Wren v Workers' Compensation Regulator
[2024] ICQ 4
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- Wren v Workers' Compensation Regulator[2024] ICQ 4
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Wren v Workers' Compensation Regulator[2024] ICQ 4
Wren v Workers' Compensation Regulator[2024] ICQ 4
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Wren v Workers' Compensation Regulator [2024] ICQ 4 |
PARTIES: | JONATHAN JAMES MCMILLAN WREN (Applicant) v WORKERS' COMPENSATION REGULATOR (Respondent) |
FILE NO: | C/2013/48 |
PROCEEDING: | General Application |
DELIVERED ON: | 6 March 2024 |
HEARING DATE: | On the papers |
DATES OF WRITTEN SUBMISSIONS: | Applicant's submissions filed on 14 November 2022 and Applicant's further submissions filed on 27 November 2023 Respondent's submissions filed on 29 November 2022 and Respondent's further submissions filed on 20 December 2023 |
MEMBER: | Merrell DP |
ORDER: | The Applicant's application filed on 10 October 2022 is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – FINALITY OF DECISIONS – where, in 2013, the Applicant, pursuant to the Workers' Compensation and Rehabilitation Act 2003, commenced proceedings in the Queensland Industrial Relations Commission appealing a review decision of the Respondent confirming the rejection of the Applicant's claim for workers' compensation – where the Queensland Industrial Relations Commission dismissed the appeal – where, in 2013, the Applicant appealed the decision of the Queensland Industrial Relations Commission to the Industrial Court of Queensland – where in 2014, the Applicant filed a notice of discontinuance prior to the hearing of the appeal before the Industrial Court of Queensland – where the Industrial Court of Queensland allowed the discontinuance – where in 2022, the Applicant applied to the Industrial Court of Queensland for his appeal to 'be recommenced' – whether the Industrial Court of Queensland, pursuant to the Workers' Compensation and Rehabilitation Act 2003, has power to allow the Applicant to reinstate his discontinued application to appeal – whether the Industrial Court of Queensland, pursuant to the Industrial Relations Act 2016, has power to allow the Applicant to reinstate his discontinued application to appeal – assuming, without deciding, that the Industrial Court of Queensland does have power to allow the Applicant to reinstate his discontinued application to appeal, there is no basis to allow the Applicant to reinstate his appeal – Applicant's application dismissed COURTS AND JUDGES – JUDGES – POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS – appropriate assistance a court is to provide to a litigant-in-person – Applicant a litigant-in-person – where the Applicant's appeal was mentioned before the Industrial Court of Queensland – appropriate assistance provided to the Applicant by the Industrial Court of Queensland |
LEGISLATION: | Federal Court of Australia Act 1976, s 23 and s 28 Federal Court Rules 2011, r 1.32, r 36.73 and r 39.05 Industrial Relations Act 1999, s 280 and s 334 Industrial Relations Act 2016, s 484, s 485, s 544, s 1023, s 1024 and sch 5 Industrial Relations (Tribunals) Rules 2011, r 68 Workers' Compensation and Rehabilitation Act 2003, s 32, s 561, s 562 and s 563 |
CASES: | Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424 DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 Kelsey v Logan City Council & Ors (No 4) [2023] ICQ 23 Miles v Q-Comp [2013] QIRC 133 Turay v Workers' Compensation Regulator (No 2) [2023] ICQ 019 Workers' Compensation Regulator v Glass [2020] QCA 133; (2020) 4 QR 693 Wren v Simon Blackwood (Workers' Compensation Regulator) [2013] QIRC 169 |
COUNSEL: | The Applicant represented himself. Mr S. Gray, Counsel directly instructed by the Workers' Compensation Regulator. |
Introduction
- [1]On 10 October 2022, Mr Jonathan Wren ('the Applicant') filed an application seeking an order that his appeal to this Court, made on 3 December 2013 in Matter No. C/2013/48, '… be recommenced' ('the Applicant's present application').
- [2]The Applicant's appeal in Matter No. C/2013/48 ('the Applicant's Court appeal') was, on 9 January 2014, allowed by the Court to be discontinued. That followed the Applicant's written request in the approved form, filed on 8 January 2014, that the appeal be discontinued.
- [3]The Applicant's Court appeal was against a decision of the Queensland Industrial Relations Commission dated 12 November 2013 in Wren v Simon Blackwood (Workers' Compensation Regulator) ('the Primary Decision').[1] The Primary Decision concerned the Applicant's appeal to the Commission ('the Applicant's Commission appeal') against a review decision of the Workers' Compensation Regulator made under the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act'). That review decision confirmed an earlier decision of WorkCover Queensland to reject an application the Applicant had made for workers' compensation.
- [4]By Directions Order dated 24 October 2022, Vice President O'Connor directed the parties to file and serve written submissions as to the question of whether or not the Court has jurisdiction to allow the Applicant to re-enliven his appeal. The Vice President also directed that the Applicant's present application be determined on the papers.
- [5]The parties filed and served such submissions.
- [6]Because Vice President O'Connor held a conference on 5 March 2013 concerning the Applicant's Commission appeal, the Applicant's present application was allocated to me for determination. After having considered the parties' submissions and the matter generally, I ordered that the Applicant's present application be mentioned on 3 November 2023. On that date I drew the parties' attention to the decision of the Full Court of the Federal Court of Australia[2] in Chen v Monash University ('Chen')[3] and to s 544 of the Industrial Relations Act 2016 ('the 2016 IR Act') and the equivalent provision (s 334) in the Industrial Relations Act 1999 ('the 1999 IR Act').
- [7]By further Directions Orders dated 3 and 24 November 2023, I directed the parties to file submissions dealing with:
- whether, in light of Chen, s 334 of the 1999 IR Act or s 544 of the 2016 IR Act conferred power on the Court to allow the Applicant to reinstate his Court appeal; and, if so,
- whether the Court should do so having regard to the circumstances of the Applicant discontinuing his appeal, the prospects of the Applicant's Court appeal having regard to his grounds of appeal, and any other relevant circumstances.
- [8]I also directed that unless otherwise ordered, the Applicant's present application be determined on the papers.
- [9]Both parties have filed and served further written submissions as directed. The Applicant has represented himself in all proceedings before the Commission and before the Court.
- [10]For the reasons that follow, assuming, without deciding, that the Court does have power to allow the Applicant to reinstate his discontinued appeal, the facts of this case are not such that the power should be exercised in the Applicant's favour.
- [11]Consequently, the Applicant's present application must be dismissed.
