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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Andrews v Workers' Compensation Regulator  QIRC 104
Workers' Compensation Regulator
Commission acting on own motion
10 July 2020
Industrial Commissioner Dwyer
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 – whether discretion to dismiss proceeding is enlivened
Industrial Relations (Tribunal) Rules 2011, r 6, r 45
Workers' Compensations and Rehabilitation Act 2003, s 144A, s 144B, 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
Reasons for Decision
- On 26 September 2018 Mr Andrews filed a Notice of Appeal ('the appeal') in respect of a decision by the Workers' Compensation Regulator ('the Regulator') dated 29 August 2018 ('the decision').
- Mr Andrews had successfully applied for benefits under the Workers' Compensations and Rehabilitation Act 2003 (Qld) ('the WCR Act') in respect to his injury, and the decision related to the cessation of the payment of those benefits pursuant to s 144A and 144B of the WCR Act.
- The appeal was originally allocated to another Member and progressed in the usual fashion i.e. Directions were issued with respect to procedural aspects on 11 October 2018, a s 552A conference was convened on 22 November 2018, further Directions were issued on 22 May 2019, and the parties filed their Statements of Facts and Contentions (respectively) on 20 June and 17 July 2019.
- The appeal was subsequently allocated to me in or after July 2019.
- A further s 552A conference was convened on 10 October 2019. At that conference Mr Andrews confirmed that he had commenced personal injuries proceedings ('the PI claim') in respect to the injury that was the subject of the appeal. He further advised that a compulsory conference for the PI claim was scheduled to proceed on 3 December 2019. In those circumstances the Regulator agreed to adjourn the matter pending the completion of the compulsory conference.
- Following the Christmas break my Associate emailed the parties on 16 January 2020 to enquire whether Mr Andrews had resolved his PI claim at the conference and whether the appeal might now be resolved. No reply was immediately received from Mr Andrews.
- My Associate emailed the parties again on 7 February 2020 to request Mr Andrews provide an update on the status of the appeal as soon as possible. Mr Andrews responded on the same day via an email and said:
The matter remains unresolved, however an application has been filed in the District Court, so I would like to withdraw this application.
- Following receipt of the email from Mr Andrews, Ms Jamieson of the Regulator completed and forwarded a Form 27 Request to discontinue application to Mr Andrews. Mr Andrews only had to sign the Form 27 and return it to the Commission to give effect to his expressed intention to withdraw his application.
- On 18 February 2020, having not heard further from Mr Andrews, my Associate emailed the parties and further invited Mr Andrews to sign the Form 27 if he wished to discontinue. No reply was immediately forthcoming from Mr Andrews and the matter was subsequently listed for mention on 5 March 2020.
- A Listing Notice for Mention was dispatched to the parties on 28 February 2020.
- Mr Andrews failed to appear at the Mention on 5 March 2020. At the Mention I foreshadowed with the Regulator that I would issue a formal Direction to Mr Andrew to respond and if he failed to do so then I would dismiss the matter. There was no objection from the Regulator to this proposed course of action.
- On 7 March 2020 Mr Andrews emailed the Registry in reply to the email that had attached the Listing Notice on 28 February 2020 and said:
Sorry I just read this. I don't have access to a printer and I've been home all week looking after kids and my sick elderly mother. I'm struggling to get on top of things and I don't know when I'll get a few hours to find a printer somewhere. I'll try to get the form to discontinue signed in the next few days.
- This was the last communication from Mr Andrews.
- On 13 March 2020 a Direction was issued requiring Mr Andrews to notify the Registry and the Regulator in writing of his intentions with respect to the future conduct of the appeal by 4:00 pm on 20 March 2020. Mr Andrews did not comply with this Direction.
- On 27 May 2020 a further Directions Order was made that required Mr Andrews to show cause by 4:00 pm on 19 June 2020 as to why his appeal should not be dismissed pursuant to r 541(b)(ii) of the Industrial Relations Act 2016 ('the Act') or r 45 of the Industrial Relations (Tribunal) Rules 2011 ('the Rules'). Mr Andrews did not comply with this Direction.
- Mr Andrews has now failed to appear at a listed Mention and failed to comply with two Directions Orders.
- In all of these circumstances I consider this matter enlivens my discretion to dismiss the proceedings.
The application of the Industrial Relations (Tribunal) Rules 2011
- Rule 6 of the Rules 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).
- Mr Andrews has no fewer than three separate instances where he has failed to comply with an Order. I note that he has twice in correspondence indicated a desire to withdraw his appeal.
- In these circumstances I consider Mr Andrew's matter falls within the first case described by Wilcox and Gummow JJ in Lenijamar i.e. where there is a demonstrated history of non-compliance by Mr Andrews that indicates an inability or unwillingness to co-operate with the Commission and the Regulator in either attending to the formalities of discontinuance, or indicating a desire to further progress his appeal.
- I make the following orders:
- Pursuant to r 45(3) of the Industrial Relations (Tribunal Rules) 2011, I dismiss the proceedings in matter WC/2018/172.
- Published Case Name:
Andrews v Workers' Compensation Regulator
- Shortened Case Name:
Andrews v Workers' Compensation Regulator
 QIRC 104
10 Jul 2020