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Mason v Workers' Compensation Regulator[2022] QIRC 202

Mason v Workers' Compensation Regulator[2022] QIRC 202

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Mason v Workers' Compensation Regulator [2022] QIRC 202

Mason, Barry Kenneth

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/23

PROCEEDING:

Workers' Compensation Appeal

DELIVERED ON:

7 June 2022

MEMBER:

HEARD AT:

ORDER:

McLennan IC

On the papers

That the appeal is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.

CATCHWORDS:

LEGISLATION:

CASES:

WORKERS' COMPENSATION APPEAL – ENTITLEMENT TO COMPENSATION – where appellant failed to comply with directions orders – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 – where appeal is dismissed

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32

Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 45

Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144

Cooper v Hopgood & Ganim [1998] QCA 114

House v R (1936) 55 CLR 499

Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200

Quinlan v Rothwell & Anor [2001] QCA 176

Seymour v Workers' Compensation Regulator [2017] QIRC 061

Smith v Workers' Compensation Regulator [2017] QIRC 070

Treanor v State of Queensland [2019] QIRC 146

Workers' Compensation Regulator v Bero [2019] QIRC 36

Workers' Compensation Regulator v Varga [2019] QIRC 028

Reasons for Decision

Background

  1. [1]
    On 8 March 2022, Mr Barry Mason (the Appellant) filed an appeal against a decision of the Workers' Compensation Regulator (the Respondent) dated 19 October 2020. The Respondent had decided to confirm the decision of the Arnott's Workers' Compensation Unit to reject the Appellant's application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).[1]
  1. [2]
    On 24 March 2021, a Delegated Officer for the Industrial Registrar issued a Directions Order with respect to the disclosure of documents.
  1. [3]
    The Appellant filed Form 29 Notices of non-party disclosure on 30 April 2021, 7 May 2021, 6 October 2021 and 5 November 2021 as well as Form 4 Applications in existing proceedings seeking an order for compliance with respect to those Notices on 2 June 2021, 27 July 2021 and 1 November 2021 respectively.
  1. [4]
    On 23 July 2021, I decided the Form 4 Application filed on 2 June 2021 on the papers.[2] The remaining Applications were either dealt with between the parties or discontinued by the Appellant.
  1. [5]
    On 4 November 2021, I held a conference to discuss procedural matters in the Appeal and also to discuss the Notices and Applications that had delayed the progression of the matter.
  1. [6]
    On 5 November 2021, I issued a Further Directions Order requiring the filing of Statements of Facts and Contentions and lists of witnesses as well as the exchange of outlines of evidence. I directed that a second conference be held once all directions had been finalised.
  1. [7]
    On 10 December 2021, the Appellant sought to file his Statement of Facts and Contentions.
  1. [8]
    On 10 January 2022, the Appellant sought to file an Amended Statement of Facts and Contentions. However, the Respondent expressed its view that the Appellant's Amended Statement of Facts and Contentions was deficient.
  1. [9]
    On 25 January 2022, I held a second conference to discuss the deficiencies in the Appellant's Amended Statement of Facts and Contentions and then issued an Amended Further Directions Order affording the Appellant additional time to file an Amended Statement of Facts and Contentions.
  1. [10]
    The Appellant filed his Amended Statement of Facts and Contentions on 21 February 2022 and the Respondent filed its Statement of Facts and Contentions on 4 April 2022.

The Directions Orders

  1. [11]
    This Appeal has been prolonged by several extension requests and Directions Orders have been amended on numerous occasions to allow the parties additional time.
  1. [12]
    On 20 April 2022, the Appellant emailed the Industrial Registry to advise:

I am asking for an extension to the directions to supply the regulator with a list of witnesses and what facts they will provide to my side of the case inquestion as the statement of facts and contentions provided to me by Stephanie killer has alot of facts included in it which I have not been provided with documentation to state these facts. It is my understanding that if the regulator has documents available to them which they are to present to the hearing I am required to receive a copy of these documents. I have not been provided with these documents. I am in the process of asking for these documents. Once I receive these documents I will be able to provide a full list of witnesses. Until I receive these documents I am unable to provide this list.

