Smith v Workers' Compensation Regulator
[2017] QIRC 70
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- Unreported Judgment
- Smith v Workers' Compensation Regulator[2017] QIRC 70
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Smith v Workers' Compensation Regulator[2017] QIRC 70
Smith v Workers' Compensation Regulator[2017] QIRC 70
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Smith v Workers' Compensation Regulator [2017] QIRC 070 |
PARTIES: | Bradley James Colin Smith (appellant) v Workers' Compensation Regulator (respondent) |
CASE NO: | WC/2016/226 |
PROCEEDING: | Application to dismiss |
DELIVERED ON: | 22 June 2017 |
HEARING DATE: | 22 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 – appeal struck out |
CASES: | Industrial Relations (Tribunals) Rules 2011, r 6, r 45 House v The King [1936] HCA 40; (1936) 55 CLR 499 Quinlan v Rothwell & Anor [2001] QCA 176; [2002] 1 Qd R 647 |
APPEARANCES: | R Jamieson for the respondent, Workers' Compensation Regulator No appearance by the appellant |
Ex Tempore Reasons for Decision
- [1]On 22 August 2016 the Respondent received an application for review by Mr Bradley James Colin Smith, the appellant in these proceedings. WorkCover had previously considered an application by Mr French an employee of Pegasus Bloodstock. Mr French claimed that he sustained an injury on 23 February 2016 during track work at Deagon Racecourse. Mr French sustained an injury to his right knee as a result of a fall from a horse that apparently was "spooked" and reared up. In short, the appellant contends that Mr French was not injured as claimed; he did not injure his right knee at work but as a result of a motorcycle accident; that Dr Masoud issued a workers' compensation medical certificate on spurious grounds; and Mr French had a history of making claims for workers' compensation.
- [2]On 21 October 2016, the Respondent confirmed the decision of WorkCover concluding that Mr French's application for compensation was one for acceptance.
- [3]It is against that decision that the appellant appealed to this Commission.
- [4]The regulator relies upon the chronology of events set out in the application for WC/2016/226. For convenience I set out the relevant parts of that chronology below:
"On or about 29 February 2016, Mr Ian French, lodged an application for compensation with the Insurer in respect of a right knee strain which he alleged was sustained in the course of his employment on 23 February 2016.
In a statement provided to the Insurer on 29 February 2016, Mr French advised he was employed as a track work rider by Bradley James Colin Smith, the Respondent.
The Insurer decided to accept Mr French’s application for compensation and on 1 June 2016 provided the Respondent with reasons for this decision. The Insurer determined Mr French was a ‘worker’ in accordance with s 11 of the Workers Compensation and Rehabilitation Act 2003 (the Act) employed by the Respondent at the time of the claimed incident and that he had sustained an ‘injury’ in accordance with s 32 of the Act.
On 22 August 2016 the Respondent lodged an application for review in respect of the acceptance of Mr French’s claim.
On 21 October 2016 the Review Officer confirmed the decision of the Insurer to accept the claim in accordance with section 32 of the Act.
On 23 November 2016 the Respondent filed a Notice of Appeal against the Regulator’s decision.
On 23 November 2016 the Commission issued Directions Orders to the parties.
On 7 December 2016, the Applicant sent an email to the Respondent advising the contact details of the officer managing the Appeal at the Regulator and provided the Regulator’s List of Documents in accordance with Directions Order 2 issued by the Commission on 23 November 2016.
The Respondent failed to comply with Directions Order 1 by not providing the Applicant with a List of Documents.
On 20 December 2016, the Applicant contacted the Respondent via the telephone contact number listed by the Respondent on the Notice of Appeal described in (f) above. There was no answer.
On 22 December 2016, the Applicant contacted the Respondent via the telephone contact number listed by the Respondent on the Notice of Appeal described in (f) above. There was no answer.
On 22 December 2016, the Applicant sent an e-mail to the Respondent regarding his failure to provide the List of Documents.
On 10 January 2017 the Applicant wrote to the Commission requesting vacation of the Directions Orders.
On 12 January 2017, the Commission issued an Amended Directions Order and wrote to the Respondent requesting an update.
To the Applicant’s knowledge, the Respondent failed to respond to this communication.
On 2 February 2017, the Commission again wrote to the Respondent requesting an update.
To the Applicant’s knowledge, the Respondent failed to respond to this communication.
On 17 February 2017, the Commission listed the appeal for mention before Deputy President O'Connor.
The Respondent failed to appear at the mention listed for 2 March 2017."
- [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]It is not necessary to again rehearse the authorities to support the Commission's power to dismiss a proceeding in circumstances where there has been a failure by a party in the proceeding to comply with a directions orders.[1]
- [7]The chronology before the Commission paints a clear picture of non-compliance. 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 documents to be relied upon at the hearing;
- Responding to Commission correspondence and requests;
- Attendance at the mention on 2 March 2017.
- [8]The appellant has taken no action to progress the matter since 22 May 2015.
- [9]The appellant's conduct does not evidence, in my view, an intention on his part to advance or prosecute his appeal.
- [10]The Commission has an obligation to actively manage the matters filed in the Industrial Registry and to ensure the parties comply with the directions orders issued by it. The Rules aid the Commission to case manage its list; to assist the parties to prepare their cases; to ensure the efficient use of the Commission's time and resources; and to assist in the resolution of the real issues in the proceedings. This approach is consistent with the purpose of the rules "… to provide for the just and expeditious disposition of the business of the court, the commission … at a minimum of expense."[2] As Thomas JA noted in Quinlan v Rothwell & Anor "… the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended."[3]
- [11]
- [12]Having regard to the history of delay, the unjustified noncompliance with the directions orders, the absence of any contact with the Commission since 23 November 2016 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/2016/226 is dismissed.
- [14]It follows that in light of the dismissal that the decision of the respondent dated 21 October 2016 is affirmed.
- [15]I make no order as to costs.