Gow v Workers' Compensation Regulator
[2021] QIRC 368
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- Unreported Judgment
- Gow v Workers' Compensation Regulator[2021] QIRC 368
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Gow v Workers' Compensation Regulator[2021] QIRC 368
Gow v Workers' Compensation Regulator[2021] QIRC 368
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gow v Workers' Compensation Regulator [2021] QIRC 368 |
PARTIES: | Gow, Mitchell Lawrence (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO.: | WC/2020/34 |
PROCEEDING: | Appeal against decision of Workers' Compensation Regulator |
DELIVERED ON: | 28 October 2021 |
MEMBER: HEARD AT: | Power IC On the papers |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – where the appellant was directed to comply with directions order and failed to do so – where the appellant was directed to file materials and failed to do so – consideration of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 (Qld), r 45 Uniform Civil Procedure Rules 1999 (Qld) Workers' Compensation and Rehabilitation Act 2003 (Qld), s 552A |
CASES: | Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59 (2005); 180 QGIG 1209 Quinlan v Rothwell & Anor [2002] 1 QdR 647 Paul Scott v State of Queensland & Ors [2019] QIRC 115 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 27 FCR 388 |
Reasons for Decision
- [1]Mr Mitchell Lawrence Gow ('the Appellant') filed an appeal against a decision of the Worker's Compensation Regulator ('the Respondent') on 15 April 2020. Following the filing of the appeal, a Directions Order was issued by the Industrial Registrar on 16 April 2020, directing parties to exchange a list of documents and copies of those documents between the parties.
- [2]Subsequent to the Directions Order issued on 16 April 2020, four separate extensions to comply with the orders were requested by the Appellant and was granted by the Industrial Registrar, with the consent of the Respondent on each occasion. A new Directions Order was issued for each extension granted, vacating the previously issued Directions Order on the following dates:
- (a)Directions Order (2) on 7 May 2020;
- (b)Directions Order (3) on 1 July 2020;
- (c)Directions Order (4) on 15 September 2020; and
- (d)Directions Order (5) on 27 January 2021.
- [3]On 15 March 2021, the Appellant requested a further extension of time to comply with the orders to provide a list and copies of those documents.
- [4]On 16 March 2021, the Respondent objected to the Appellant's further extension of time request, stating:
The Respondent does not consent to the Appellant's further extension request in circumstances where the appeal was filed approximately 11 months ago (on or about 16 April 2020) and the Appellant has previously made several lengthy extension requests. As a result, there has been no progress in this appeal to date.
While we appreciate the reasons provided by the Appellant for his previously and now further extension request, the Respondent is likely to suffer prejudice as a result of any further delay. We also note that the directions order only requires that the Appellant disclose to the Respondent the documents which are in his possession relevant to the proceeding. Therefore, there is no reason why the Appellant could not now supply to the Respondent a list of the documents which are currently in his possession and supply/disclose at a later date any further medical evidence or reports from his specialist(s) once these have been received.
For the above reasons, the Respondent respectfully proposes that rather than the Appellant being granted another extension, and a further directions order being issued, that Directions Order (5) be vacated and the matter be set down for a s552A conference in order for there to be some progress in this appeal.
…
- [5]On the same day, the Industrial Registrar issued Directions Order (6), vacating Directions Order (5), and advised both parties that the matter will be allocated to a Member of the Commission to determine the next step.
- [6]On 19 April 2021, a conference was held between the parties pursuant to s 552A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) where, inter alia, the appeals process with respect to the exchange of documents and filing of materials was explained to the Appellant. The Appellant was further directed to access the Commission's Workers' Compensation Appeal Guide to which the Appellant indicated that he had already 'roughly looked through it'.[1]
- [7]On the same day, following the conference, Directions Order (7) was issued to parties, again, directing parties to the exchange of a list of documents and copies of those documents.
- [8]On 18 May 2021, a Further Directions Order was issued to parties with respect to the filing of statement of facts and contentions ('SOFC') and list of witnesses, with the first order being the Appellant's SOFC due to be filed in the Industrial Registry and served on the Respondent by 4:00pm on Tuesday, 22 June 2021.
- [9]The Appellant did not file a SOFC on 22 June as ordered, nor did he request an extension of time in order to file a SOFC at a later date.
