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Workers' Compensation Regulator v J & K Transport Qld[2021] QIRC 66

Workers' Compensation Regulator v J & K Transport Qld[2021] QIRC 66

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Workers' Compensation Regulator v J & K Transport Qld [2021] QIRC 066

PARTIES:

Workers' Compensation Regulator

(Applicant)

v

J & K Transport Qld

(Respondent)

CASE NO:

WC/2020/2

PROCEEDING:

Application to dismiss

DELIVERED ON:

23 February 2021

HEARING DATE:

23 February 2021

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDER:

  1. The appeal (WC/2020/2) is dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011.
  1. Each party bears their own costs of the application and the appeal.

CATCHWORDS:

INDUSTRIAL LAW – WORKERS' COMPENSATION – APPLICATION TO DISMISS – where failure of respondent to comply with directions order – where failure of respondent to attend hearings – where respondent has not taken any steps to progress appeal – whether discretion to dismiss proceeding is enlivened.

LEGISLATION:

CASES:

Industrial Relations (Tribunals) Rules 2011 (Qld), r 45

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 549

House v The King (1936) 55 CLR 499

Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59

Quinlan v Rothwell [2002] 1 QdR 647

APPEARANCES:

Mr P. B. O'Neill of counsel, instructed by Ms C. Shedden, for the Applicant.

No appearance for the Respondent.

Reasons for Decision (ex tempore)

  1. [1]
    The Workers' Compensation Regulator (the Regulator) has made an application to the Queensland Industrial Relations Commission seeking an order that the appeal lodged by J & K Transport Qld, being matter WC/2020/2, be dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the IR Rules).

Background

  1. [2]
    By way of background, on 30 September 2019, J & K Transport Qld applied for a review of WorkCover Queensland's decision to accept an application for compensation.
  1. [3]
    On 6 December 2019, the Regulator confirmed the decision of WorkCover through an internal review.
  1. [4]
    As the Appellant in the substantive appeal, J & K Transport Qld lodged a notice of appeal against the decision of the Regulator in the Commission on 7 January 2020, pursuant to s 549 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
  1. [5]
    The grounds of the appeal were stated to include that the employee was a sub-contractor, had not signed a written contract of employment, was non-compliant with certain procedures required of him and was not in a vehicle provided to him by the business at the time of the injury.

The Application

  1. [6]
    The Applicant in these proceedings relies on rule 45 of the IR Rules, which relevantly provides:

  1. 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. [7]
    An affidavit provided by Ms Carolyn Shedden, affirmed on 27 January 2021, sets out the timeline forming the basis upon which this application is made.
  1. [8]
    This affidavit, together with the application to dismiss, was emailed to the parties by the Industrial Registry on 27 January 2021. Accordingly, I am satisfied the Respondent has been sufficiently notified of these proceedings.

The Timeline

  1. [9]
    Following receipt of the notice of appeal, the Commission issued a Directions Order on 7 January 2020 requiring the parties to file and serve documents in preparation for the hearing.
  1. [10]
    On 4 March 2020, the Applicant emailed the Respondent to request their list of documents in compliance with Orders 2 and 4 of the Directions Order, which were overdue.

  1. [11]
    On 19 March 2020, the Commission emailed the Respondent to advise that they had not received the documents required of them in compliance with Order 6 of the Directions Order.

  1. [12]
    On 2 April 2020, the Applicant emailed the Commission, copying in the Respondent, to advise of the non-compliance with the Directions Order, seeking that it be vacated. The Commission responded to this email to request that the Respondent advise their intentions.

  1. [13]
    On 8 April 2020, the Commission emailed the parties to advise that the Directions Order, dated 7 January 2020, had been vacated and the matter would be placed in abeyance.

  1. [14]
    On 30 September 2020, the Commission served a Notice of Listing for Call Over on the parties in this matter.

  1. [15]
    On 14 October 2020, the Applicant's representatives attended the Call Over. Three phone call attempts were made to the Respondent during the Call Over, however ultimately, there was no appearance by the Respondent.

  1. [16]
    On 16 October 2020, the Applicant made one further attempt to contact the Respondent by post to advise of the outcome of the Call Over and provide a discontinuance form.

  1. [17]
    It is important to note that aside from the initial electronic receipt of the notice of appeal, the Respondent has not made any further communication or response to the Commission's contact attempts throughout the proceedings.

Conclusion

  1. [18]
    In their Application, the Regulator submits that the observations of President Hall in Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd[1] citing Thomas JA in Quinlan v Rothwell,[2] is equally relevant with respect to s 45 of the IR Rules. His Honour, Thomas JA had stated:[3]

…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.

  1. [19]
    The Applicant rightly observes that the conduct of the Respondent demonstrates an intention not to comply with the Commission's orders or progress the appeal.
  1. [20]
    It is submitted by the Applicant that rule 45 of the IR Rules vests in the Commission a discretion to dismiss the Respondent's appeal in circumstances where the Commission forms a view that the continuance of the proceedings is not necessary nor desirable in the public interest.
  1. [21]
    The discretion conferred under rule 45 of the IR Rules must be exercised judicially.[4] In my view, the discretion to dismiss these proceedings has been enlivened.

  1. [22]
    Having regard to the history of this matter and, in particular, the failure to comply with the entirety of the Directions Order, dated 7 January 2020, and failure to attend both the Call Over on 14 October 2020 and this hearing, the Respondent has demonstrated, in my mind, an unwillingness to proceed with the appeal.

  1. [23]
    Appropriate grounds have been formed to exercise a discretion to dismiss the proceeding. Accordingly, I dismiss the proceedings in matter WC/2020/2 pursuant to rule 45(3) of the IR Rules.

Orders

  1. [24]
    I make the following orders:
  1. The appeal (WC/2020/2) is dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011.
  1. Each party bears their own costs of the application and the appeal.

Footnotes

[1] Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59, 2.

[2] Quinlan v Rothwell [2002] 1 QdR 647.

[3] Ibid, 658.

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

Close

Editorial Notes

  • Published Case Name:

    Workers' Compensation Regulator v J & K Transport Qld

  • Shortened Case Name:

    Workers' Compensation Regulator v J & K Transport Qld

  • MNC:

    [2021] QIRC 66

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    23 Feb 2021

Appeal Status

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