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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Rea v Workers’ Compensation Regulator  QIRC 114
Workers' Compensation Regulator
Appeal against a decision of the Workers’ Compensation Regulator
7 August 2020
Conferenced on 24 March 2020 and 17 July 2020
WORKERS' COMPENSATION – APPEAL – where Appellant has been directed to provide information – where Appellant has failed to comply with directions to provide statement of facts and contentions – application of rule 45 – appeal dismissed.
Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, r 45
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32, s 125, s 553
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) reg 132
Cady v Capital SMART Repairs Australia Pty Ltd & Anor  QIRC 144
Cooper v Hopgood & Ganim  QCA 114
House v R (1936) 55 CLR 499
Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd  98 ALR 200
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd  QIC 73
Quinlan v Rothwell & Anor  QCA 176
Seymour v Workers' Compensation Regulator  QIRC 061
Treanor v State of Queensland  QIRC 146
Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405
Workers' Compensation Regulator v Varga  QIRC 028
Workers’ Compensation Regulator v Bero  QIRC 36
Mr M. Rea on his own behalf.
Ms C-L. Godfrey of the Workers’ Compensation Regulator.
Reasons for Decision
- Mr Mark Rea (the Appellant) filed a Form 9 - WCR notice of appeal (the Appeal Notice) against a decision of the Workers’ Compensation Regulator (the Respondent) on 28 November 2019. The appeal relates to a decision of the regulator to terminate Mr Rea’s entitlement to compensation from 20 June 2019.
- According to the Appeal Notice, Mr Rea’s ground of appeal is:
Communication breakdown has occurred between all parties involved.
- On 24 March 2020 I conducted a conciliation conference between the parties. At that conference, Mr Rea was informed a Further Directions Order would be forthcoming, requiring him to file materials including a Statement of Facts and Contentions. I then took Mr Rea through the Workers’ Compensation Appeal Guide in considerable detail. He was referred to the relevant page numbers in that guide, pertinent forms on the Queensland Industrial Relations Commission website (‘the website’), and his questions about the process were answered. Further, Mr Rea was advised that the transcript of the conference would be made available to him, and that a second conference would be convened.
- I then had my Associate email Mr Rea immediately after the conference, to provide Mr Rea with:
- Two different links to the Workers’ Compensation Appeal Guide;
- Links to relevant forms on the website; and
- A notation that if Mr Rea required any assistance in complying with the Directions, he should contact the Industrial Registry by email or phone.
- A Further Directions Order was issued to the parties on 24 March 2020 requiring the parties to file a Statement of Facts and Contentions and a list of witnesses to be called and notifying the parties that the matter would be listed for a second conference on 17 July 2020.
- A Notice of Listing for that second conference was issued by the Industrial Registry to both parties, using the same email addresses as had been used to provide the parties with the first Notice of Listing. That was also the same email address that Mr Rea used to correspond with this Commission at other times.
- Despite all that, Mr Rea failed to comply with the Further Directions Order in several respects. First, he did not file any material whatsoever in respect of those Directions. Even now those Directions remain unfulfilled. Second, despite being granted leave to attend by telephone, Mr Rea failed to attend the second conference of this matter. At no stage has Mr Rea requested an extension.
- Following that non-attendance, I issued Further Directions to the parties inviting submissions on whether the matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld). That rule was copied into the body of the email sent by my Associate to the parties, to ensure that Mr Rea was aware of it.
- The parties subsequently filed written submissions on that issue.
- For the reasons that follow, I have determined that Mr Rea’s continued and unexplained non-compliance with my directions warrants the dismissal of his Appeal.
- The entirety of Mr Rea’s submissions about his non-compliance with Directions are extracted below:
I’m sorry I missed my appearance on the 17th of July due to communication issues.
I have been unable to locate witnesses due to circumstances in Aurukun and have had an immense amount of trouble getting medical documents sent to relevant departments. Although I believed that everything had been made available to all parties involved in this matter. That is why I chose to represent myself.
All I wish for is, my personal leave from CYE to be reimbursed and compensation from when I left their employ until I managed to get further employment. During which time, I had to find the cause of my back problem (prolapsed lower back disks) and obey GP instructions (Don’t bend over to pick anything up, don’t lift anything heavier than 5kg, don’t push or pull anything, stay at home and rest).