  1. [13]
    On 22 April 2022, the Industrial Registry on behalf of Chambers replied to the Appellant's correspondence as follows:

The Appellant has indicated below that the parties are working through some further disclosure at the moment. Please continue with that process as disclosure is an ongoing obligation. On that basis, Commissioner McLennan has decided to grant the Appellant an extension of time to comply with the next task in the Directions Order. The Directions Order issued 30 March 2022 is amended to read as follows:

  1. That the Appellant file in the Industrial Registry and serve on the Respondent a list of names of all witnesses to be called by the Appellant in the hearing, by 4.00 pm on 9 May 2022.
  1. That the Appellant serve on the Respondent, but not file in the Industrial Registry, an outline of the evidence to be given by each lay witness at the hearing (one A4 page per witness), as well as any expert reports that will be relied upon by 4.00 pm on 9 May 2022.
  1. That the Respondent file in the Industrial Registry and serve on the Appellant a list of the names of all witnesses to be called by the Respondent in the hearing, by 4.00 pm on 30 May 2022.
  1. That the Respondent serve on the Appellant, but not file in the Industrial Registry, an outline of the evidence to be given by each lay witness at the hearing (one A4 page per witness), as well as any expert reports that will be relied upon by 4.00 pm on 30 May 2022.
  1. Once all directions have been finalised, a third s 552A conference will be held on a date to be fixed.

(the 22 April 2022 Directions Order)

  1. [14]
    On 19 May 2022, the Respondent emailed both the Industrial Registry and the Appellant to advise:

The Respondent has not received the Appellant's list of witnesses or outlines of evidence/expert reports as were due to be provided by 4:00pm on 9 May 2022, nor has the Respondent received any communication from the Appellant in relation to when we can expect to receive such.    

  1. [15]
    The Appellant had not provided an explanation for his non-compliance with the 22 April 2022 Directions Order and had not sought an extension of time.
  1. [16]
    On 24 May 2022, the Industrial Registry replied to both the Appellant and the Respondent:

Mr Mason, your list of witnesses was due to be served and filed in the Industrial Registry and your outlines of evidence were due to be served on the Respondent by no later than 4:00pm on 9 May 2022. Considerable time has now passed and upon review, you have not complied with the Directions Order amended on 22 April 2022. Neither have you sought an extension to comply or provided any reason for the delay or in any way communicated your intentions to comply at some time in the future.

Therefore, Commissioner McLennan has issued a Directions Order seeking submissions from both parties with respect to why this appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) for failure to comply with directions. For your reference, r 45 provides:

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).

  1. [17]
    The attached Directions Order directed:
  1. That the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) as to why the Appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) by 4:00pm on 27 May 2022.
  1. That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions in response to the Appellant's submissions (of no more than three pages in length and any relevant attachments) by 4:00pm on 1 June 2022.
  1. That, if needed, the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than one page in length and any relevant attachments) in reply to the submissions of the Respondent, by 4:00pm on 2 June 2022.
  1. Unless any party files an application by 4:00pm on 3 June 2022 for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016.

  (the 24 May 2022 Directions Order)

  1. [18]
    The Appellant did not file written submissions on 27 May 2022 as directed. The Appellant did not provide an explanation for his non-compliance and did not seek an extension of time.
  1. [19]
    The Respondent filed and served written submissions on 1 June 2022 as directed.
  1. [20]
    The Appellant did not file any submissions in reply, nor did either party file an application for leave to make oral submissions or further written submissions by 3 June 2022.
  1. [21]
    The Appellant did not comply with the 22 April 2022 Directions Order nor the 24 May 2022 Directions Order. Even now, the substantive requirements of both orders remain unfulfilled. At no stage has the Appellant explained the delay or failure to comply.
  1. [22]
    For the reasons that follow, I have determined that the Appellant's continued and unexplained non-compliance with the Directions Orders warrants the dismissal of his appeal.

