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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Sandhu v Workers' Compensation Regulator  QIRC 033
Rajdeep Singh Sandhu
Workers' Compensation Regulator
Commission acting on own motion.
28 February 2020
WORKERS COMPENSATION APPEAL – Commission acting on own motion to dismiss proceeding – where the appellant has failed to communicate with the Commission – where the appellant has failed to comply with directions of the Commission – where the appellant has repeatedly failed to appear at mentions - whether discretion to dismiss proceeding is enlivened
Industrial Relations (Tribunal) Rules 2011, r 6, r 45
Workers' Compensations and Rehabilitation Act 2003, s 552A
Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) FCR 388
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd  QIC 73; 180 QGIG 1209
Paul Scott v State of Queensland & Ors  QIRC 115
Quinlan v Rothwell & Anor  QCA 176
No appearance for the Appellant.
Ms C. Godfrey on behalf of the Respondent.
Reasons for Decision
- Dr Sandhu filed a Form 9, Notice of Appeal with the Commission on 16 May 2019. He sought to appeal a decision of the Workers' Compensation Regulator ('WCR') dated 1 May 2019 confirming an earlier rejection of his claim by WorkCover Qld.
- On 17 May 2019 directions were issued from the Registry with respect to mutual exchange of lists of documents and documents between the parties. It appears from subsequent conduct of the matter that Dr Sandhu complied with these directions.
- The matter was then listed for a conference pursuant to s 552A of the Workers' Compensations and Rehabilitation Act 2003. A conference took place on 8 August 2019.
- Dr Sandhu attended the conference on 8 August 2019.
- On 8 August 2019, following the conference, I issued directions requiring Dr Sandhu to file and serve his statement of facts and contentions ('SOFC') and list of stressors by 3 October 2019.
- On 4 October 2019 Dr Sandhu emailed the Registry seeking an extension to 7 October 2019 for the filing of his SOFC and list of stressors. With consent of WCR I granted the extension.
- Dr Sandhu filed and served his SOFC and list of stressors on 8 October 2019. Relevantly they were, in total, 77 pages in length.
- On 29 October 2019, at 7:05am, Ms Godfrey on behalf of the WCR emailed Dr Sandhu and the Commission to seek an extension of time to file their SOFC. They sought an extension until 8 November 2019.
- On 29 October 2019, at 7:49am, Dr Sandhu emailed a reply to Ms Godfrey and the Commission confirming his consent to the extension sought.
- Later that day, at 9:18am Dr Sandhu sent a further email qualifying the extent to which he consented to extension. This is the last communication Dr Sandhu has had with the WCR or the Commission.
- On 18 November 2019 the Commission received and email from Ms Godfrey on behalf of the WCR. Ms Godfrey advised that:
- She had sought agreement to a further extension for filing the statement of facts and contentions from Dr Sandhu but he had failed to respond to her email;
- She had concluded that the length and complexity of Dr Sandhu's SOFC and statement of stressors was such that it made it impractical for the WCR to respond to; and
- She sought a further s 552A conference to address the difficulties arising from the SOFC and statement of stressors filed by Dr Sandhu.
- The matter was then listed for mention on 29 November 2019. A listing notice was issued in the usual fashion to Dr Sandhu via email on 21 November 2019.
- I became aware of a decision by another member of the Commission on or shortly after 22 November 2019 that also involved Dr Sandhu. I noted that Dr Sandhu did not attend the hearing in that matter on 18 November 2019. His absence from that hearing was significant because the purpose of those proceedings was to determine an application to dismiss unfair dismissal proceedings he had filed because they were filed outside the statutory time limit.
- That matter proceeded before the other member in his absence on 18 November 2019 and his unfair dismissal applications were dismissed.
- I note the only material provided by Dr Sandhu to the Commission regarding the out of time issues appears to be affidavits accompanying his (two) unfair dismissal applications that were provided at the time of their filing in the early part of 2019. Beyond those, it seems Dr Sandhu made no attempt to file material or otherwise resist the application made by his former employer to dismiss his unfair dismissal proceedings.
- There was no appearance by Dr Sandhu at the mention of this matter on 29 November 2019. At the time the matter was called on, my associate was directed to leave the hearing room and inspect the corridors in the public area to confirm that Dr Sandhu was not present. He was not.
- As a consequence of Dr Sandhu's failure to attend, without explanation, at both the mention on 29 November and his other proceedings on 18 November I issued a directions order on 4 December 2019 requiring Dr Sandhu to file and serve written submissions as to why his appeal should not be dismissed.