- In the Respondent’s submissions, they seek that the matter be dismissed due to Mr Rea’s non-compliance. They also explain that:
- Following the first conference on 24 March 2020, Mr Rea telephoned Ms Godfrey of the Workers’ Compensation Regulator. Ms Godfrey advised Mr Rea that further directions would be forthcoming from the Commission, and if he had any questions, he could telephone Ms Godfrey and she would assist him so far as she was able.
- Despite that offer of assistance, Ms Godfrey did not hear from Mr Rea again until after Mr Rea had failed to attend the second conference. When Mr Rea did telephone Ms Godfrey on 17 July 2020, Ms Godfrey explained to Mr Rea that he would be required to file written submissions about whether or not the matter should be dismissed for his failure to comply with Directions.
- On 21 July 2020, Mr Rea telephoned Ms Godfrey asking for assistance in writing his submissions about whether the matter should be dismissed. Ms Godfrey explained to him that he needed to explain in writing the reasons why he had not complied with the Directions Order dated 24 March 2020, and why he did not attend the second conference on 17 July 2020.
- On 23 July 2020, Mr Rea telephoned Ms Godfrey again. Ms Godfrey advised him that Mr Rea’s submissions did not clearly explain why his appeal should not be struck out, and why he has failed to comply with the Directions for filing.
- In correspondence between Mr Rea and Ms Godfrey, which copied in the Industrial Registry, the following exchange occurred:
Mr Rea - Thursday, 6 August 2020 2:06 PM:
I have no further submissions, as I obviously don't understand the law properly.
Please let me know if this is all I have to do mate.
Ms Godfrey – Thursday, 6 August 2020 2:08pm:
I refer to your email below. As you know, you can provide a reply to my submissions by 4pm tomorrow, 7 August 2020, but if you do not want to provide any further information, then the email you have sent below is sufficient.
Mr Rea - Thursday, 6 August 2020 2:23 PM:
Sorry, I haven't got anything else that I understand to send to you. I'll just have to roll with the punches I suppose mate.
- The Respondent submits that Mr Rea has not adequately explained why he has failed to comply with the Directions dated 24 March 2020, nor has he sufficiently explained why the matter should not be struck out. The Respondent further submits that even though Mr Rea is self-represented, he was provided ample assistance by Ms Godfrey. In that regard, I would note that a lack of representation is a misfortune, which should be met with necessary procedural assistance, but is not a privilege entitling a self-represented litigant to special consideration at the expense of the party or parties who are represented or more experienced in the jurisdiction.
Non-compliance with directions
- As set out in the background above, Mr Rea has failed to comply with Directions for filing materials, and has failed to comply with a Direction for attendance. Those Directions were explained to Mr Rea in the conference. He was provided ample opportunity to discuss the issue with the Industrial Registry, and Ms Godfrey generously offered him her assistance so far as she was able. I have no doubt that Mr Rea understood his obligations under the Directions, namely that he file materials and attend a conference at this Commission.
- Even now, Mr Rea has not complied with the Directions for filing and service of his Statement of Facts and Contentions and a witness list. In the email exchange of 6 August 2020, Mr Rea submitted that he had nothing further to add because he did not understand the law. In circumstances where every possible assistance has been provided to Mr Rea, his non-compliance with Directions cannot be said to arise from his lack of understanding of the law. His non-familiarity with the jurisdiction might explain a slightly deficient or poorly set out pleading, but not a total absence of any further filed material. The true explanation for Mr Rea’s lack of filing appears to be that he has simply chosen not to comply with Directions or to prosecute his case.
- The question is then whether such non-compliance warrants dismissal of this appeal.
- The Rules apply to a Workers’ Compensation appeal such as this. I communicated to the parties, via email from my Associate on 17 July 2020, that I was actively considering dismissing this appeal due to Mr Rea’s apparent non-compliance with directions under rule 45 of the Rules. Indeed, the Further Directions Order I issued on 17 July 2020, which required the Mr Rea to file submissions as to why the appeal should not be dismissed, was pointedly issued under rr 41 and 45.