Background
- [12]Part of the background to this matter is conveniently summarised in the Respondent's principal submissions, namely:[4]
- The applicant initiated an appeal to the Queensland Industrial Relations Commission against a decision by the respondent confirming a decision by WorkCover rejecting his application for compensation.
- By decision published on 12 November 2013, the applicant's appeal was dismissed.
- On 3 December 2013, the applicant filed an application to appeal in the industrial court pursuant to s. 561 of the Workers' Compensation and Rehabilitation Act 2003 ("WCR Act").
- The application to appeal was mentioned before Vice President Linnane on 8 January 2014. During that mention, a hearing date for the appeal to be heard before President Martin was set down for 2:15 PM on 26 February 2014.
- Directions were also issued for submissions by the parties in accordance with the usual practice of the Court.
- After those directions were made, the applicant raised issues about wanting to adduce additional evidence. The applicant was told that he would have to make an application and that there was currently no such application before the court.
- Further discussions than ensued between the Vice President and the applicant about the difficulties that he would confront in attempting to adduce fresh evidence and proving perjury.
- On 8 January 2014 the applicant signed a request to discontinue, form 27, which he sent by email to the registry on 8 January 2014. The applicant sent the signed request without the respondent signifying consent.
- [13]On 9 January 2014, r 68 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') provided:
68 Discontinuance of applications other than under Act, s 74
- (1)This rule applies to an application before the court, commission or registrar, other than an application for reinstatement under section 74(1) of the Act.
Note–
For applications under section 74(1) of the Act, see rule 153.
- (2)The applicant may ask to be allowed to discontinue the proceeding by filing a written request in the approved form.
- (3)When filing the request, the applicant must serve a copy of the request on each of the other parties to the application.
- (4)A party may object to the discontinuance by notice to the registrar within 14 days after being served with the request to discontinue.
- (5)If no party objects within the 14 days, the court, commission or registrar may allow the proceeding to be discontinued.
- (6)If a proceeding is allowed to be discontinued, the court, commission or registrar must note the file to that effect.
- (7)If a party objects to the discontinuance under subrule (4), the court, commission or registrar may allow or disallow the request for discontinuance on the terms the court, commission or registrar considers appropriate.
- [14]I have viewed the file for the Applicant's Court appeal (Matter No. C/2013/48). Additionally, at the mention on 3 November 2023, I gave the parties the opportunity to view the file for the Applicant's Court appeal.
- [15]The file shows that:
- the Applicant filed a written request to discontinue his Court appeal on 8 January 2014, with such request placed in the Court file for Matter No. C/2013/48;
- on 9 January 2014, the Respondent emailed the Industrial Registry advising that it consented to the Applicant's written request to discontinue his Court appeal; and
- Vice President Linnane allowed the Applicant's written request to discontinue his Court appeal by her Honour signing a stamp affixed to the Applicant's request, which provided that the withdrawal had been approved by her Honour on 9 January 2014.
The Applicant's principal submissions
- [16]The Applicant, in his principal written submissions, relevantly contends that the Court has jurisdiction to, effectively, reinstate his appeal because it has jurisdiction to deal with the following:
- Miscarriage of Justice by QIRC
- False testimony of Witnesses in QIRC hearing
- Refusal of Commissioner Fisher to hear evidence
- Refusal of Commissioner Fisher to make findings in accordance with evidence
- Commissioner Fisher making findings against evidence with no explanation
- Withholding of evidence by Workcover QLD and Opus (employer) from hearing
- Potential fraudulent legal documents being provided by Leighton Holdings
- Hearing De-Novo with no statement of facts required – leading to decision being obtained by surprise or fraud and failure of QIRC to accept evidence in relation to character of Q-COMP in relations to matters.
- Bias of QIRC and Industrial Court of Queensland and
- Statement on QIRC website in regards to costs of parties
- Q-Comp being allowed legal representation – QIRC Vice President Linnane failed to provide due process under the act, failed to act in accordance with act, grossly prejudiced justice in the matter by potentially allowing costs against Appellant (myself)
- Conduct of (at the time) Deputy President O'Connor in relations to Conference for the QIRC appeal showing prejudice against Appellant (myself).
- QIRC Decision of Commissioner Fisher shows gross bias against Appellant (myself).
- Actions of Court in Mention before Vice President Linnane in first having same person setting out both QIRC hearing and the appeal of the QIRC decision
- Actions of Court in Mention before Vice President Linnane in refusing to allow additional evidence rather than following due process in deciding whether and what additional evidence should be allowed, noting that the application made claimed that a miscarriage of justice had occurred and that Q-COMP had relied upon witnesses giving false testimony. Furthermore Vice President Linnane's conduct would carry the assumption that the court will not make orders to obtain the required additional evidence.
- [17]In respect of paragraph 5F above, the Applicant referred only to particular parts of the transcript of the mention of his appeal before Vice President Linnane on 8 January 2014.
- [18]
APPELLANT: Sorry, sorry, sorry, your Honour. Yes, can I add additional evidence, I guess what - - -
THE VICE PRESIDENT: No.
APPELLANT: No. Okay.
THE VICE PRESIDENT: Why are you wanting to produce additional evidence, you have to make an application for that and there’s been no application to produce additional evidence.
APPELLANT: I guess my concern is that they’ve misled the court so I guess I'm trying to provide the evidence that shows they’ve misled it.
THE VICE PRESIDENT: Misled the court, what in?
APPELLANT: I guess that they’ve provided false testimony.
THE VICE PRESIDENT: Who?
APPELLANT: Q-COMP’s witnesses.
THE VICE PRESIDENT: Is it dealt with in the decision?
APPELLANT: No it’s not, no.
THE VICE PRESIDENT: I think – sorry, Q-COMP’s - - -
APPELLANT: Their witnesses, yes.
THE VICE PRESIDENT: Their witnesses.
APPELLANT: Yes.
THE VICE PRESIDENT: Yes. You have to make an application. I doubt very much – it’s very rare that you’re allowed to produce additional evidence in an appeal.
APPELLANT: Yes, yes, yes. I guess the other issues is that for, for instance, the major stress of the Commissioner has I guess found that although there was no actual testimony or evidence against it that she hasn’t seen any evidence for it so she’s rejected it. Yes, yes.
THE VICE PRESIDENT: Yes, you can argue the decision that there are – that the member of the Commission erred - - -
APPELLANT: Yes, yes, yes.
THE VICE PRESIDENT: - - - in doing certain things in term of the decision.
APPELLANT: Yes.
