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Foster v Workers' Compensation Regulator[2018] QIRC 97

Foster v Workers' Compensation Regulator[2018] QIRC 97

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Foster v Workers' Compensation Regulator [2018] QIRC 097

PARTIES: 

Workers' Compensation Regulator

(Applicant)

v

Julie Foster

(Respondent)

CASE NO:

WC/2018/59

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

18 July 2018

HEARING DATE:

18 July 2018

MEMBER:

HEARD AT:

O'Connor DP

Brisbane

ORDER:

  1. The application is granted; and
  1. Pursuant to r 45(3) of the Industrial Relations (Tribunal Rules) 2011, I dismiss the proceedings in matter WC/2018/59; and
  1. I make no order as to costs.

CATCHWORDS:

INDUSTRIAL LAW – WORKERS' COMPENSATION – APPLICATION TO DISMISS – where the respondent failed to comply with directions in an appeal – where the respondent has not taken any steps to progress appeal – where the respondent has failed to attend hearings – whether discretion to dismiss proceeding is enlivened

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld) s 541

Industrial Relations (Tribunal) Rules 2011 r 6, r 45

House v The King (1936) 55 CLR 499

O'Sullivan v Farrer (1989) 168 CLR 210

Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; 180 QGIG 1209

Quinlan v Rothwell & Anor [2001] QCA 176

APPEARANCES:

Ms Joanne Webb for the applicant

No appearance for the respondent

Reasons for Decision

  1. [1]
    The Workers' Compensation Regulator has made an application to this Commission pursuant to s 541(b) of the Industrial Relations Act 2016 seeking an order that the appeal filed by Julie Madonna Foster (Matter No. WC/2018/59) be dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunal) Rules 2011. The regulator seeks no order for costs.
  1. [2]
    I refer to and extract from the affidavit of Joanne Webb of the Workers' Compensation Regulator dated 13 July 2018 the following chronology of events:
  1. On or about 21 June 2017, the Respondent in this application (the appellant in WC/2018/59 and hereafter referred to as "Ms Foster") lodged an application for compensation with the Insurer in respect of a psychological/psychiatric injury said to have occurred on or about 24 April 2017.
  2. On or about 13 October 2017, the Insurer accepted Ms Foster's application for compensation for a psychological/psychiatric injury.
  3. On 10 January 2018, Grace College, the Employer, sought a review of the Insurer's decision to accept the claim.
  4. On 20 February 2018, the Review Unit of the Regulator set aside the Insurer's decision and determined that Ms Foster's application for compensation was one for rejection.
  5. On 19 March 2018, Ms Foster, by way of her legal representatives, lodged a notice of appeal (the notice) in the Commission. A copy of this Notice WC/2018/59 is contained on the Commission file. At the time that the Notice filed, Ms Foster was represented by Hall Payne Lawyers.
  6. On 23 March 2018, the Industrial Registry of the Commission (the Registry) issued a directions order requiring the parties to take certain steps, the first of which was for Ms Foster to supply to the Applicant a list of documents by 4:00pm on 11 April 2018. A copy of this directions order is contained on the Commission file.
  7. On 10 April 2018, Ms Shedden received a phone call, and I verily believe, from a person at Hall Payne Lawyers advising Ms Shedden that they were no longer representing Ms Foster. A true copy Ms Shedden's file note is attached and marked 'JMW1'.
  8. On 11 April 2018, Ms Foster emailed the Registry requesting an extension of time to provide her list of document as she was seeking further legal advice.
  9. On 13 April 2018, the Registry issued a further directions order providing Ms Foster further time to supply to the Regulator a list of documents in her possession until 4:00pm on 3 May 2018. A copy of this further directions order dated 13 April 2018 is contained on the Commission file.
  10. On 11 May 2018, Ms Shedden sent an email, and I verily believe, to Ms Foster informing her that she had not yet provided her list of documents. A true copy of Ms Shedden's email dated 11 May 2018 is attached and marked 'JMW2'.
  11. On 24 May 2018, Ms Shedden sent an email, and I verily believe, to the Registry informing the Registry of Ms Foster's non-compliance with the further directions order. A true copy of Ms Shedden's  email dated 24 May 2018 is attached and marked 'JMW3'.
  12. On 25 May 2018, the Registry issued a further amended directions order to both parties vacating the directions order dated 13 April 2018. A copy of this further amended directions order dated 25 May 2018 is contained on the Commission file.
  13. On 11 June 2018, the Registry sent an email to Ms Foster requesting that she inform the Commission as to the current status of the appeal and that this matter would be scheduled for mention should she not reply. A copy of this email dated 11 June 2018 is contained on the Commission file.
  14. On 25 June 2018, the Registry issued the parties with a Notice of Listing, scheduling matter WC/2018/59 for mention on 12 July 2018. A copy of this listing notice dated 25 June 2018 is contained on the Commission file.
  15. On 12 July 2018, Michael Cutting, Senior Review and appeals Officer, appeared on behalf of the Applicant. Mr Cutting informed me, and I verily believe, that Ms Foster did not make any appearance, either in person or by phone.
  16. To date Ms Foster has not provided a List of Documents in order to show compliance with any directions orders previously issued.
  17. To date Ms Foster has not responded to any email correspondence sent by Ms Shedden and/or the Registry providing an explanation for any non-compliance.
  18. To date Ms Foster has not informed the Commission or the Regulator as to her intentions in relation to her appeal and the explanation as to the lack of prosecution of her matter.
  1. [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.