Submissions

  1. [23]
    The Respondent filed submissions on 1 June 2022 in accordance with the 24 May 2022 Directions Order. I have carefully considered the Respondent's submissions and have determined not to approach the writing of this decision by summarising the entirety of those submissions but will instead refer to the key arguments in my consideration.

Rule 45

  1. [24]
    In the 24 May 2022 Directions Order, the parties were directed to make submissions with respect to r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Tribunal Rules). Rule 45 was extracted and provided to the Appellant for ease of reference in the cover email attaching the Directions Order as outlined in [16] above.
  1. [25]
    The power under r 45(3)(a) of the Tribunal Rules 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."[3] 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.[4]
  1. [26]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[5] their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to r 45 of the Tribunal Rules. 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.[6]

  1. [27]
    Such reasoning was followed by O'Connor VP in Workers' Compensation Regulator v Varga[7] and Seymour v Workers' Compensation Regulator,[8] as well as by Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor.[9]
  1. [28]
    The Appellant's default is certainly continuing, given his ongoing failure to comply with the substantive requirements outlined in the Directions Orders. The Appellant has even failed to provide an informal explanation of delay and instead has blatantly disregarded the Directions Orders and correspondence from the Respondent and Industrial Registry. 
  1. [29]
    On several occasions, the Appellant was issued with correspondence from the Industrial Registry and copied into correspondence from the Respondent that ought to have served as a reminder of his obligations under the Directions Orders and a prompt to action the requirements. The Respondent submits it also made contact with the Appellant via email on 11 May 2022 and telephone on 12 May 2022.[10]
  1. [30]
    The Appellant's default imposes an unacceptable burden on the Respondent, as it is unable to meaningfully respond to the appeal and comply with the 22 April 2022 Directions Order without first considering the Appellant's list of witnesses and outlines of evidence.
  1. [31]
    By failing to respond to the Directions Orders, the Appellant has and continues to extend the time between now and the determination of his appeal. The Appellant initiated this appeal over 14 months ago. Whilst the appeal is on foot, the Respondent continues to incur the expense of defending the matter. That is a compelling reason to deal with this matter as expeditiously as possible.
  1. [32]
    On 5 November 2021, I first provided for the exchange of lists of witnesses and outlines of evidence. In that Directions Order, the Appellant was directed to provide a list of witnesses and outlines of evidence by 10 February 2022. Due to multiple extension requests, albeit from both parties, that due date was ultimately extended until 9 May 2022. Despite that extension of time, the Appellant was still unable to comply on time.
  1. [33]
    The Appellant's continuous disregard for timelines has evinced in my mind that this behaviour will be repeated, and this matter will be drawn out substantially to the Respondent's detriment. For that reason, I am not convinced that giving further chances to explain and adhere to the Directions Orders is appropriate as the Appellant has already evinced disregard and an intention to proceed with the matter on his own terms (if at all).
  1. [34]
    Although the Appellant may intend to proceed, his non-compliance demonstrates an unwillingness or inability to proceed in accordance with the Tribunal Rules.
  1. [35]
    I have no doubt that the Appellant understands his obligations under the Directions Orders with respect to time periods, as this was clearly stipulated. Notwithstanding, the clear lack of regard for the substantive directions indicates that the Appellant does not want to put enough effort into responding appropriately.
  1. [36]
    I acknowledge that the Appellant is a self-represented litigant and has been afforded many extensions of time for that reason. 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.[11]
  1. [37]
    In circumstances where every assistance has been provided to the Appellant, including the listing of two conferences in order to clarify process matters, a re-iteration of the timeline and ensuring that he is copied into all correspondence to serve as a reminder of his obligations - non-compliance with the Directions cannot be said to arise from his lack of understanding of the law.
  1. [38]
    Noting that the Appellant has failed to comply with two sets of Directions Orders, the cumulative effect of his non-compliance is substantial enough to satisfy me that the Appellant is either unwilling to comply or for some reason is unable to do so and as a result, the Respondent's case is prejudiced.
  1. [39]
    In the exercise of my discretion under r 45 of the Tribunal Rules, I am also minded to consider the purpose of the Tribunal Rules, as set out in r 6:
  1. 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.

