Workers' Compensation Regulator v Gellatly
[2016] QIRC 8
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- Workers' Compensation Regulator v Gellatly[2016] QIRC 8
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Workers' Compensation Regulator v Gellatly[2016] QIRC 8
Workers' Compensation Regulator v Gellatly[2016] QIRC 8
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Workers' Compensation Regulator v Gellatly [2016] QIRC 008 |
PARTIES: | Workers' Compensation Regulator (Applicant) v Gellatly, Luke Christopher (Respondent) |
CASE NO: | B/2015/50 |
PROCEEDING: | Application for appeal WC/2015/106 to be struck out |
DELIVERED ON: | 10 December 2015 |
HEARING DATES: | 10 December 2015 |
MEMBER: | Deputy President O'Connor |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW - DECISIONS GENERALLY - APPLICATION TO DISMISS - Where the respondent failed to comply with directions in an appeal - Where the history of the appeal indicated the respondent was aware of the requirement to withdraw if the respondent had no intention of continuing the appeal - Where the respondent knew, or ought to have known, this application had been set down for hearing - Where the respondent failed to attend hearing of this application - Where, in the circumstances, the applicant applied for an order for the appeal to be "struck out" or dismissed, without costs - Whether the discretion to dismiss should be exercised. |
CASES: | Industrial Relations Act 1999, s 331(b) Industrial Relations (Tribunals) Rules 2011, r 45 Workers' Compensation and Rehabilitation Act 2003, ss 32, 552A O'Sullivan v Farrer (1989) 168 CLR 210 Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) House v The King (1936) 55 CLR 499 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209 Quinlan v Rothwell [2001] QCA 176 |
APPEARANCES: | Mr G. G. Clark, for the Workers' Compensation Regulator, the Applicant. |
Decision from the Bench
- [1]This is an application by the Workers' Compensation Regulator ("the Regulator") for an order pursuant to s 331(b) of the Industrial Relations Act 1999 ("the IR Act") that the appeal filed by Mr Luke Gellatly (WC/2015/106) be struck out because further proceedings are not in the public interest; or alternatively, an order pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 dismissing the appeal.
Relevant history
- [2]Mr Gellatly lodged an appeal (WC/2015/106) against a decision of the Regulator's Review Unit confirming the decision by Local Government Workcare ("the insurer") to reject his application for compensation for a psychological injury which he alleged was sustained in the course of his employment whilst employed by the Whitsunday Regional Council.
- [3]The affidavit of Gavin Geoffrey Clark sworn on 2 December 2015 outlines the relevant history of the application for compensation as follows:
- (a)On 7 October 2014 Mr Gellatly lodged an application for compensation with the insurer in respect of a psychological injury.
- (b)On 21 October 2014 the insurer decided not to accept Mr Gellatly's application for compensation on the basis that he did not sustain an injury in accordance with s 32 of the Workers Compensation and Rehabilitation Act 2003 ("the Act").
- (c)On 14 January 2015 Mr Gellatly lodged an application for review in respect of the rejection of his claim.
- (d)On 27 March 2015 the Review Officer confirmed the decision of the insurer to reject the claim in accordance with s 32(5) of the Act.
- (e)On 24 April 2015 Mr Gellatly filed a Notice of Appeal against the Regulator’s decision.
- (f)Pursuant to a Further Directions Order issued by Vice President Linnane on 8 May 2015, there was a section 552A conference on 29 May 2015 before Commissioner Black. Mr Gellatly and his father, Chris Gellatly, attended by phone and Mr Peter O'Neill of counsel and Ms Leanne Hedges of the Regulator attended in person. At the conference, Mr Gellatly asked that he be given one month to consider whether he wished to proceed with the hearing.
- (g)On 16 July 2015 Commissioner Black's Associate, Ms Victoria Hansen emailed the Regulator advising that she had spoken with Chris Gellatly, who indicated that Mr Gellatly wished to withdraw his appeal. Ms Hansen provided the Regulator with Chris Gellatly's mobile phone number.
- (h)On 21 July 2015 Leanne Hedges of the Regulator emailed the QIRC advising that she had spoken with Chris Gellatly who confirmed that Mr Gellatly wished to withdraw his appeal and requested that the QIRC send Mr Gellatly a Notice of Withdrawal.
- (i)On 21 July 2015 Ms Hansen emailed the Regulator advising that a withdrawal notice had been sent by post to Mr Gellatly and had also been emailed to Chris Gellatly.
- (j)On 1 September 2015 Vice President Linnane issued a Further Directions Order when no correspondence from Mr Gellatly was forthcoming.
- (k)Mr Gellatly failed to comply with Direction 5 which required him to file in the Registry and serve on the Regulator a list of the names of all witnesses to be called by him in the hearing by 25 September 2015.
- (l)Mr Gellatly failed to comply with Direction 6 which required him to list all relevant documents he wished to adduce as evidence in the hearing by 25 September 2015.
- (m)On 5 November 2015 the Regulator phoned Mr Gellatly's mobile phone and left a message asking him to return the call to discuss the withdrawal of his appeal. Mr Gellatly did not return the call.
- (n)On 6 November 2015 the Regulator phoned Mr Gellatly's mobile phone and left a message advising him that if it did not hear back from him, the Regulator would have to prepare for hearing and this may result in an adverse costs order being sought against him.
