Seymour v Workers' Compensation Regulator
[2017] QIRC 61
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- Unreported Judgment
- Seymour v Workers' Compensation Regulator[2017] QIRC 61
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Seymour v Workers' Compensation Regulator[2017] QIRC 61
Seymour v Workers' Compensation Regulator[2017] QIRC 61
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Seymour v Workers' Compensation Regulator [2017] QIRC 061 |
PARTIES: | Dean Alan Seymour (appellant) v Workers' Compensation Regulator (respondent) |
CASE NO: | WC/2014/361 |
PROCEEDING: | Application to dismiss |
DELIVERED ON: | 6 June 2017 |
HEARING DATE: | 6 June 2017 |
MEMBER: | Deputy President D L O'Connor |
ORDERS: | 1. The appellant's appeal is dismissed. |
CATCHWORDS: | WORKERS' COMPENSATION – APPLICATION TO DISMISS – where the appellant has not complied with a directions order – where the appellant has not taken action in his matter for more than 12 months – the appeal is dismissed. |
CASES: | Industrial Relations Act 2016, s 541(b) Industrial Relations (Tribunals) Rules 2011, r 45 Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd (1990) FCR 388 |
APPEARANCES: | G G Clark for respondent, Workers' Compensation Regulator No appearance by the appellant |
Ex Tempore Reasons for Decision
- [1]Dean Alan Seymour was employed by Arbon Property Management Pty Ltd for two weeks from 17 October 2012 to 31 October 2012 as a casual cleaner. He alleged that a work-related incident occurred whilst employed by Arbon in which he was the victim of an attempted kidnapping at the Shafston International College.
- [2]On 1 October 2014, Mr Seymour told WorkCover Queensland that on the last day of his employment, he was approached by the building manager, who told him that there had been a security breach and that she required him to surrender his management key and swipe card. At the same time, he noticed two staff members were outfitted with new two-way radio systems. Earlier in the day, it would appear that he had run into a tall American man some hours before the other staff had arrived for work. He told WorkCover that he feared for his life and had forced a young man to take him downstairs on the pretence of seeing the building manager. From there, he said he made his escape from the building and began to walk home.
- [3]About 150 metres up the road, he came across a five-man road gang who had blocked the road and footpath. He noticed that one of the road gang had the same two-way radio as two staff members at the college and believed that the road gang were in radio contact with the college. He contended there was a conspiracy to kidnap him, which involved the UFO centre and Area 51 in Arizona, the tall American man he had met earlier in the day, staff at the college and the road crew.
- [4]The sole question for determination on this application is whether I should exercise my discretion to dismiss the matter on the grounds of noncompliance. For these proceedings, relevantly, rule 45 of the Industrial Relations (Tribunals) Rules 2011 ('the rules') will apply if 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,[1] and the party fails to attend the hearing or conference.[2] Or, rule 45 will apply if a party to a proceeding receives a notice of a directions order made by the court, commission or registrar,[3] and the party again fails to comply with the order.[4] The commission may, in the appropriate circumstances, dismiss the proceeding.[5]
- [5]The regulator relies upon the chronology of events set out in the application for WC/2014/361. For convenience I set out that chronology below:
"On or about 1 October 2014, Mr Dean Seymour, the Respondent to this application and the Appellant in WC/2014/361, lodged an application for compensation with WorkCover Queensland (the Insurer) in respect of a psychological injury which he alleged was sustained in the course of his employment with Arbon Property Management Pty Ltd.
On 17 October 2017 the Insurer decide not to accept the Respondent's application for compensation as he did not sustain an injury in accordance with s 32 of the Workers [sic] Compensation and Rehabilitation Act 2003 (the Act).
On 28 October 2014 the Respondent lodged an application for review in respect of the rejection of his claim.
On 5 December 2014 the Regulator confirmed the decision of the Insurer to reject the claim in accordance with section 32(5) of the Act.
On 24 December 2014 the Respondent filed a Notice of Appeal against the Regulator's decision. …
By application dated 30 June 2015 Ms Cheryl-Lea Godfrey of the Regulator sought an order pursuant to s 556 of the Act requiring the Respondent to be examined by a Psychiatrist to determine whether he was medically fit to litigate his own appeal, to give evidence in chief, to be cross examined, to call his own witnesses and to cross examine the Regulator's witnesses. …
On 1 July 2015 a mention was held before Vice President Linnane regarding the Regulator's application to have the Respondent psychiatrically assessed. Vice President Linnane set the application to be heard on 8 July 2015. …
On 8 July 2015 an application hearing was held before Deputy President O'Connor. The Respondent failed to appear. …
By order dated 8 July 2015, Deputy President O'Connor vacated the hearing dates and ordered that the matter not be further listed until the application to have the Respondent medically examined is heard and determined. …
On 8 July 2015 the Respondent sent email correspondence to the Commission in which he stated '[we] don't believe the matter will continue in this court as years will past [sic] from this stale mate [sic]'. …
On 23 August 2016 the Registry issued a notice of listing requiring the parties to attend a mention at 10.00am on 30 August 2016. …
On 30 August 2016 a mention was held before Deputy President O'Connor. The respondent failed to appear. …"
- [6]The regulator submits that the appellant’s conduct in failing to comply with the directions orders issued by the commission communicated, and failing to attend this application evidenced an intention, not to prosecute this appeal. I agree.
- [7]It was further submitted by the regulator that in addition to rule 45 of the rules, reliance could be placed upon section 541(b) of the Industrial Relations Act 2016 ('the IR Act'). Whilst I appreciate that section 541(b) or its equivalent in the 1999 IR Act has in the past been relied upon in this jurisdiction and, indeed, such a course is supported by a number of authorities of this commission, which suggest that the provision can, indeed, be relied upon in these types of applications, I am of the view that on a proper construction of section 541 of the IR Act, the commission may only in an industrial cause dismiss the cause or refrain from hearing from further hearing or deciding the cause if the court or commission considers further proceedings by the court or commission are not necessary or desirable in the public interest.
- [8]In my view, this is not an industrial cause. An industrial cause is defined in schedule 5 of the IR Act, which makes reference back to section 9 of the Act, which defines an industrial matter by reference to schedule 1. Nothing contained within schedule 1, in my mind, assists in bringing a workers' compensation matter within the definition of "industrial cause", "industrial matter" or, for that matter, an "industrial dispute". It is, therefore, not an industrial cause, and, as a consequence, reference to or reliance upon section 541 in these sorts of circumstances is not appropriate. The appellant has failed – apart from attending a conference, and having some communication with the commission – to prosecute this matter.
- [9]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 non-compliance 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."[6]
- [10]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."[7]
- [11]Their Honours went on to further note that it does not really matter whether there have been earlier omissions to comply with the Court’s directions:
"Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent."[8]
- [12]The discretion conferred under the rules must always be exercised judicially. The discretion to dismiss this proceeding has, in my view, been enlivened. Accordingly, having regard to the history of delay, the unjustified noncompliance with the directions orders, the absence of any communications since 7 July 2015 and, in particular, his failing to attend this hearing are all appropriate grounds to exercise the discretion to dismiss the proceeding. Accordingly, I order that pursuant to rule 45 of the rules, matter WC/2014/361 be dismissed.
- [13]There will be no order as to costs.