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Workers' Compensation Regulator v Bero QIRC 36
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation Regulator v Bero  QIRC 036
Workers' Compensation Regulator
Bero, Peter Christopher
05 March 2019
28 February 2019
INDUSTRIAL LAW – WORKERS' COMPENSATION – APPLICATION TO DISMISS – where the respondent failed to comply with directions in an appeal – where the respondent has failed to adequately prosecute appeal – whether discretion to dismiss proceeding is enlivened
Industrial Relations (Tribunal) Rules 2011 r 6, r 45
Gambaro v Workers’ Compensation Regulator  ICQ 005
Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd (1990) FCR 388
Quaedvlieg and Others v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209
Quinlan v Rothwell  QCA 176
Robertson v Graham & Ors  QSC 215
Smith v Workers' Compensation Regulator  QIRC 070
Spencer v Workers' Compensation Regulator  QIRC 065
Stollznow v Calvert  2 NSWLR 749
Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405
Mr A Kitchen of Counsel, directly instructed by the applicant
Mr P Bero for himself, appearing via telephone
Reasons for Decision
- The Workers' Compensation Regulator has made an application to this Commission pursuant to rule 45(3) of the Industrial Relations (Tribunal) Rules 2011 seeking an order that the appeal filed by Peter Christopher Bero (Matter No. WC/2017/2) be dismissed.
- On 22 October 2015 Mr Bero lodged a handwritten application for compensation for an injury described as "depression, anxiety and stress" allegedly caused by multiple workplace incidents which occurred whilst employed for Wilmar at Kalamia Sugar Mill, Ayr. Wilmar (as a self-insurer) investigated and subsequently rejected the claim. On 26 August 2016 Mr Bero appealed the decision of Wilmar to the Workers' Compensation Regulator. The Regulator confirmed the decision of the self-insurer finding that Mr Bero's injury arose out of, or in the course of, management action that was reasonable and taken in a reasonable way.
- On 9 January 2017 Mr Bero lodged a notice of appeal with the Industrial Registry.
The present application
- The Regulator relies upon the chronology of events set out in the application. So far as is relevant I have extracted from the chronology as contained in the affidavit of Joanne Webb, senior review and appeals officer, sworn 16 February 2019.
- On 9 January 2017, the Commission issued a Directions Order directing the parties to take steps in the appeal.
- On 6 February 2017, the Appellant sought further time to provide a list of documents. On this same date, the Regulator agreed to the Appellant's request.
- On 23 February 2017, the Commission issued a Further Directions Order (FDO) directing the parties to take steps in the appeal.
- On 10 March 2017, the Appellant served the applicant in this application (the Regulator) with a list of documents.
- On 10 and 22 March 2017, the Regulator wrote to the Appellant by email and informed him that the list of documents he had served was not compliant with the Directions of the Commission.
- On 28 April 2017, the Appellant wrote to the Regulator by email requesting further time to organise his documents.
- On 4 May 2017, the Commission issued a further Amended Directions Order (FADO) requiring the parties to take steps in the appeal.
- On 20 July 2017, the Regulator sought further time to comply with the FDO's issued on 4 May 2017. The Commission granted the Regulator's request despite an objection by the Appellant and issued a FADO.
- On 28 July 2017, the Regulator filed and served an updated SOFC.
- On 1 August 2017, in response to concerns raised by the Appellant about a word (term) used in its SOFC, the Regulator filed and served an amended updated SOFC.
- On 8 August 2017, the Regulator wrote to the Industrial Registry by email informing them of the Appellant's non-compliance with the FADO dated 21 July 2017.
- On 9 August 2017, the Commission issued a FADO allowing the Appellant further time to comply.
- On 18 August 2017, the Appellant requested an extension of time to comply with directions.
- On 21 August 2017, the Regulator informed the Commission that it consented to the Appellant's request for an extension and the Commission issued a FADO dated 21 August 2017.