- [10]On 24 June 2021, correspondence was sent from the Industrial Registry to the Appellant, noting that a SOFC was not filed and seeking as to whether the Appellant intended to continue with the appeal.
- [11]On 5 July 2021, a further correspondence was sent from the Industry Registry to the Appellant, requesting for an update with respect to the Appellant's intention with the matter by 4:00pm on Thursday, 8 July 2021.
- [12]On the same day, the Respondent sent the following correspondence to the Industrial Registry and the Appellant, detailing the instances of the Appellant's non-compliance:
In respect to this appeal and Mr Gow's non-compliance, the Respondent wishes to advise that:
• The Respondent requested exchange from the Appellant's list of documents via email on 4 May 2021, and again on 18 May 2021, and has received no return disclosure or a response.
• The Respondent also did not receive the Appellant's statement of facts and contentions by the due date
• The Respondent sent an email to the Appellant on 24 June 2021 requesting an update on disclosure and his statement of facts and contentions. We attached to the email the Form 27 to be completed should the Appellant wish to discontinue.
• Today (5 July 2021) I attempted to contact Mr Gow on the mobile number listed on his notice of appeal and it appears this number is no longer connected.
- [13]The Appellant failed to provide a response by 8 July 2021.
Submissions
- [14]Following the failure to comply with directions and failure to communicate his intentions with respect to the matter as requested, a Further Directions Order (2) was issued requiring both parties to provide written submissions on whether the matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').
- [15]The Appellant did not file any submissions.
Respondent's submissions
- [16]The Respondent provided a chronology detailing the events from the time the appeal was filed by the Appellant on 15 April 2020. Notably:
…
- On 4 May 2021, the appellant complied with order 1 of the directions order (7) by supplying to the respondent a copy of his list of documents.
- On 4 May 2021, the respondent sent an email to the appellant requesting copies of 12 documents from the appellant’s list of documents. The respondent has received no response from the appellant to this email.
- On 18 May 2021, the respondent made a further request to the appellant for exchange of the same 12 documents in the appellant’s list of documents. The respondent has received no response from the appellant to this email.
…
- On 24 June 2021, the respondent sent an email to the appellant requesting an update on his intention for his appeal and asking he complete the Form 27 – Request to discontinue proceeding if he had decided not to proceed.
- [17]The Respondent submits that the conduct of the Appellant in failing to respond to the Commission's and the Respondent's email correspondence, and his failure to provide any submissions in response to the Further Directions Order (2) dated 12 July 2021 indicates that he has no intention to comply with the Commission's orders or to prosecute his appeal.
- [18]The Respondent requests for the following orders to be made, that:
- (a)the appeal filed by the Appellant be dismissed pursuant to r 45(3)(a) of the Rules; and
- (b)there be no order in respect of orders.
Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld)
- [19]Rule 45 of the Rules 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).
- [20]
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.[4]
- [21]In the matter of Paul Scott v State of Queensland & Ors,[5] Vice President O'Connor stated that although the matter in Quinlan related to the application of the Uniform Civil Procedure Rules 1999 (Qld), the reasoning of Thomas JA has equal application to the matter in those proceedings. This involved the application of r 45 of the Rules.
- [22]In dealing with a similar provision under the Federal Court Rules, Wilcox and Gummow JJ stated in Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[6] 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: 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.
…
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.
- [23]The Appellant did not comply with the directions orders with respect to the disclosure of documents despite multiple extensions granted by the Commission and requests by the Respondent. The Appellant further failed to file a SOFC as directed and failed to comply with requests to provide an update as to his intention with the progression of his workers' compensation appeal. The Appellant appears to have ignored the multiple attempts by the Respondent to make contact with the Appellant in order to progress the matter.
- [24]The Appellant made no submissions in accordance with the Further Directions Order (2) regarding the potential dismissal of the matter and no further contact has been made by the Appellant.
- [25]I am of the view that the Appellant's non-compliance indicates an unwillingness to engage with the Commission to progress the matter to a further conference or hearing. I am satisfied that the Appellant's failure to comply with direction orders provides appropriate grounds to dismiss the Appellant's appeal pursuant to s 45(3)(a).
Order
- [26]I make the following Order:
- That matter WC/2020/34 is dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld).
- That there be no orders as to costs.