  1. [4]
    In my view, r 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.
  1. [5]
    Rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 provides:

45 Failure to attend or to comply with directions order

  1. (1)
    This rule applies if–
  1. (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;
  1. (b)
    the party fails to attend the hearing or conference.
  1. (2)
    This rule also applies if–
  1. (a)
    A party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
  1. (b)
    The party fails to comply with the order.
  1. (3)
    The court, commission or registrar may—
  1. (a)
    dismiss the proceeding; or
  1. (b)
    make a further directions order; or
  1. (c)
    make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  1. (d)
    make orders under paragraphs (b) and (c).
  1. [6]
    The discretion conferred under r 45 must be exercised judicially.[1]
  1. [7]
    In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd[2] his Honour President Hall, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell & Anor as follows:

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.[3]

  1. [8]
    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.
  1. [9]
    On 11 April 2018 Ms Foster emailed the Industrial Registry requesting further time to comply with the directions order and further requesting "If you require any further information please email me". The Industrial Registry exercised its discretion and afforded Ms Foster further time by issuing a further directions order on 13 May 2018. Ms Foster subsequently did not comply with the further directions order.
  1. [10]
    On 25 May 2018 the Industrial Registry vacated the directions order of 13 May 2018 due to non-compliance. The Industrial Registry emailed Ms Foster on 11 June 2018 requesting that she inform the Commission as to the current status of the appeal and that this matter would be scheduled for Mention should she not reply. Ms Foster did not respond to the email and the matter was listed for Mention on 12 July 2018. Ms Foster did not attend the Mention.
  1. [11]
    The regulator filed an application to dismiss on 13 July 2018 with the application listed for hearing on 18 July 2018. Ms Foster again failed to attend the hearing.  Ms Webb on behalf of the Regulator informed me that on 13 July at 2.15pm a copy of the application was emailed to the appellant and a delivery receipt was received. I have also been advised that an attempt was made to contact the appellant earlier today on her home telephone. The telephone was answered by Mr Steve Foster the appellant's husband. A message was left. An attempt was also made to contact the appellant on the mobile telephone number held by the Commission.
  1. [12]
    Ms Foster has demonstrated a pattern of conduct which disregards the directions of the Commission. Both the Commission and the regulator have sent numerous emails to which Ms Foster has not responded. Ms Foster has demonstrated that she is capable of contacting the Registry as is evident in her email of 11 April 2018.
  1. [13]
    Having considered the material before the Commission and the affidavit and supporting material of the Regulator, I have formed the view that Ms Foster has no intention to comply with the directions of the Commission or take any step to prosecute her appeal.
  2. [14]
    The discretion to dismiss this proceeding has, in my view, been enlivened. Accordingly, having regard to the history of delay, the unjustified non-compliance with the directions orders, the absence of any contact with the Commission since 11 April 2018 and, in particular, her failing to attend the mention on 12 July 2018 and the hearing of this application are grounds to exercise the discretion to dismiss the proceeding. Accordingly, pursuant to r 45(3) of the Rules I dismiss the proceedings.

Orders

  1. [15]
    I make the following orders:
  1.  The application is granted;
  1.  Pursuant to r 45(3) of the Industrial Relations (Tribunal Rules) 2011, I dismiss the proceedings in matter WC/2018/59; and
  1.  I make no order as to costs.

Footnotes

[1] House v The King (1936) 55 CLR 499, 504-505.

[2] [2005] QIC 73; 180 QGIG 1209.

[3] [2001] QCA 176.

Close

Editorial Notes

  • Published Case Name:

    Julie Foster v Workers' Compensation Regulator

  • Shortened Case Name:

    Foster v Workers' Compensation Regulator

  • MNC:

    [2018] QIRC 97

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor DP

  • Date:

    18 Jul 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
O'Sullivan v Farrer (1989) 168 CLR 210
1 citation
Jump To
Cite 1 - (1989) 168 CLR 210
Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 1209
Cite 2 - (2005) 180 QGIG 1209
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73
2 citations
Jump To
Cite 1 - [2005] QIC 73
Cite 2 - [2005] QIC 73
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
2 citations
Jump To
Cite 1 - [2001] QCA 176
Cite 2 - [2001] QCA 176

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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