- On 30 August 2017, the Appellant wrote to the Commission by email setting out that although he had a list of witnesses, he did not have 'statements' from Dr Chris Alroe or Dr Alexander Bonyhai.
- On 31 August 2017, the Regulator wrote to the Commission by email noting that the Regulator did not oppose a further request by the Appellant for an extension of time.
- On 8 September 2017, the Regulator wrote to the Commission by email requesting further time to comply with directions as the Appellant had not complied.
- On 11 September 2017, the Commission issued a FADO.
- On 12 September 2017, the Regulator wrote to the Appellant by email requesting that he provide outstanding Statements of evidence/outlines of evidence from Dr Alroe and Dr Bonyhai and on this same date, the Appellant responded that he was still waiting for the doctors to provide the statements and that he was adding a further witness to his witness list.
- On 18 September 2017, the Appellant provided by email, statements of evidence from Dr Alroe and another witness, Wais Bero.
- On 26 September 2017, the Regulator wrote to the Appellant by email requesting that he provide the statements of evidence/outlines of evidence from Dr Bonyhai and Maxie Bero.
- On 19 October 2017, the Industrial Registry of the Commission wrote to the Regulator by email enquiring as to the Regulator's list of witnesses and on 20 October 2017, the Regulator responded to the Commission setting out that the Appellant remains non-compliant with the FADO issued on 11 September 2017.
- On 8 November 2017, the matter proceeded to a directions hearing before DP Bloomfield.
- On 1 December 2017, the Regulator informed the Commission that the matter should proceed to a preliminary hearing to determine the date of injury and for associated directions as to confining the Appellant's SOFC to 2011.
- On 6 December 2017, the Commission issued a directions order in regard to the preliminary hearing.
- On 21 December 2017, the Regulator filed and served its submissions ahead of the preliminary hearing.
- On 29 January 2018, the Regulator received copy of the Appellant's submissions ahead of the preliminary hearing.
- On 6 February 2018, the preliminary hearing was heard by Vice President O'Connor (Deputy President O'Connor as he then was). Following the hearing and on the Regulator securing a date for the Appellant to be independently medically examined by Dr Gundabawady Psychiatrist, the Commission issued a directions order directing the Appellant to undergo such examination.
- On 16 March 2018, the Regulator filed and served additional submissions by email with respect to the matter in dispute in the preliminary hearing. The Regulator also sought directions with respect to the further progress of the appeal towards hearing.
- On 26 March 2018, the Associate to the Vice President enquired with the Appellant as to whether he had objections to the Directions sought by the Regulator.
- On 27 March 2018, the Appellant wrote to the Commission and the Regulator by email setting out that he did not want to restrict the stressors to only those in the period up to and including 31 December 2011.
- On 5 April 2018, the matter proceeded to mention before the Vice President whereby submissions were made on the issue of date of injury. At that time his Honour proposed to order that the Appellant, within 28 days, file and serve an amended SOFC, limited to those stressors that occurred on or before 31 December 2011.
- On 23 April 2018, the Regulator received an email from the Appellant asserting that he would give his statement verbally when the hearing date is set.
- On 9 May 2018, the Regulator wrote to the Commission by email requesting that the matter be mentioned due to the Appellant's non-compliance with the FDO's issued on 5 April 2018.
- On 10 May 2018, the Regulator received an email from the Appellant requesting further time to provide an amended SOFC and on that same date the Regulator wrote to the Commission setting out that the Regulator consented to the Appellant's request for an extension.
- On 14 May 2018, the Commission issued a FADO dated 11 May 2018.
- On 14 May 2018, the Appellant filed and served an amended SOFC.
- On 11 June 2018, the Regulator filed and served an amended SOFC pursuant to the amended directions order of 11 May 2018 setting out that the Appellant's appeal was limited to those stressors occurring in 2011, and that the comments the Appellant alleges as being directed at him by co-workers occurred in 2014 and that further particulars were required in order to respond to a number of the Appellant's allegations of fact.