THE VICE PRESIDENT: But that’s not – if you’re saying that somebody gave false evidence that’s a very difficult thing to prove.
APPELLANT: Yes.
THE VICE PRESIDENT: And it’s a very difficult – it’s – once you make that kind of allegation you’ve got a terrible onus on you to prove it.
APPELLANT: Yes, yes, yes.
THE VICE PRESIDENT: An extremely heavy onus.
APPELLANT: Yes.
THE VICE PRESIDENT: So I’d be very careful in suggesting somebody lied under oath.
APPELLANT: Yes.
THE VICE PRESIDENT: But you certainly can attack the decision - - -
APPELLANT: Yes.
THE VICE PRESIDENT: - - - in saying that the Commissioner gave too much weight to something or not enough weight to something or other or and erred in not finding this and that but that’s a different thing to adducing evidence that somebody lied under oath.
APPELLANT: Yes, yes. I guess my other concern is with some of the points she’s brought up there’s evidence which exists which would I guess dispute them but if I can’t bring it’s - - -
THE VICE PRESIDENT: Well, you can – what you need to do is you need to say the Commissioner found x.
APPELLANT: Yes, yes.
THE VICE PRESIDENT: She or he relied upon these things.
APPELLANT: Yes.
THE VICE PRESIDENT: There was this evidence and you need to have transcript references and all that - - -
APPELLANT: Yes, yes.
THE VICE PRESIDENT: - - - to where the other evidence was that wasn’t taken into consideration or didn’t appear to be taken into consideration.
APPELLANT: Yes, it’s a problem that it wasn’t brought before the court because I didn’t know what her decision would be. Some of her decisions I guess seem to have come out of the blue.
THE VICE PRESIDENT: Well, there is only one decision. You had an opportunity to put evidence before the Commission. The other side had evidence to refute that.
APPELLANT: Yes.
THE VICE PRESIDENT: Now, there’s only the evidence that’s before the Commission that’s important because the Commissioner can only rely upon the evidence that’s before them. So all you can say is the Commissioner found this – each different thing if you say there’s a number of issues where the Commissioner found something you dispute that because there was this alternative evidence available to the Commissioner and try and get the President to look at the other evidence that was available to the Commission. So that’s – the appeals are – there’s generally no evidence adduced in appeals. It’s simply determined on the evidence that is the documentary evidence and the oral evidence that was before the Commissioner.[6]
APPELLANT: Yes.
THE VICE PRESIDENT: Okay. So that’s what – and if you’re saying that the Commissioner erred in this respect because he or she failed to take into account all this evidence then you need to have the transcript references - - -
APPELLANT: Yes.
THE VICE PRESIDENT: - - - of what the evidence was and it’s no good – you need to have the exact words that were used, not your version of what was used.
APPELLANT: Yes, yes, yes.
THE VICE PRESIDENT: So you say on page 16 line 24 of the transcript this evidence was given.
APPELLANT: I’m just a bit worried because I guess like I said – I guess with, for instance, the major stressor which was found to be a complete fantasy, I’ve got photographs showing that it isn’t.
THE VICE PRESIDENT: Yes, were the photographs in the evidence?
APPELLANT: No, they aren’t. That’s the problem.
THE VICE PRESIDENT: Well, see that’s - - -
APPELLANT: Yes.
THE VICE PRESIDENT: That’s your problem.
APPELLANT: Yes.
THE VICE PRESIDENT: And had have – I mean, I don’t know the case so I'm just telling you that’s - - -
APPELLANT: Yes, yes.
THE VICE PRESIDENT: I mean, running an appeal is quite different to running a
case here.
APPELLANT: Yes, yes.
THE VICE PRESIDENT: Quite different so you’re going to have to do it on the basis of the evidence that was before the Commissioner.
APPELLANT: Okay. Yes.
THE VICE PRESIDENT: Okay.
APPELLANT: I guess the question would then be I don’t know if I can do that. If I want to back out of this I guess, yes.[7]
THE VICE PRESIDENT: Well, I think - - -
APPELLANT: Have a look over it and then, yes.
THE VICE PRESIDENT: If you want to discontinue then you need to – there was a note on the bottom of the directions order that you were given.
APPELLANT: Yes, yes.
THE VICE PRESIDENT: You had 10 days to withdraw.
APPELLANT: Yes, yes.
THE VICE PRESIDENT: You’d want to do it fairly quickly before Q-COMP - - -
APPELLANT: Yes.
THE VICE PRESIDENT: Before the regulator starts to do anything further.
APPELLANT: Yes, no worries, yes, yes.
THE VICE PRESIDENT: Okay.
APPELLANT: Yes.
THE VICE PRESIDENT: Because once they start to incur costs which - - -
APPELLANT: Yes.
THE VICE PRESIDENT: - - - they will already have by today by getting Mr Gray to forego some other matter he’s got listed for that day in order to do the appeal so he will have – there will be costs associated as of today.
APPELLANT: Yes.
THE VICE PRESIDENT: Okay. So I would suggest you make a decision on that very quickly.
APPELLANT: Yes [indistinct].
THE VICE PRESIDENT: Okay. On that basis I adjourn. Thank you.
- [19]When the Applicant commenced his Court appeal in 2013:
- s 561(1) of the WCR Act provided that a party aggrieved by a relevant decision of the Commission may appeal to the Court; and
- s 561(2) of the WCR Act provided that the 1999 IR Act applied to the appeal.
- [20]In my view, that reference to the 1999 IR Act in s 561(2) of the WCR Act effectively picked up the powers and procedures bestowed on this Court under the 1999 IR Act.[8]
- [21]Section 561(2) of the WCR Act presently refers to the 2016 IR Act.
- [22]
- [23]The Applicant, in making his principal submissions that Vice President Linnane made it clear that additional evidence would not be allowed and that the appeal was then terminated based upon error of the Court, did not refer to all of the transcript of the mention of 8 January 2014 re-produced above in these reasons. Further, the Applicant did not refer to the fact that he requested that his appeal be discontinued by formally filing such a request on 8 January 2014.
