Spencer v Workers' Compensation Regulator
[2017] QIRC 65
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- Unreported Judgment
- Spencer v Workers' Compensation Regulator[2017] QIRC 65
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Spencer v Workers' Compensation Regulator[2017] QIRC 65
Spencer v Workers' Compensation Regulator[2017] QIRC 65
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Spencer v Workers' Compensation Regulator [2017] QIRC 065 |
PARTIES: | Jera Spencer (appellant) v Workers' Compensation Regulator (respondent) |
CASE NO: | WC/2015/97 |
PROCEEDING: | Application to dismiss |
DELIVERED ON: | 19 June 2017 |
HEARING DATE: | 19 June 2017 |
MEMBER: | Deputy President D L O'Connor |
ORDERS: | 1.The appellant's appeal is dismissed. 2.The decision of the respondent dated 24 March 2015 is affirmed. 3.No order as to costs. |
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 – appeal dismissed |
CASES: | Industrial Relations (Tribunals) Rules 2011, r45 Workers' Compensation and Rehabilitation Act 2003, s 144A House v The King [1936] HCA 40; (1936) 55 CLR 499 Quinlan v Rothwell & Anor [2001] QCA 176; [2002] 1 Qd R 647 |
APPEARANCES: | G G Clark for respondent, Workers' Compensation Regulator No appearance by the appellant |
Ex Tempore Reasons for Decision
- [1]The appellant lodged an application for compensation with WorkCover in respect of a laceration injury sustained to his right little finger on 9 August 2014. At the time of his injury, the appellant was employed as a kitchenhand with Favfine Pty Ltd trading as Belle Vue Café. WorkCover conducted an investigation and determined that the application was one for acceptance. The claim was determined as "cut tendon to R little finger" and the appellant received compensation entitlements from 9 August 2014. On 22 January 2015 WorkCover terminated the appellant's weekly compensation entitlements in accordance with s 144A of the Workers' Compensation and Rehabilitation Act 2003. The appellant sought a review of that decision and on 24 March 2015 the respondent confirmed the decision of WorkCover. It was against that decision that the appellant sought appeal in this Commission.
- [2]The regulator relies upon the chronology of events set out in the application for WC/2015/97. For convenience I set out that chronology below:
"On or about 9 August 2014, Mr Jera Spencer, the Respondent to this application and the Appellant in WC/2015/97, lodged an application for compensation with WorkCover Queensland (the Insurer) in respect of a laceration injury sustained to his right little finger on 9 August 2014. …
The Insurer decided to accept Mr Spencer’s application for compensation and benefits were paid from 9 August 2014. …
In its reasons for decision dated 22 January 2015, the Insurer terminated Mr Spencer’s entitlement to weekly compensation on the basis that he no longer had an incapacity as a result of the work-related finger injury. …
On or about 4 February 2015 Mr Spencer lodged an application for review in respect of the termination of his claim. …
On 24 March 2015 the Regulator confirmed the decision of the Insurer to terminate Mr Jera’s entitlement to weekly compensation in accordance with section 144A of the Act. …
On 16 April 2015 Mr Spencer filed a Notice of Appeal against the Regulator’s decision. …
By directions order dated 20 April 2015, it was ordered that there be call over before Vice President Linnane on 30 April 2015. Mr Spencer did not attend the call over. …
By further directions order issued on 30 April 2015, it was ordered that there be a section 552A conference on 22 May 2015. …
A section 552A conference took place before Commissioner Black on 22 May 2015, at which Mr Spencer appeared by phone and the Regulator’s Appeals Officer and Mr Stuart Sapsford of counsel appeared in person. The Regulator advised that it would consider its position and advise Mr Spencer accordingly. …
The Regulator made several unsuccessful attempts to contact Mr Spencer on his mobile phone to advise that the Regulator would continue to defend the appeal. On 6 August 2015 the Regulator emailed Mr Spencer, advising that attempts had been made to contact him by phone and requesting that Mr Spencer call the Appeals Officer to discuss the status of his appeal. …
A notice of listing was issued on 27 August 2015 scheduling a call over hearing on 1 September 2015. Mr Spencer did not attend the call over. …
On 1 September 2015 Vice President Linnane issued a further directions order, setting down directions and hearing dates for the appeal. Mr Spencer failed to comply with direction 1 of the further directions order, which required him to supply to the Regulator by 4.00pm on 11 September 2015, a list of documents relevant to a matter in issues in the proceeding. …
Mr Spencer failed to comply with direction 5 of the further directions order, which required him to file in the Industrial Registry and serve on the Regulator a list of witnesses to be called at the hearing, by 4.00pm on 25 September 2015. …
Mr Spencer failed to comply with direction 6 of the further directions order, which required him to supply to the Regulator, by 4.00pm on 25 September 2015, a list of all relevant documents he wants to adduce as evidence at the hearing. …
On 6 October 2015, the Regulator sent to Mr Spencer via registered post, correspondence advising him of his failure to comply with the further directions order and requesting he advise whether he intended to proceed with his appeal. …
By email dated 15 October 2015, the Regulator advised the Commission of Mr Spencer’s non-compliance with the further directions order and requested that the matter be brought back on for mention to address Mr Spencer’s non-compliance. …
By notice dated 19 October 2015, a mention was listed for 22 October 2015. …
On 22 October 2015 there was a mention before Deputy President O'Connor. Mr Spencer did not attend. …
By order dated 22 October 2015, Deputy President O'Connor vacated the hearing listed for 24 and 25 November 2015 and adjourned the matter until a date to be fixed. …"
- [3]Rule 6 of the Industrial Relations (Tribunals) Rules 2011 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."
- [4]In my view, rule 6 recognises the obligation placed, in this instance, on the Commission and implicitly on the parties to ensure the expeditious disposition of matters in the Commission.
- [5]The jurisdiction of the Commission to dismiss a matter for non-compliance with rules is set out in rule 45. Relevantly, Rule 45 provides:
"(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
…"
- [6]In Quinlan v Rothwell & Anor, Thomas JA (de Jersey CJ and McKenzie J agreed) wrote:
"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. The present respondents, like the appellant, appear to have been content over very lengthy periods to allow the action to go to sleep."[1]
- [7]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.
- [8]The appellant has failed to comply with the directions of the Commission in respect of the following matters:
- The appellant's obligation in relation to disclosure of documents;
- Provision of a list of witnesses;
- Provision of a list of documents to be relied upon at the hearing;
- Attendance at callovers on 30 April 2015 and 1 September 2015;
- Attendance at the mention on 22 October 2015.
- [9]The appellant has taken no action to progress the matter since 22 May 2015.
- [10]The appellant's conduct does not evidence, in my view, an intention on his part to advance or prosecute his appeal.
- [11]
- [12]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 contact with the Commission since 22 May 2015 and, in particular, his failing to attend the hearing of this application are grounds to exercise the discretion to dismiss the proceeding.
- [13]Accordingly, pursuant to rule 45 of the rules, matter WC/2015/97 is dismissed.
- [14]It follows that in light of the dismissal that the decision of the respondent dated 24 March 2015 is affirmed.
- [15]I make no order as to costs.