- On 2 July 2018, the Regulator wrote to the Commission setting out a number of concerns with respect to Appellant's amended SOFC and list of witnesses.
- On 18 July 2018, at 2.00pm this matter proceeded to a mention before the Vice President. At this mention the Appellant was directed to comply with the directions.
- On 18 July 2018, the Commission issued a FDO directing the parties to take steps in the matter and directing the Appellant to provide further particulars of the allegations contained in paragraph 2 of his SOFC and for each comment made he provide:
- The date or approximate dates on which the comment was made;
- The names of the person who made the comment;
- Where (specifying what part of the workplace) the comment was made;
- If the comment was made to a person other than the Appellant, the name of that other person.
- On 2 August 2018, the Appellant served a new SOFC dated 14 May 2018.
- On 9 August 2018, the Regulator wrote to the Appellant by email informing him that the Regulator was of the view that he had not complied with the FDO issued on 18 July 2018 and agreeing to a further period of time for him to comply. On this same date the Appellant responded by stating that he does not "expect for people to remember because it happened 7 years ago"
- On 10 August 2018, the Regulator wrote to the Commission requesting a review mention due to the Appellant's non-compliance with the directions issued on 18 July 2018.
- On 30 August 2018, the parties attended a mention of this matter before the Vice President. At this mention the Regulator raised the issue of the Appellant's continued non-compliance with Directions orders. At that stage the Regulator sought a direction that if Mr Bero did not comply with the Vice President's previous order then there would be a self-executing order striking out Mr Bero's appeal under r 45 of the rules. At that hearing the Appellant was informed by his Honour
- That he needed to focus on the matter which had been going for far too long
- To comply with the orders that would be issued that day; and
- That the Regulator would be entitled to comeback before his Honour and ask for his Honour to consider striking out his appeal should the non-compliance continue.
- On 30 August 2018, the Commission issued an amended FDO directing the parties to take steps in the matter.
- On 21 September 2018, the Regulator received correspondence from Organic Legal informing that the firm had been engaged to act on behalf of the Appellant and seeking an extension of time to file an amended SOFC. On this same date the Regulator consented to the Appellant's request for an extension of time.
- On 17 October 2018, the Regulator received correspondence and an email from the Appellant's legal representatives seeking a further extension of time to comply with the directions of the Commission.
- On 23 October 2018, the Commission issued an amended FDO directing the parties to take steps in the matter.
- On 23 October 2018, the Regulator wrote to the Commission by email requesting that amendments be made to the amended FDO issued on 23 October 2018.
- On 29 November 2018, the Regulator received correspondence from Organic Legal setting out that the firm no longer represented the Appellant.
- On 19 December 2018, the Appellant wrote by email requesting further time, until 24 December 2018, to complete an amended SOFC and on this same date the Regulator informed the Appellant that there was no objection to his request on the basis that the Regulator had an extension until 14 January 2019.
- On 26 December 2018, the Appellant served a copy of his amended SOFC dated 24 December 2018.
- On 7 January 2019, the Regulator wrote to the Appellant by email setting out that his amended Statement of Facts and Contentions is not compliant with the directions orders as the Appellant had not provided sufficient particulars of the alleged comments and informing the Appellant of the Regulator's intention to apply to strike out his appeal.
- On 7 January 2019, the Appellant wrote by email to the Regulator enquiring as to why the Regulator did not send its email to the Commission. On this same date the Appellant wrote again by email setting out that he intended to write a letter to the Commission asking why the Regulator wants to suddenly dismiss his case, that he is prejudiced and that he will explain his reasons for not complying with the directions.