- Rule 45 of the Tribunal Rules provides (emphasis added):
45 Failure 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).
- The power under rule 45(3)(a) involves an exercise of discretion. Foremost, discretionary powers must be “exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.” In exercising that discretion, I am informed by several factors, which are set out below. Ultimately, however, I must consider the particular circumstances of this case.
- In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to rule 45. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):
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.
- Such reasoning was followed by his Honour O'Connor VP in this jurisdiction in Workers' Compensation Regulator v Varga  QIRC 028, and Seymour v Workers' Compensation Regulator  QIRC 061, as well as by his Honour Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor  QIRC 144.
- Mr Rea’s default is certainly continuing, given his ongoing failure to file and serve the Statement of Facts and Contentions and witness list. It also imposes an unacceptable burden on the Respondent, as they are unable to meaningfully respond to the Appeal without understanding Mr Rea’s case. That is further emphasised by Mr Rea providing scant detail in the Appeal Notice.
- In the exercise of my discretion under rule 45, I am also minded to consider the purpose of the Tribunal Rules, as set out in rule 6:
- Purpose of rules
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.
- The terms ‘just’ and ‘expeditious’ may sometimes appear to be at odds. Australian Courts and Tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided (my emphasis):
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.
- While his Honour Thomas JA was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions, as the underlying question to be determined is consistent with the exercise of discretion under rule 45.
- In this matter, Mr Rea’s failure to comply with directions has resulted in a fundamental undermining of the Respondent’s ability to fully prepare their case. As such, were this matter to progress to hearing, in the current state of the Mr Rea’s noncompliance, it would be fundamentally unjust to the Respondent.
- One alternative to dismissal would be to place this matter into abeyance until either Mr Rea complies with the directions, or the matter lapses due to inactivity. However, Mr Rea has never expressed any genuine desire to comply with the directions, presently or at some stage in the future. He has not explained to any sufficient extent why he failed to attend the second conference, or why the Directions for filing have not been complied with. While the Mr Rea suggests he has had some difficulty accessing material, he has provided no details in that regard whatsoever. Nor has he asked for any extensions, or advised that the filing will occur within a particular timeframe. Mr Rea’s attitude as to his non-compliance is exposed by his total unwillingness to file even an attempt at the Statement of Facts and Contentions.
- Mr Rea’s decision not to take any steps to prosecute his appeal evinces, to my mind, an intention that he was not, and is not, genuinely intending to comply with my Directions. That mindset is also laid bare in his email exchanges with Ms Godfrey of 6 August 2020. As such, further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter, which has already been on foot since 2019.
- Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under rule 45 to dismiss this appeal.
- The power to award costs in a Workers’ Compensation Appeal is ultimately discretionary. Given that the Regulator has not been required to file any significant material in this matter beyond written submissions about the dismissal, and that the matter has not progressed beyond conference stage, I am not minded to award costs.
- Mr Rea has failed to comply with Directions to file materials in his appeal and has failed to comply with a Direction to attend a second conference in this matter. Those failures have not been explained anywhere in his materials, and the Direction to file materials has still not been complied with. That is despite Ms Godfrey and I providing him with significant assistance to understand his obligations under the Directions. Mr Rea has been entirely unwilling to take the necessary steps to prosecute his case.
- As such, I find that this appeal should be dismissed under rule 45. I order accordingly.
- That the appeal is dismissed.
- That each party is bear their own costs in the proceeding.
 ‘the Rules’.
 See, eg, Workers’ Compensation Regulator v Bero  QIRC 36; Treanor v State of Queensland  QIRC 146.
 Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 553.
 House v R (1936) 55 CLR 499, 503.
 Cooper v Hopgood & Ganim  QCA 114, ; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.
 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd  98 ALR 200.
 Quinlan v Rothwell & Anor  QCA 176, .
 See, eg, Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd  QIC 73; Workers' Compensation Regulator v Varga  QIRC 028, 5-6.
 Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 558; Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) reg 132.
- Published Case Name:
Mark Rea v Workers' Compensation Regulator
- Shortened Case Name:
Rea v Workers' Compensation Regulator
 QIRC 114
07 Aug 2020