The Respondent's principal submissions
- [24]In summary, the Respondent submitted that:
- the 1999 IR Act, upon the enactment of the 2016 IR Act, was repealed, but that the effect of the transitional provisions in the 2016 IR Act was that the 1999 IR Act still applied to the Applicant's present application, despite the discontinuance of his Court appeal in 2014;
- the Court has no express power under the WCR Act to re-enliven the Applicant's discontinued appeal and such a power is not a necessary incident to the Court's power to hear appeals under s 562 of the WCR Act;
- the Court had no express power under the 1999 IR Act, and has no express power under the 2016 IR Act, to re-enliven the Applicant's discontinued appeal;
- the matters referred to in paragraphs 4 A to G and 5 A to E of the Applicant's principal submissions are either irrelevant, wrong, unintelligible or without foundation; and
- as to paragraph 5 F of the Applicant's principal submissions:
- –the mention before Vice President Linnane was a procedural mention setting out a timetable for the hearing of the Applicant's Court appeal;
- –as observed by her Honour, there was no application before the Court to allow additional evidence to be adduced in the Applicant's Court appeal;
- –the Applicant was frankly told about the problems he confronted about trying to lead new evidence; and
- –no decision was made capable of producing any appeal rights for the Applicant.
Does the Court have power to allow the Applicant to reinstate his discontinued appeal?
- [25]In general terms, once an order disposing of a proceeding has been perfected by being drawn up as a record of a court, that proceeding, apart from any specific and relevant statutory provision, is at an end in that court and is, in its substance, beyond the recall of the Court; and it would not promote the due administration of the law or the promotion of justice, for a court to have power to reinstate a proceeding which has been finally disposed.[11]
- [26]As the Respondent has submitted, the Rules did not provide that, by the Court's allowance of a request to discontinue a proceeding, such allowance had the effect of an order of the Court dismissing the appeal.[12] Further, as also submitted by the Respondent, the Court's allowance, under the Rules, of a request to discontinue a proceeding does not meet any of the descriptions of a 'decision' as defined in sch 5 to the 2016 IR Act.[13]
- [27]However, for the reasons given in paragraphs [13]-[15], on 9 January 2014, the Applicant's Court appeal was allowed to be discontinued by the Court following his written request, in the approved form, that it be discontinued.
- [28]The question is whether the Court has the power to allow the Applicant to reinstate his discontinued appeal.
The Workers' Compensation and Rehabilitation Act 2003
- [29]In 2013, the Court's jurisdiction, pursuant to ch 13, pt 3, div 1A of the WCR Act, was to (relevantly) decide appeals against certain decisions of the Commission. The power conferred on the Court was to confirm the decision of the Commission, to vary the decision of the Commission or to set aside the decision of the Commission and substitute another decision.[14]
- [30]There is no express power in ch 13, pt 3, div 1A of the WCR Act for the Court to allow an appellant to reinstate an appeal that the appellant was allowed to discontinue.
The Industrial Relations Act 2016
- [31]The Respondent, in its principal submissions, contended that the 1999 IR Act continued to apply to the Applicant's present application because of s 1023 and s 1024 of the 2016 IR Act.
- [32]Those sections provide:
1023 Existing proceedings
- (1)This section applies if–
- (a)before the commencement, a person started a proceeding under the repealed Act; and
- (b)immediately before the commencement, the proceeding had not ended.
- (2)The repealed Act continues to apply to the proceeding, and the proceeding must be heard and decided, as if the Industrial Relations Act 2016 had not commenced.
1024 Proceedings not yet started
- (1)This section applies if–
- (a)immediately before the commencement, a person could, under the repealed Act, have started a proceeding within a particular period; and
- (b)on the commencement, the person has not started the proceeding.
- (2)The Industrial Relations Act 2016 does not apply to the proceeding.
- (3)The person may, within the period mentioned in paragraph (1)(a), start the proceeding under the repealed Act, and the proceeding must be heard and decided, as if the Industrial Relations Act 2016 had not commenced.
- [33]The '… repealed Act' referred to in these provisions is the 1999 IR Act.[15] I am not persuaded that these transitional provisions mean that the 1999 IR Act applies to the Applicant's present application. This is because the Applicant's Court appeal, made in 2013, was not a proceeding started under the 1999 IR Act. It was a proceeding started under the WCR Act.[16]
- [34]In any event, there is no express power contained in the 1999 IR Act or the 2016 IR Act that confers power on the Court to allow an appellant to reinstate an appeal the appellant was allowed, by the Court, to be discontinued.
- [35]However, it was in response to the Respondent's principal submission, that there is no express power for the Court to allow a discontinued appeal to be re-instated, that I referred the parties to the decision in Chen and directed that they make further submissions about the matters set out in the Directions Orders dated 3 and 24 November 2023.
- [36]In Chen, the relevant question was whether the Federal Court of Australia had power to reinstate an appeal that was discontinued by the applicant. The appeal was from orders of the primary judge dismissing the applicant's claims of sex discrimination and sexual harassment. The applicant stated that she discontinued her appeal because of threats to her safety.[17]
- [37]The Court considered whether a power, to reinstate the applicant's appeal, arose under r 1.32 or r 39.05 of the Federal Court Rules 2011 ('the FC Rules'), under s 23 or s 28 of the Federal Court of Australia Act 1976 (Cth) ('the FCA Act'), or by virtue of an implied power.[18]
- [38]
- [39]Section 23 of the FCA Act provides:
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
- [40]The Court found that s 23 of the FCA Act was about power not jurisdiction[22] and after considering a number of relevant authorities stated:
- [40]The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.
- [41]We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes.
- [42]It follows that we do not consider that the Court is possessed of an implied or express power simply to reinstate a discontinued appeal in “the interests of justice”.
- [43]The Court in Christodoulou appears to have come to a similar conclusion so far as the existence of an implied power to reinstate an appeal is concerned. While inexactly referring to the Court’s jurisdiction as an “inherent” one, and while referring to English precedent drawn from common law courts, the Court nonetheless considered that an implied power, as we would understand it, exists to reinstate an appeal.
- [44]In other respects, however, we do not think that it assists to ask, as it was in Christodoulou, whether the filing of the notice of discontinuance in a given case was a “nullity” by reference to decisions of English courts expounding on the inherent jurisdiction of English common law courts. We do, however, consider that some guidance may be drawn from those English decisions so far as the making out of abuse of process is concerned, as explained below.
- [45]We should add that we do not consider that a number of first instance decisions of this Court, referred to in Christodoulou, take the question any further, each mostly accepting for the purposes of argument that there exists a power to reinstate an appeal that may or may not permit consideration of “the interests of justice”.
- [46]While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
- [47]In those circumstances, we do not consider it is helpful to say that the Court has a general power to reinstate an appeal “in the interests of justice”, which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.
- [48]We also consider that the power to reinstate an appeal is discretionary in nature so that, when enlivened, the prospects of success of the proposed appeal may also be taken into account in its final exercise, as held in Christodoulou.[23]
- [41]Some of the elements of s 23 of the FCA Act bear some resemblance to s 544(1)(a)(i) and s 544(1)(c) of the 2016 IR Act.