- (o)On 6 November 2015 the Regulator phoned Chris Gellatly regarding Mr Gellatly’s intentions. Chris Gellatly advised that his son was 'definitely not' proceeding to hearing. The Regulator advised that it had left messages with Mr Gellatly but did not heard back from him. Chris Gellatly advised the Regulator that 'Luke rarely answers his phone and often does not have credit'. Chris Gellatly advised that he would attempt to contact Mr Gellatly and get him to formally withdraw his appeal.
- (p)On 1 December 2015 the Regulator unsuccessfully attempted to contact Mr Gellatly by mobile phone. On the same date the Regulator contacted Chris Gellatly to enquire whether Mr Gellatly intended attending the Review Mention set down for 10.45 am on 2 December 2015. Chris Gellatly informed that Mr Gellatly had no intention of attending the Review Mention, of proceeding to hearing, or of 'adding more paperwork to the matter'.
Statutory Provisions
- [4]Section 331(b) of the IR Act provides:
"331 Decisions generally
The court or commission may, in an industrial cause -
- (a)make a decision it considers just, and include in the decision a provision it considers appropriate for preventing or settling the industrial dispute, or dealing with the industrial matter, the cause relates to, without being restricted to any specific relief claimed by the parties to the cause; or
- (b)dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
- (i)the cause is trivial; or
- (ii)further proceedings by the court or commission are not necessary or desirable in the public interest; or
- (c)order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate."
- [5]Rule 45 of the Industrial Relations (Tribunals) Rules 2011 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)."
- [6]Section 331(b)(ii) of the IR Act gives the Court and the Commission the discretion to dismiss the appeal if further proceedings are not necessary or desirable in the public interest.
- [7]In O'Sullivan v Farrer[1] Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression "in the public interest". Their Honours wrote:
"Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounce] definitely extraneous to any objects the legislature could have had in mind'."
- [8]The discretion conferred under s 331 and r 45 must be exercised judicially.
- [9]
"The burden upon a person seeking to upset the exercise of a discretion is described in the High Court decision of House v The King[3]:
'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'[4]
- [10]
"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."[7]
- [11]At the hearing of this application, Mr Gellatly failed to attend. No reasons has been provided to the Commission for his non-attendance.
- [12]In the affidavit of Mr Gavin Clark, it is deposed that he attempted to contact Mr Gellatly on his mobile phone on 5 and 6 November concerning his withdrawal of his appeal. In particular, Mr Clark left a message on Mr Gellatly's mobile phone that if he did not hear back from him, the Regulator would have to prepare for hearing and this may result in an adverse costs order being sought against him.
- [13]Mr Gellatly, in my view, has demonstrated a pattern of conduct which disregards the directions of the Commission. In doing so, he has brought upon the Commission and the Regulator delay and expense in terms of the conduct and disposition of this appeal.
- [14]Based on the material before me, I have no confidence that Mr Gellatly would proceed with his appeal in the ordinary course.
- [15]The matters which have particularly played on my mind have been the failure by Mr Gellatly to comply with the directions of the Commission, in particular, his failure to provide a list of witnesses and a list of documents he wished to adduce as evidence in the hearing; to respond to requests by the Regulator and by failing to attend the hearing before the Commission.
- [16]Mr Gellatly, in accordance with a Directions Order issued by Vice President Linnane on 8 May 2015 attended on 29 May 2015 a s 552A Conference before Commissioner Black.
- [17]The transcript of the conference (which is Exhibit GC1 to the affidavit of Mr Clark) indicates that Mr Gellatly sought and was granted one month to consider whether he wished to proceed with the hearing.
- [18]The Associate to Commissioner Black contacted the Regulator on 16 July 2015 to advise that Mr Chris Gellatly, the father of Mr Luke Gellatly had advised that his son wished to withdraw his appeal. Mr Chris Gellatly is not, according to the records of the Commission, the agent for Mr Luke Gellatly.
- [19]A notice of discontinuance was forwarded by the Regulator to Mr Luke Gellatly on 21 July 2015. The notice of discontinuance was never executed.
- [20]Since the conference before Commissioner Black on 29 May 2015, Mr Gellatly has taken no steps to prosecute his appeal.
- [21]Mr Gellatly has not responded to the strikeout application by the Regulator. Notification was sent to Mr Gellatly by the Industrial Registry of this hearing and I have also been advised by the Regulator the strikeout application and a copy of the submissions were forwarded to Mr Gellatly via registered post.
- [22]Having considered the evidence before the Commission and the submissions of the Regulator, I have formed the view that Mr Gellatly has no intention to comply with the directions of the Commission or take any step to prosecute his appeal.
- [23]Accordingly, I do not consider that it would not be in the public interest for this appeal to continue and in exercise of my discretion pursuant to s 331 of the IR Act I dismiss the proceedings.
- [24]Further, I find that Mr Gellatly has not complied with Directions 5 and 6 issued by Vice President Linnane on 1 September 2015 and also failed to attend the hearing on 10 December 2015 and also the adjourned hearing today. In those circumstance, it is appropriate to also dismiss WC/2015/106 pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011.
Costs
- [25]The applicant in these proceedings does not seek the costs of this application nor of the appeal in WC/2015/106.
Orders
- [26]I make the following orders:
- The application is granted;
- Pursuant to s 331 of the Act, I dismiss WC/2015/106 as further proceedings by the Commission are not necessary or desirable in the public interest;
- I dismiss WC/2015/106 pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011; and
- No order as to costs.
Footnotes
[1] O'Sullivan v Farrer (1989) 168 CLR 210.
[2] Burke v Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38)
[3] House v The King (1936) 55 CLR 499.
[4] Ibid.
[5] Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209.
[6] Quinlan v Rothwell [2001] QCA 176.
[7] Ibid at [29].