With reference to an analogous provision, rule 189 of the Uniform Civil Procedure Rules 1999 (Qld), in Ridolfi v Rigato Farms Pty Ltd  2 Qd R 455, .
 See Ridolfi v Rigato Farms Pty Ltd  2 Qd R 455 and Hanson Construction Material P/L v Davey & Anor  QCA 246.
 Ridolfi v Rigato Farms Pty Ltd  2 Qd R 455, .
 It was issued on 31 January 2019 and the hearing commenced on 18 February 2019.
 Industrial Relations (Tribunals) Rules 2011 (Qld) r 49(2).
 Ibid r 49(3).
 T1-5, L 32.
 T1-52, L 2-8.
 T1-52, L 9-10.
 T1-53, L 21-22.
 T1-53, L 39-40.
 T1-19, L 31.
 As noted in paragraph 34(a), this admission is not pressed by the Regulator.
 Ridolfi v Rigato Farms Pty Ltd  2 Qd R 455, .
 Affidavit of Ruth Jamieson sworn on 11 December 2019.
 Tyler v Custom Credit Corp Ltd & Ors  QCA 178, .
- Published Case Name:
Tuesley v Workers' Compensation Regulator
- Shortened Case Name:
Tuesley v Workers' Compensation Regulator
 QIRC 27
20 Feb 2020