- [42]Section 544 of the 2016 IR Act provides:
544 Decisions of court or commission
- (1)In the exercise of its jurisdiction, the court or commission may–
- (a)make the decisions it considers necessary–
- (i)in the interests of justice in proceedings before it; and
- (i)for the execution of another decision of the court or commission; and
- (b)enforce its own decisions; and
- (c)direct the issue of a writ or process; and
- (d)impose and enforce a penalty allowed or prescribed by this Act or another Act in the same way a Supreme Court judgment is enforced.
- (2)A decision of the court or commission must be made and enforced in the same way as a judgment or order of the Supreme Court.
- (3)For subsection (2), the Uniform Civil Procedures Rules must be complied with to the extent reasonably possible, with the amendments the court or commission approves.
- (4)The registrar, deputy registrars, sheriff, bailiffs and officers of the Supreme Court or Magistrates Courts (court officers) are taken to be officers of the court and commission for–
- (a)a decision, including the enforcement of a decision, of the court or commission; and
- (b)imposing functions or conferring powers on court officers under the rules.
- [43]In his further submissions, about whether, in light of the decision in Chen, s 334 of the 1999 IR Act or s 544 of the 2016 IR Act conferred power on the Court to allow him to reinstate his discontinued appeal, the Applicant relevantly submitted:
- because of s 1023 and s 1024 of the 2016 IR Act, the 1999 IR Act applied to his present application; and
- s 334(1)(a)(i) of the 1999 IR Act,[24] provides that in the exercise of its jurisdiction, the Court may make decisions it considers necessary for doing complete justice in proceedings before it and, due to its similarities with s 23 of the FCA Act, and in light of the decision in Chen, the Court should be able to reinstate a discontinued appeal '… in the interests of justice.'
- [44]The Respondent submitted that:
- on the authority of Turay v Workers' Compensation Regulator (No 2) ('Turay'),[25] the Court has no power to recommence the Applicant's discontinued Court appeal;
- s 334 of the 1999 IR Act and s 544 of the 2016 IR Act – to the extent they allow the Court, in the exercise of its jurisdiction, to make the decisions it considers necessary in the interests of justice in proceedings before it – are analogous to r 1.32 of the FC Rules; and
- in Chen[26] the Federal Court determined that r 1.32 of the FC Rules did not supply jurisdiction to allow the Court to set aside a notice of discontinuance.
- [45]In Turay, the President determined that the Court has no express or implied power, under the 2016 IR Act and under the WCR Act, to re-open an appeal made to it, which had been heard, determined and dismissed. In this regard, his Honour stated:[27]
[61] This Court does not have express power to reopen the appeal and there is nothing to suggest that it has an implied power. All the indications are to the contrary.
[62] In particular:
- 1.there is no express power to reopen;
- 2.there is a limited power to correct error;
- 3.while not bestowing an express power upon the Court to reopen an appeal to it, the legislature bestowed such a power on the QIRC, and by inference indicated a legislative intent that the Court has no such power;
- 4.the powers of the Industrial Court on appeal are specifically limited to confirming the decision, varying the decision or setting aside the decision and substituting another decision;
- 5.section 561(4) of the WCR Act specifically provides that this Court’s decision is final.
- [46]I will not express a concluded view about whether s 544(1)(a)(i) of the IR Act confers power on the Court to allow an appellant to reinstate a discontinued appeal.[28] This is for two reasons.
- [47]First, the Applicant's submissions were at a high degree of generality and I have not had the benefit of full argument about the matter.
- [48]Secondly, assuming (without deciding) that such an express power does exist, namely, to decide that it is necessary, in the interests of justice, to allow an applicant to reinstate a discontinued appeal, then having regard to the relevant facts and circumstances of the Applicant's present application, I would not exercise any such power in his favour.
- [49]Further, neither party, in any detail, dealt with the question of whether the Court has an implied power, under the 2016 IR Act or under the WCR Act, to allow an applicant to reinstate an appeal an applicant had been allowed to discontinue.
- [50]In DJL v The Central Authority,[29] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ relevantly held:
A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred". It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.[30]
- [51]Again, in the absence of full argument, and for the reasons that I give below about the relevant facts and circumstances of the Applicant's present application, I will not determine if there is an implied power of the Court to allow an applicant to reinstate an appeal that the applicant has been allowed to discontinue.
Assuming the Court does have power to allow the Applicant to reinstate his discontinued appeal, no such decision should be made in the Applicant's favour
- [52]In Chen, the matters taken into account by the Court, in determining to reject the applicant's application to reinstate her discontinued appeal, were:
- the events leading up to the filing of the application to reinstate;[31]
- the events referred to in the application to reinstate;[32]
- the events after the filing of the reinstatement application;[33]
- the reasons the notice of discontinuance was filed;[34] and
- the prospects of the applicant's appeal.[35]
- [53]In my view, matters the same or similar to these provide a sound guide in respect of whether or not the Court would exercise its (assumed) power to reinstate the Applicant's discontinued appeal.
- [54]For the reasons that follow, assuming, without deciding, that the Court does have discretionary power to reinstate the Applicant's discontinued appeal, I would not exercise that discretion in the Applicant's favour.
The events leading up to the Applicant's present application
- [55]The principal basis of the Applicant's present application is the conduct he attributes to Vice President Linnane at the mention of his appeal on 8 January 2014. In my view, on the material before me, the Applicant was provided with appropriate assistance by Vice President Linnane and her Honour, contrary to the Applicant's assertions, did not engage in any improper or inappropriate conduct which induced the Applicant to discontinue his Court appeal.
- [56]As referred to earlier, in his principal submissions, the Applicant submitted that at the mention of his appeal before Vice President Linnane on 8 January 2014:
- her Honour refused to allow him to rely on additional evidence;
- her Honour did not follow due process in deciding whether additional evidence should be allowed and what it may be; and
- her Honour's conduct carried '… the assumption' that the Court would not make orders to obtain the required additional evidence.
- [57]Further, the Applicant, in light of only the underlined passages of the transcript reproduced earlier in these reasons, submitted:
- A mentions hearing was conducted by Vice President Linnane on 8 January 2014.