- I am concerned that with the effluxion of time the memory of any relevant witnesses to any alleged comments in the workplace in 2011 will have dulled. I am concerned that without the particulars of fresh alleged comments as directed by the Commission the Regulator will be significantly prejudiced in both its case preparation and case presentation should this matter continue to a hearing a fair trial will not be possible. I am also concerned with the extent of the delay in the applicant prosecuting his appeal and the prejudice to the respondent, employer and witnesses that such delay would be expected to entail.
- The Commission has jurisdiction to dismiss a matter for non-compliance with the directions of the Commission. Rule 45 of the Industrial Relations (Tribunals) Rules 2011 provides that if a party to a proceeding receives notice of a directions order made by the Commission and fails to comply with the order, the Commission may dismiss the proceeding or make a further directions order.
- In Spencer v Workers' Compensation Regulator I said in relation to rule 6:
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.
- In Smith v Workers' Compensation Regulator, in dealing with a striking-out application for the unjustified non-compliance with directions orders I wrote:
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.
- In Quaedvlieg and Others v Boral Resources (Qld) Pty Ltd, a matter relating to an application to strike out for want of prosecution, Hall P cited Thomas JA in Quinlan v Rothwell:
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 principles relevant to the exercise of a discretion, in an application to dismiss for failing to comply with Directions Orders, were discussed in Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd. That case involved the application of Order 10 rule 7 of the Federal Court Rules. Order 10 rule 7 is in similar terms to rule 45. Order 10 rule 7 provided at that time:
7 (1) Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice -
(a)if the party in default is an applicant - for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding.
- After considering Order 10 rule 7, their Honours wrote:
- It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of "inordinate and inexcusable delay" on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.
- The discretion conferred by Order 10 rule 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: 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 and 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. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. 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.
- In the second of the two situations we postulate, a significant continuing default, 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. But the continuance of the non-compliance is of the essence of this situation.
- Notwithstanding the order of 5 April 2018 requiring Mr Bero to limit his stressors to those that occurred on or before 31 December 2011, he continues to claim that his psychological injury "arose out of or and (sic) in the course of my employment under Wilmar Sugar from 2011 until present". At paragraph 1 of the Amended Statement of Facts and Contentions under the heading "Facts", Mr Bero refers to his employment from 2011 to 2014 and the broad ranging allegations in paragraph 2 are not identified as having occurred in 2011 or indeed at any particular time.
- A matter of concern is the failure by Mr Bero to provide detailed further particulars of the allegations contained in paragraph 2 of his Statement of Facts and Contentions. In respect of each alleged comment, he was asked to provide: the date or approximate dates on which the comment was made; the names of the person or persons who made the comment; where (specifying what part of the workplace) the comment was made; and if the comment was made to a person other than the Appellant, the name of that other person. The request was neither complex or onerous.
- Mr Bero was legally represented for a period between 21 September 2018 and 29 November 2018. He had the opportunity during this period to comply with the direction order requiring him to file and serve an Amended Statement of Facts and Contentions setting out events he alleges occurred in 2011. He did not do so.
- In Robertson v Graham & Ors White J wrote:
A person is entitled to litigate to vindicate a lawful claim but there are rules and they apply to large corporations, the wealthy and to self represented litigants equally. As Mason CJ and Gaudron J observed in Banque Commercial SA, En Liquidation v Akhil Holdings Ltd: “… pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness.
- At the hearing of this application Mr Bero told the Commission that he was not a lawyer. In that regard, Martin J in Gambaro v Workers’ Compensation Regulator wrote:
Although the Appellant is unrepresented, this does not excuse his noncompliance. A lack of legal representation is a misfortune, not a privilege. In Robertson v Hollings, Keane JA (with whom Fraser JA and Cullinane J agreed) said:
[L]itigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted.
- As the submissions of the Regulator identify, Mr Bero has on no fewer than twelve occasions sought and been granted an extension of time. Of concern is that on at least ten occasions, Mr Bero has not complied with the directions issued by the Commission notwithstanding numerous warnings concerning non-compliance with directions.