- I note that there were two typographical errors in the directions order of 4 December 2019. Firstly, it referred to a mention of the matter on '29 October 2019' when it should have referred to the mention on 29 November 2019. Secondly it required Dr Sandhu to provide his submissions by 20 January '2019', when it should have said 20 January 2020.
- While such errors could necessitate clarification in certain circumstances, I do not consider that they materially affect the message communicated to Dr Sandhu. In any event, the directions order did not prompt any response from Dr Sandhu either seeking clarification, or at all.
- No further communications were received from Dr Sandhu throughout December 2019 or January 2020. A listing notice was issued in the usual fashion to the parties via email on 10 February 2020 for a mention to be held on 24 February 2020.
- There was no appearance by Dr Sandhu at the mention on 24 February 2020. At the time the matter was called on, my associate was directed to leave the hearing room and inspect the corridors in the public area to confirm that Dr Sandhu was not present. As with the previous occasion, Dr Sandhu could not be found on the premises.
- I indicated to Ms Godfrey, who appeared for the WCR, that I proposed to dismiss Dr Sandhu's appeal. The WCR did not offer any objection to this proposal.
- Dr Sandhu last had contact with the Commission on 29 October 2019. Since that time he has:
- Failed to appear in other proceedings where a final determination of his dismissal applications before the Commission were being dealt with;
- Failed to appear at the mention on 29 November 2019 without explanation;
- Failed to comply with directions issued on 4 December 2019 that specifically foreshadowed the dismissal of these proceedings;
- Failed to appear at the mention on 24 February 2020 without explanation.
- In all of these circumstances I consider these facts enliven my discretion to dismiss the proceedings.
The application of the Industrial Relations (Tribunal) Rules 2011
- A discretion to dismiss proceedings arises under the Industrial Relations (Tribunal) Rules 2011 ('the Rules'). Rule 6 sets out the purpose of the rules as follows:
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.
- Rule 6 reveals a function of the Rules to include the expeditious disposition of matters in the Commission.
- Rule 45 gives the Commission a power to dismiss the proceedings in circumstances where there is a failure to attend or comply with directions. It provides:
45 Failure to attend or to comply with directions order
- (1)This rule applies if–
- (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;
- (b)the party fails to attend the hearing or conference.
- (2)This rule also applies if–
- (a)A party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
- (b)The party fails to comply with the order.
- (3)The court, commission or registrar may—
- (a)dismiss the proceeding; or
- (b)make a further directions order; or
- (c)make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
- (d)make orders under paragraphs (b) and (c).
- In Paul Scott v State of Queensland & Ors the Vice President provides a useful summary of relevant authorities:
In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd his Honour President Hall, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell & Anor as follows:
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.
Whilst Quinlan v Rothwell & Anor related to the application of the Uniform Civil Procedure Rules 1999 in respect of application to dismiss for want of prosecution, in my respectful view, the reasoning of Thomas JA has equal application to the current proceedings.
In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, Wilcox and Gummow JJ in dealing with a similar provision under the Federal Court Rules stated that the discretion conferred by the rule was:
unconfined, except for the condition of noncompliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power." The first were "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". The second were 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.
Their Honours went on to observe:
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.
(Underlining and emphasis added)
- Dr Sandhu has failed to appear before the Commission on three separate occasions, including one in which a significant and ultimately final determination of his unfair dismissal application was being heard. He has further failed to respond to a directions order in which the dismissal of his appeal was expressly foreshadowed.
- Even if the typographical errors in the directions order somehow disqualify it from consideration in this process, I consider the repeated non-attendances by Dr Sandhu, without any explanation or contact with the Commission, are sufficiently plentiful to justify an exercise of my discretion.
- In these circumstances I consider Dr Sandhu's matter falls squarely into the first case described by Wilcox and Gummow JJ in Lenijamar i.e. where there is a demonstrated history of non-compliance by Dr Sandhu that indicates an inability or unwillingness to co-operate with the Commission and the WCR in having the matter ready for trial within an acceptable period.
- I make the following orders:
- Pursuant to r 45(3) of the Industrial Relations (Tribunal Rules) 2011, I dismiss the proceedings in matter WC/2019/82.
- Published Case Name:
Sandhu v Workers' Compensation Regulator
- Shortened Case Name:
Sandhu v Workers' Compensation Regulator
 QIRC 33
Member Dwyer IC
28 Feb 2020