- The court can order additional evidence be heard under S561(3) of the Workers' Compensation and Rehabilitation Act which states:
- (3)The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
- Vice President Linnane was questioned in relation to the ability to call additional evidence and made it clear that this wasn't going to happen. The conversation in regards to this goes from P3 L37 to P8 L17 … Some of the conversation is as follows:
…
- Therefore the appeal was terminated based upon Vice President Linnane making clear additional evidence would not be allowed without any due process to assess whether or not additional evidence should be allowed and if so what. It is claimed this constitutes a jurisdictional error due to her failing to observe a requirement of procedural fairness. Therefore the appeal was terminated based upon error of the court.
- [58]In his further submissions, the Applicant submitted:
- the Court should allow him to reinstate his discontinued appeal:
[G]iven the discontinuance was obtained via fraud (including the other party obtaining the decision through considerable false testimony) and considerably [sic] bias shown by various members of the court including refusing to allow the applicant their rights under the law; and
- Vice President Linnane threatened him with costs for the appeal '… despite s 561(1)[36] of the Workers Compensation and Rehabilitation Act 2013 prohibiting such, short of the appeal being made vexatiously or without reasonable cause.'
- [59]As mentioned, the Applicant, in his principal submissions, only reproduced parts of the transcript of the mention before Vice President Linnane on 8 January 2014.
- [60]
- [55]In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person:
- (a)Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod at [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR at [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Company Pty Ltd (in liq) (2014) 46 VR 283.
- (b)Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson at 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15 at [47].
- (c)Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.
- [56]The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: Hamod at [312]; Bhagwanani v Martin [1999] SASC 406; (1999) 204 LSJS 449 at [23]; Clark v New South Wales (No 2) [2006] NSWSC 914 at [13]. Nor does the duty of the Court require it to view a litigant-in-person’s case with a favourable eye. As stated by the High Court in Northern Territory v Sangare (2019) 265 CLR 164 at [27], albeit in the context of a determination on costs, “unmeritorious litigation is no less unmeritorious because it is pursued by a person who is … a litigant-in-person”.
- [57]It seems to be well accepted that the extent of the Court’s obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon “the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”: Abram v Bank of New Zealand [1996] ATPR 41-507 at 42,347.
- [61]In my view, Vice President Linnane, at the mention of the Applicant's appeal before her Honour on 8 January 2014, provided appropriate assistance to the Applicant in a manner consistent with the principles set out in Flightdeck in paragraphs [55](a) and [56] of the judgment.
- [62]There are three reasons for this.
- [63]First, a reading of the full transcript reveals that, contrary to the Applicant's submissions:
- Vice President Linnane did not make it clear the Applicant could not lead new evidence at the appeal, but in fact pointed out that the Applicant had not made an application to lead new evidence;[39] and
- Vice President Linnane provided appropriate assistance to the Applicant by stating:
- –that he would have to make an application to lead new evidence and that it was very rare that additional evidence be allowed to be produced in an appeal;[40]
- –how the Applicant could challenge the Primary Decision;[41]
- –the difficulties the Applicant would have in applying to lead new evidence on appeal;[42]
- –the difficulties the Applicant would have in demonstrating that witnesses before the Commission lied under oath;[43] and
- –the possible cost consequences for him, if he chose not to discontinue his appeal in a timely manner, after he asked Vice President Linnane about discontinuing the appeal.[44]
- [64]Secondly, Vice President Linnane did not terminate the Applicant's appeal. The Applicant made the deliberate decision to request to discontinue his appeal – following the assistance given to him by Vice President Linnane at the mention on 8 January 2014 – by filing the request to discontinue his appeal. There was no denial of procedural fairness to the Applicant because Vice President Linnane made no decision that the Applicant could not lead additional evidence on his appeal. The proceeding before Vice President Linnane on 8 January 2014 was not the hearing of the Applicant's appeal. It was a mention of the Applicant's Court appeal. The appeal was to be heard before the President of the Court (Justice Martin) on 26 February 2014.[45] It would have been at that time that an application by the Applicant, to lead additional evidence, if such an application had been made, would have been heard.
- [65]Thirdly, the transcript does not reveal any evidence of any considerable bias against him, as alleged by the Applicant, on the part of Vice President Linnane. Similarly, the transcript discloses no evidence for the serious allegation made by the Applicant that the request for discontinuance he filed was obtained by fraud.
- [66]The transcript discloses that Vice President Linnane set out for the Applicant the procedural and legal issues that faced him in light of:
- the way the Applicant wished to proceed with his appeal, namely:
- –leading additional evidence in circumstances where no application had been made by the Applicant to lead additional evidence;[46] and
- –that the Applicant wanted to lead the additional evidence of photographs that he did not lead in his evidence before the Commission;[47] and
- the particular grounds of appeal that he wished to pursue, namely:
- –that the witnesses called by the Respondent before the Commission provided false testimony;[48] and
- –that there were alleged errors of fact.[49]
- [67]For the reasons given earlier, Vice President Linnane did not decide that the Applicant could not lead additional evidence on appeal. Again, this was because:
- the proceeding before her Honour was a mention;
- no application had been made by the Applicant to lead additional evidence on appeal; and
- any such application could only have been determined by the President of the Court who was scheduled to hear and determine his appeal.
- [68]For the reasons given immediately above, Vice President Linnane was merely setting out the procedural issues that faced the Applicant in respect of his desire to lead additional evidence on the appeal before the Court. This is not evidence of any bias being demonstrated by Vice President Linnane against the Applicant.
- [69]In respect of the circumstances that led to the Applicant requesting to discontinue his appeal, to the extent that he submits this was fraudulently induced by Vice President Linnane, the transcript reveals that after Vice President Linnane explained the procedural and legal issues referred to immediately above, and after her Honour explained that running an appeal before the Court was quite different to running a hearing before the Commission,[50] it was the Applicant, of his own volition, who stated that he did not know if he could run such an appeal.[51] The Applicant then raised the question of him backing out of the appeal.[52]
- [70]It was at that point that Vice President Linnane referred the Applicant to how he may discontinue his appeal and, if he was going to take that course, why he should do that quickly before the Respondent began to incur costs.[53] Having regard to the transcript, it was the Applicant who first mentioned the issue of discontinuing his appeal, not Vice President Linnane. When the Applicant did that, Vice President Linnane gave him appropriate assistance about how and when that may be done. The Applicant then filed his request to discontinue his appeal. As submitted by the Respondent, the Applicant voluntarily discontinued his appeal. I accept that submission. For the reasons I have given above, I find that to be the case.
- [71]For all these reasons, there is no substance to the allegations the Applicant makes in his present application against Vice President Linnane.
