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Workers' Compensation Regulator v Varga QIRC 28
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation Regulator v Varga  QIRC 028
Workers' Compensation Regulator
Varga, Stephen Rodney
4 February 2019
1 February 2019
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
Industrial Relations Act 2016 (Qld) s 541
Industrial Relations (Tribunal) Rules 2011 r 6, r 45
Gambaro v Workers’ Compensation Regulator  ICQ 005
House v The King (1936) 55 CLR 499
Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) FCR 388
Seymour v Workers' Compensation Regulator  QIRC 061
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd  QIC 73; 180 QGIG 1209
Quinlan v Rothwell & Anor  QCA 176
Ms R Jamieson for the applicant.
No appearance for the respondent.
Reasons for Decision (ex tempore)
- 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 Stephen Rodney Varga (Matter No. WC/2018/7) be dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunal) Rules 2011.
- The appellant made an application for compensation on 21 September 2017 alleging that he sustained an injury on 29 August 2017. The nature and mechanics of the injury were stated as: "lower back, back pain, lumbago, sciatica whilst carrying a nitrogen bottle and missing a step off ladder."
- At the time of the alleged injury, the appellant was employed by Air Smart Air Conditioning Pty Ltd as an air conditioning installer.
- WorkCover Queensland considered Mr Varga's application and advised by reasons of decision on 5 October 2017 that his application had been rejected. The rejection was based upon the lack of direct witnesses and formal reporting of the injury to his employer, and a delay in seeking medical treatment. WorkCover concluded that Mr Varga had not sustained an injury in accordance with s 32 of the Workers Compensation and Rehabilitation Act 2003.
- On 8 November 2017 an application for review was lodged with the regulator by Shine Lawyers on behalf of Mr Varga.
- By decision dated 12 December 2017, the regulator confirmed the decision of WorkCover to reject Mr Varga's application for compensation in accordance with s 32 of the Act. It is against that decision that Mr Varga appealed to this Commission.
- The regulator relies on s 541(b) of the Act as a basis upon which the Commission may dismiss the appeal. As Martin J observed in Gambaro v Workers’ Compensation Regulator
Section 541 (like s 331 of the predecessor Act) applies only to an “industrial cause”, which is defined as an “industrial dispute” or “industrial matter”. No argument was addressed to the applicability of s 541 to workers’ compensation appeals … It is well arguable that a claim for workers’ compensation does not fall within this definition and, consequently, the discretion under s 541 is not enlivened. In these circumstances, I will not rely on s 541.
- In Seymour v Workers' Compensation Regulator I wrote:
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 …. 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.
In my view, this is not an industrial cause…. 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.
- Accordingly, I do not intend to rely on s 541 as a source of power but rather proceed on the basis to deal with this matter under r 45(3) of the Industrial Relations (Tribunals) Rules 2011.
- The regulator relies upon the chronology of events set out in the application. For convenience the chronology contained in the affidavit of Ruth Jamieson filed in the Industrial Registry on 16 November 2018 is set out below:
- On 8 January 2018, the Respondent in this application (the Appellant in WC/2018/7 and hereafter referred to as Mr Varga) filed an appeal in the registry of the Queensland Industrial Relations Commission (the Commission). The form was completed and filed by Mr Varga's then solicitors, Shine Lawyers, Southport.
- The commission issued directions in the matter on 9 January 2018.
- On 20 June 2018, Mr Varga's solicitors sought an extension of time in which to supply their client's List of Witnesses
- The extension was granted and the Commission issued Amended Further Directions Orders on 21 June 2018.
- On 18 July 2018, Shine Lawyers, Southport wrote to the Commission and:
- Advised they no longer acted for Mr Varga;
- Sought a further time extension on Mr Varga's behalf to allow him to seek further representation.
- On 19 July 2018 the Commission issued Further Amended Directions granting the requested extension.
- On 6 August 2018 I wrote to Mr Varga offering to settle the appeal and providing a copy of the most recent directions of the Commission. No response was received from Mr Varga.
- On 21 August 2018 the Commission wrote to Mr Varga following up on the Appellant's List of Witnesses due 17 August 2018 as per the most recent directions.
- On 27 August 2018 the Commission wrote to Mr Varga following up on the Appellant's List of Witnesses due 17 August 2018.
- On 7 September 2018 I wrote to the Commission seeking an extension of time in which to supply the Respondent's List of Witnesses due to the non-compliance of the Appellant.
- On 17 September 2018 the Commission wrote to Mr Varga following upon the Appellant's List of Witnesses due 17 August 2018.
- On 25 September 2018 the Commission wrote to Mr Varga following up on the Appellant's List of Witnesses due 17 August 2018.
- On 24 October 2018 the Registry issued the parties with a Notice of Listing, scheduling matter WC/2018/7 for mention 15 November 2018.
- On 15 November 2018, Ruth Moroney, Senior Review and Appeals Officer, appeared on behalf of the Applicant. Ms Moroney informed me, and I verily believe, that Mr Varga did not make any appearance, either in person or by phone.
- To date Mr Varga has not provided the Regulator with a List of Witnesses or witness evidence outlines in order to show compliance with directions order previously issued.
- To date Mr Varga has not responded to any e-mail correspondence sent by myself or to my knowledge, the Registry providing an explanation for non-compliance.
- To date Mr Varga has not informed the Commission or the Regulator as to his intentions in relation to his appeal and the explanation as to the lack of prosecution of his matter.
- 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.
- 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.
- Rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 provides:
45Failure 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).
- In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd 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.
- 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.
- 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 noncompliance 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.
- 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.
- Mr Varga lodged his appeal with the Industrial Registry on 8 January 2018. On 18 July 2018, Mr Varga's lawyers advised the Commission that they no longer acted for him. Since that time both the Commission and the regualtor have written to Mr Varga seeking his compliance with the directions orders issued by the Commission. In particular, the Commission wrote on 21 August 2018, 27 August 2018, 17 September 2018 and 25 September 2018. On 24 October 2018 the matter was listed for mention before the Commission on 15 November 2018. The appellant did not appear at the mention either in person or by telephone. No explanation was given for his non-attendance. Nor has any explanation be given for the non-compliance with the directions order. Further, as can be seen in the chronology, the applicant has attempted on numerous occasions to communicate with Mr Varga without success.
- In addition, the applicant advised me at the hearing that it had emailed and sent the current application via registered post to Mr Varga and had tried to contact Mr Varga via mobile on Wednesday the 27th of January 2019 however there was no facility to leave a message.
- The discretion conferred under r 45 must 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 non-compliance with the directions orders, the absence of any communications since 18 July 2018 and, in particular, his failing to attend the mention on 15 November 2018 and 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/2018/7 be dismissed. There will be no order as to costs.
- I make the following orders:
- The application is granted;
- Pursuant to r 45(3) of the Industrial Relations (Tribunal Rules) 2011, I dismiss the proceedings in matter WC/2018/7; and
- I make no order as to costs.
- Published Case Name:
Workers' Compensation Regulator v Varga
- Shortened Case Name:
Workers' Compensation Regulator v Varga
 QIRC 28
04 Feb 2019