- The interests of justice is the primary consideration. In Stollznow v Calvert a case relating to the prosecution of proceedings in the Supreme Court of New South Wales with due despatch, Moffitt P adopted the following passage from the judgment of Walsh J in Witten v Lombard Australia Ltd:
[A]balance must be struck as between the plaintiff and the defendant and, in the end, "the court must decide whether or not on balance justice demands that the action should be dismissed."
- This appeal was commenced in January 2017. It relates to an application for compensation for a psychological injury. The psychological injury is said to have arisen out of allegedly racial or derogatory comments made by co-workers in the workplace in 2011. The Regulator submits that because of the effluxion of time, independent recollection of any alleged events by witnesses for the Regulator is at real risk of having dulled to an extent it is of little utility in determining this matter. Mr Bero seems to understand that issue. In an email to the Regulator on 9 August 2018 he wrote: "I don’t expect people to remember because it happened 7 years ago." As was noted in Lenijamar "…in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties."
- In response to the present application, Mr Bero has been unable to provide a valid reason for his non-compliance with directions orders. At the hearing of the application he advised the Commission he did not read the submissions of the Regulator because "the reason why I didn’t want to read it is because it upsets me. During the night, I can’t sleep. That’s why I didn’t read it, because I’ve got work the following day." The fact that Mr Bero is not prepared to read documents relevant to his appeal on the basis that it upsets him does not instil in me any degree of confidence that he is prepared to undertake the necessary steps to prosecute his appeal.
- I am also concerned that Mr Bero fails to appreciate the seriousness of his history of non-compliance as he told me "I’m not worried about – that’s not my point. I don’t care because I’m not a lawyer." Mr Bero appears to be under a misunderstanding that as a self-represent litigant he is entitled to an unlimited amount of leniency from this Commission. A lack of legal representation is as the authorities have suggested a "misfortune, not a privilege".
- I accept that Mr Bero has been given ample opportunity to comply with the Directions Orders of the Commission and has been warned about the consequences of his failure to comply. I cannot be confident that if Mr Bero was given any further indulgence he would become compliant or take steps to prosecute his appeal. In my view, the conduct of Mr Bero over the last two years "does not evidence…an intention on his part to advance or prosecute his appeal". I accept the Regulator’s submission that Mr Bero’s continued failure to properly particularise his allegations does not give the Regulator a proper opportunity of meeting the case against it. Mr Bero has had ample opportunity to produce an acceptable Statement of Facts and Contentions and has either been unwilling or unable to do so. Mr Bero has been advised in the past about the requirements of an acceptable statement of facts and contentions and the requirement to comply with the rules. It follows therefore that the application be granted and the appeal dismissed.
- The applicant in these proceedings does not seek an order for costs of the appeal or of this application. Nor does it seek the costs of the independent medical examination by Dr Gundabwady, a second psychiatric medicolegal examination and report as requested by Mr Bero at a hearing in Townsville on 6 February 2018 and arranged and paid for by the Regulator.
- The application is granted; and
- Pursuant to r 45(3) of the Industrial Relations (Tribunal Rules) 2011, I dismiss the proceedings in matter WC/2017/2; and
- I make no order as to costs
 Industrial Relations (Tribunals) Rules 2011 r 45(2), (3).
  QIRC 065, at .
  QIRC 070 at .
 (2005) 180 QGIG 1209.
  QCA 176 .
 (1990) FCR 388 (Wilcox and Gummow JJ).
  QSC 215.
  ICQ 005.
  2 NSWLR 749, per Moffitt P at 751–2.
 (1968) 88 WN (Pt 1) (NSW) 405 at 412.
 T1-7 Ll20-23.
 T1-7 Ll32-33.
 Spencer v Workers' Compensation Regulator  QIRC 065 at .
- Published Case Name:
Workers' Compensation Regulator v Bero
- Shortened Case Name:
Workers' Compensation Regulator v Bero
 QIRC 36
05 Mar 2019