The events referred to in the Applicant's present application
- [72]In the Applicant's present application, he relevantly gave the following as the grounds for his application to reinstate his discontinued appeal:
- 2.The QIC refused to provide me with due process in accordance with the relevant legislation. This includes the inclusion of additional evidence and search and orders to produce additional evidence and threatening me with costs against the legislation.
- 3.The QIC decided that the exact same person (Vice-president Linnane) who can be seen to have at best acted against due process, however at worst criminally perverted the course of justice should be allowed to both set out the QIRC appeal and the QIC appeal in regards to the matters (whilst refusing to see any evidence that Q-Comp had provided so-called "witnesses" who had perjured themselves).
...
- 5.The court illegally refuses to hear additional evidence which aids and abets criminal perversion of the course of justice
- [73]I have dealt with these matters in assessing the submissions that have been made by the Applicant. For those same reasons, there is no substance to the Applicant's contentions that Vice President Linnane acted in a way that was contrary to law or a breach of procedural fairness.
The reason the request to discontinue was filed
- [74]For the reasons given above, the Applicant filed the request to discontinue his Court appeal of his own volition and he was not improperly induced to do so by any conduct on the part of Vice President Linnane.
The prospects of the Applicant's appeal
- [75]The Applicant was employed as an engineer by an organisation referred to in the Primary Decision as 'Opus'. The Applicant claimed he decompensated on 21 December 2010 due to workplace stressors to which he claims he was exposed in the prior six months.[54] In broad terms, the Applicant claimed his personal injury was work related:
- because of his involvement, as an employee of Opus, in the construction of the Einasleigh Bridge, of which there were six separate incidents claimed to be stressors, namely:
- –being lied to by two Opus employees to get him to work on that Bridge;
- –discovering there were major issue with the Bridge's design;
- –the highly political nature of the job;
- –conflict between the parties involved;
- –the impossibility of him doing the work required of him in the available time;
- –being sworn at by two persons on site who were not employees of Opus;
- because of his involvement, as an employee of Opus, in the demolition and construction of houses at Wadeye for the Northern Territory government, for which he was the relevant certifier and in respect of which there were three stressors, namely:
- –The demolition of a house (at Wadeye) by Leighton Contractors Pty Ltd ('Leightons') that contained asbestos;
- –being requested by the Head of Site to certify a steel frame shed which did not have an adequate wind rating; and
- –handing over houses to the Northern Territory government without the certification inspections being conducted; and
- because he was repeatedly and deliberately paid on an incorrect basis.[55]
- [76]Evidence was heard over three days from eight witnesses, including a Psychiatrist and a General Practitioner, followed by written submissions from the parties. In a sixteen page decision, Industrial Commissioner Fisher traversed the evidence about the matters and incidents referred to above. In confirming the Respondent's review decision, Industrial Commissioner Fisher concluded:
[143] This is not a case where Mr Wren is entitled to succeed because one stressor does not arise out of or in the course of reasonable management action taken in a reasonable way. In this matter the Commission has determined that the injury arose out of or in the course of reasonable management action taken in a reasonable way, and further, that many of the nominated stressors were found to have been as a result of erroneous or disturbed perception. Of those that remain, the element of Stressor 1 which concerned the conflict on the Einasleigh Bridge Project was not shown to materially impact on Mr Wren and the pay issues were minor, transitory and served to add to Mr Wren's existing stress, much of which was a result of erroneous or disturbed perception. In these circumstances the preponderance of evidence supports the conclusion that the injury is properly withdrawn from s. 32(1) because of the operation of s. 32(5) of the Act.
- [77]The Applicant's grounds of appeal are:
- That the decision of the QIRC constitutes a miscarriage of justice. Many of the findings of the commission contradict reality, in some cases contradict all the evidence/testimony given in relation to the findings, in other the findings are completely baseless. This failure of the commission to make findings which reflect reality has caused an injury that should be deemed compensatable under section 32 of the WCRA 2003 to be deemed non-compensatable.
- The sworn testimony of many of the witnesses contradict the written contemporary evidence, however the Commission appears to have failed to reconcile the differences.
- Evidence was unlawfully withheld from the hearing by the employer (Opus International Consultants) and Workcover QLD.
- [78]These grounds are broadly expressed and lack any clarity as to why the Commission, at first instance, erred in fact or in law. That is, the grounds of appeal do not:
- in respect of specific findings of fact where there was competing evidence, allege why such findings were in error;
- allege, in respect of specific findings of fact, that there was no evidence upon which such findings could have been made; and
- identify the evidence allegedly unlawfully withheld.
- [79]The Applicant, in his further submissions, does not provide any particularisation or explanation of these broad grounds.
- [80]However, in his further submissions, the Applicant does:
- in respect of the finding that he had '… imagined the problems' with the state of the Einasleigh Bridge project, submit that one named witness gave '… considerable false evidence', but the Applicant does not state what that evidence was or why it was false;
- submit that he referred certain alleged conduct of the Department of Main Roads to the Crime and Misconduct Commission, but does not state what became of that referral or how it was relevant to any specific alleged error of fact;
- submit that there was a written contract between the relevant local authority and another contractor, and other '… Quality Assurance Documents which disputes the evidence of a number of Q-Comp's witnesses sworn testimony in regards to the Einasleigh Bridge', however the Applicant goes no further to state why such evidence is contrary to the testimony of the Respondent's witnesses or how such evidence is relevant to any specific alleged error of fact; and
- submit that he has a large number of photographs that show the rock anchors were installed during his time '… on site', (presumably the Einasleigh Bridge site), but does not submit how such evidence is relevant to any specific alleged error of fact.
- [81]Further, the Applicant submitted there was conflicting evidence about when the house at Wadeye (allegedly containing asbestos) was demolished and that he now has additional evidence about asbestos being present. However, I cannot see how such evidence could impugn the decision of the Industrial Commissioner. The more relevant finding about this matter was that it was not the Applicant's role to oversee, or to be responsible for, the issues of the safe handling and disposal of asbestos. This resulted in the conclusion by the Industrial Commissioner that the issue had an insufficient connection with his employment.[56] Therefore, even if there was evidence that may tend to prove the date the house was demolished and that it contained asbestos, it was not explained by the Applicant, even in outline, how that evidence could vitiate the reason given by the Industrial Commissioner as to why this issue did not have any causal connection with his employment.[57]
- [82]For all these reasons, I conclude that the Applicant has no reasonable prospects of success on appeal.
- [83]This counts against a decision being made that it is in the interests of justice that the Applicant's Court appeal be reinstated.