  1. [40]
    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 (emphasis added):

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.[12]

  1. [41]
    While his Honour was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions[13] as the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunal Rules.
  1. [42]
    In Smith v Workers' Compensation Regulator, O'Connor DP (as he then was) concluded:

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.[14]

  1. [43]
    Time limits are imposed to ensure fairness between the parties as well as to ensure the expeditious advancement of the matter. Repeated failure to comply with Directions is inconsistent with r 6 of the Tribunal Rules. Further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter. 
  1. [44]
    Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under r 45 of the Tribunal Rules to dismiss the Appellant's appeal.
  1. [45]
    I order accordingly.

Order

  1. That the appeal is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.

Footnotes

[1] Letter from Mr S. May to Smith's Lawyers, 19 October 2020.

[2] Mason v Arnott's Biscuits Ltd [2021] QIRC 250.

[3] House v R (1936) 55 CLR 499, 503.

[4] Cooper v Hopgood & Ganim [1998] QCA 114, 6; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.

[5] [1990] 98 ALR 200.

[6] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200, 210.

[7] [2019] QIRC 028.

[8] [2017] QIRC 061.

[9] [2019] QIRC 144.

[10] Respondent's Submissions, 1 June 2022, 3 [10].

[11] See Workers' Compensation Regulator v Bero [2019] QIRC 36; Treanor v State of Queensland [2019] QIRC 146.

[12] Quinlan v Rothwell & Anor [2001] QCA 176, 8.

[13] See Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.

[14] [2017] QIRC 070, [10].

Close

Editorial Notes

  • Published Case Name:

    Mason v Workers' Compensation Regulator

  • Shortened Case Name:

    Mason v Workers' Compensation Regulator

  • MNC:

    [2022] QIRC 202

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    07 Jun 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Cady v Capital SMART Repairs Australia Pty Ltd [2019] QIRC 144
2 citations
Jump To
Cite 1 - [2019] QIRC 144
Cite 2 - [2019] QIRC 144
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
2 citations
Jump To
Cite 1 - [1998] QCA 114
Cite 2 - [1998] QCA 114
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 98 ALR 200
3 citations
Jump To
Cite 1 - (1990) 98 ALR 200
Cite 2 - (1990) 98 ALR 200
Cite 3 - (1990) 98 ALR 200
Mason v Arnott's Biscuits Ltd [2021] QIRC 250
1 citation
Jump To
Cite 1 - [2021] QIRC 250
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73
1 citation
Jump To
Cite 1 - [2005] QIC 73
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
2 citations
Jump To
Cite 1 - [2001] QCA 176
Cite 2 - [2001] QCA 176
Seymour v Workers' Compensation Regulator [2017] QIRC 61
2 citations
Jump To
Cite 1 - [2017] QIRC 61
Cite 2 - [2017] QIRC 61
Smith v Workers' Compensation Regulator [2017] QIRC 70
2 citations
Jump To
Cite 1 - [2017] QIRC 70
Cite 2 - [2017] QIRC 70
Treanor v State of Queensland [2019] QIRC 146
2 citations
Jump To
Cite 1 - [2019] QIRC 146
Cite 2 - [2019] QIRC 146
Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt 1) (N.S.W.) 405
1 citation
Jump To
Cite 1 - (1968) 88 W.N. (Pt 1) (N.S.W.) 405
Workers' Compensation Regulator v Bero [2019] QIRC 36
2 citations
Jump To
Cite 1 - [2019] QIRC 36
Cite 2 - [2019] QIRC 36
Workers' Compensation Regulator v Varga [2019] QIRC 28
3 citations
Jump To
Cite 1 - [2019] QIRC 28
Cite 2 - [2019] QIRC 28
Cite 3 - [2019] QIRC 28

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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