The time between the date the Applicant's appeal was discontinued and his present application
- [84]In the grounds for his present application, the Applicant stated the following as the reasons for the delay between 9 January 2014, when his request to discontinue his Court appeal was allowed, and 10 October 2022 when he made his present application:
- 7.The applicant has had severe difficulty making an application to the court, due to his ongoing workplace injury - severe chronic adjustment disorder with anxiety and depression, his lack of legal aid despite his disability, and his fear of the Court, the Department of Justice, and the State of Queensland both refusing to act in accordance with the law and the UN Human Rights Act.
- [85]On 10 October 2022, the Applicant did not file, with his present application, any affidavit material that tends to prove any of these matters that he advances as a reason for the time frame between his Court appeal being allowed to be discontinued and his present application.[58]
- [86]In his further submissions, the Applicant submitted that he has tried '… just about every possible avenue to obtain justice in these matters.' The Applicant then lists the steps he has taken, which includes referring the matter to the Queensland Police Service and to various State government Ministers.
- [87]Assuming that such steps were taken by the Applicant, they do not provide a basis to conclude that a decision is necessary, in the interests of justice, that the Applicant be allowed to reinstate his appeal. This is because:
- the Applicant's request to discontinue his Court appeal was voluntary;
- the Applicant has no reasonable prospects of success in his appeal; and
- over eight years had elapsed between the date his appeal was discontinued and the date of his present application.
- [88]In any event, even if there was an acceptable explanation for the Applicant's delay, it would be unfair on the Respondent to now have to respond to an appeal when over eight years had passed between the date the Applicant voluntarily discontinued his appeal and the date of his present application. To allow that to occur would be contrary to the principle of finality, particularly when there are no compelling reasons advanced by the Applicant to reinstate his appeal.
Conclusion
- [89]Assuming, without deciding, that the Court does have power, in the interests of justice, to make a decision allowing the Applicant to reinstate his discontinued appeal, there is no meritorious reason to make such a decision.
- [90]The Applicant's present application should be dismissed.
Order
- [91]I make the following order:
The Applicant's application filed on 10 October 2022 is dismissed.
Footnotes
[1] [2013] QIRC 169 ('the Primary Decision').
[2] Barker, Davies and Markovic JJ.
[3] [2016] FCAFC 66; (2016) 244 FCR 424 ('Chen').
[4] Citations omitted.
[5] T 1-3, l 41 to T 1-8, l 18.
[6] T 1-6, ll 1-19.
[7] T 1-6, l 37 to T 1-7, l 23.
[8] See Turay v Workers' Compensation Regulator (No 2) [2023] ICQ 019, [48] ('Turay') (Davis J, President) which citied Workers' Compensation Regulator v Glass [2020] QCA 133; (2020) 4 QR 693, [13]-[15] (Sofronoff P) in respect of the present reference to the Industrial Relations Act 2016 in s 561(2) of the Workers' Compensation and Rehabilitation Act 2003.
[9] This section of the Industrial Relations Act 1999 concerned the power of the Commission to re-open proceedings and not that of the Court.
[10] These sections of the Industrial Relations Act 2016 concern the power of the Commission to re-open proceedings and not that of the Court.
[11] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 530 (Barwick CJ) and DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 ('DJL'), [32]-[38] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[12] Cf Chen (n 3), [4] in respect of r 36.73(2) of the Federal Court Rules 2011.
[13] See Miles v Q-Comp [2013] QIRC 133, [45] (Deputy President O'Connor).
[14] Worker's Compensation and Rehabilitation Act 2003, s 562(1).
[15] Industrial Relations Act 2016, sch 5 (definition of 'repealed Act').
[16] Turay (n 8) [48].
[17] Chen (n 3) [1]-[3] and [81].
[18] Chen (n 3) [26].
[19] Ibid [49]-[53].
[20] Ibid [27].
[21] Ibid [28]-[29].
[22] Ibid [31].
[23] Emphasis added.
[24]Section 334 of the Industrial Relations Act 1999 relevantly provided: 334 Extent of decisions and their execution
- (3)In the exercise of its jurisdiction, the court or commission may–
- (a)make the decisions it considers necessary for–
- (i)the execution of the decision; and
- (ii)doing complete justice in proceedings before it; and
- (b)enforce its own decisions; and
- (c)direct the issue of a writ or process; and
- (d)impose and enforce a penalty, allowed or prescribed by this or another Act, in the same way a Supreme Court judgment is enforced.
[25] Turay (n 8), [62].
[26] Chen (n 3), [50].
[27] Citations omitted.
[28] In Kelsey v Logan City Council & Ors (No 4) [2023] ICQ 23, at [42]-[43], because of its location in ch 11, pt 5, div, 5 of the Industrial Relations Act 2016, I stated that it was open to conclude that s 544 relevantly concerns the making of decisions about the execution of a decision of the Court made in the exercise of its jurisdiction.
[29] DJL (n 11).
[30] Ibid [25]. Citations omitted.
[31] Chen (n 3), [56]-[80]
[32] Chen (n 3),[81]-[94].
[33] Ibid [95]-[98].
[34] Ibid [99]-[110].
[35] Ibid [111]-[150].
[36] I assume the Applicant meant to refer to s 563(1) of the Workers Compensation and Rehabilitation Act 2003.
[37] [2020] FCAFC 138; (2020) 280 FCR 479.
[38] Markovic, Derrington and Anastassiou JJ.
[39] T 1-3, l 41 to T 1-4, l 3.
[40] T 1-4, ll 28-29.
[41] T 1-4, ll 36-41, T 1-5, ll 17-23 and T 1-6, ll 23-35.
[42] T 1-6, ll 10-19.
[43] T 1-5, ll 3-13 and T 1-5, ll 21-24.
[44] T 1-7, l 22 to T 1-8, l 14.
[45] T 1-3, ll 1-8.
[46] T 1-4, ll 1-3 and T 1-4, 10-45.
[47] T 1-6, ll 37-45.
[48] T 1-4, l 10 to T 1-5, l 13.
[49] T 1-5, ll 16-45 and T 1-6, ll 10-19.
[50] T 1-7, ll 10-16.
[51] T 1-7, l 22.
[52] T 1-7, ll 22-23.
[53] T 1-7, l 38 to T 1-8, l 14.
[54] The Primary Decision (n 1), [8].
[55] The Primary Decision (n 1), [4].
[56] The Primary Decision (n 1), [115]-[116].
[57] See Workers' Compensation and Rehabilitation Act 2003, s 32(1).
[58] This is despite the Form 2 (General Application to the Queensland Industrial Relations Commission) stating that an applicant may file an affidavit in support of the application.