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Watchorn v State of Queensland (Queensland Health)[2022] QIRC 353

Watchorn v State of Queensland (Queensland Health)[2022] QIRC 353

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Watchorn v State of Queensland (Queensland Health) [2022] QIRC 353

PARTIES:

Watchorn, Shona-Yvonne

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2022/163

PROCEEDING:

Application for reinstatement

DELIVERED ON:

13 September 2022

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – whether to dismiss proceeding – where applicant appointed agent to act on her behalf – where applicant was directed to attend a conference and failed to do so – where applicant failed to comply with directions – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 – substantive matter dismissed

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 451

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

CASES:

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

Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery & Ors [2022] QIRC 302

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 7 June 2022, Ms Shona-Yvonne Watchorn (the Applicant) filed a Form 12 – Application for reinstatement (the Application). 
  1. [2]
    The Application lists Mr Alex Smith as the Applicant's representative and was accompanied by a Form 33 – Notice of appointment of agent that lists Mr Smith as the Applicant's appointed agent.
  1. [3]
    On 27 June 2022, the Industrial Registry sought the parties' availability to attend a conference. The Applicant advised that she and her representative were available between 15 – 19 August 2022.
  1. [4]
    On 28 June 2022, a notice of listing was issued setting down a conference for 16 August 2022 at 10:00am. That listing accommodated the Applicant's limited availability.
  1. [5]
    The notice of listing was issued to Mr Smith as the Applicant's appointed agent in this proceeding and stated: "A conference has been called by the Queensland Industrial Relations Commission and all names parties are required to attend as follows…" The notice outlined the details of the listed conference, clearly stipulated the location of the Commission and allowed for any person outside of Brisbane to contact the Industrial Registry in the event they desired to appear via telephone.
  1. [6]
    The Respondent party appeared at the conference on 16 August 2022. The Applicant and Mr Smith did not. My Associate dialled Mr Smith's telephone number twice but was unable to reach him. My Associate then dialled the Applicant's telephone number twice but was unable to reach her either. 
  1. [7]
    Following the conference on 16 August 2022, I issued a Directions Order via email requiring:
  1. That the Applicant and her agent provide an excuse for their non-attendance at the Conference listed for 10:00am on 16 August 2022 by no later than 4:00pm today, 16 August 2022.
  1. [8]
    My Associate advised me that:
  • Mr Smith returned her call after that email was issued;
  • she advised Mr Smith that because she had been unable to reach him and the Applicant at the scheduled conference time, an email had been sent to his email address; and
  • Mr Smith advised her that he would check his email. 
  1. [9]
    The Applicant did not comply with the Directions Order and so at 4:05pm, I issued a Further Directions Order requiring:
  1. That the Applicant 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 proceeding should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) by 4:00pm on 19 August 2022.
  1. That the Respondent file in the Industrial Registry, and serve on the Applicant, written submissions in response to the Applicant's submissions (of no more than three pages in length and any relevant attachments) by 4:00pm on 24 August 2022.
  1. That, if needed, the Applicant 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 25 August 2022.
  1. Unless any party files an application by 4:00pm on 26 August 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 (Qld).
  1. [10]
    The Applicant did not file written submissions as directed. As directed, the Respondents filed written submissions on 23 August 2022. The Applicant did not file any submissions in reply and neither party filed an application for leave to make oral submissions or further written submissions within the prescribed timeframes.
  1. [11]
    On 29 August 2022, the Applicant emailed the Industrial Registry with the following:

I have been informed by my representative yesterday Alex Smith, that the Respondent has applied for my matter to be dismissed due to a failure to attend a phone directions conference hearing.

I/We were unaware that the hearing was in-place until after the event, as I did not receive any correspondence around this matter.  My representative also did not receive the information in time as it had gone to his junk mail where he did not see it.  Please note that it was opened after the hearing date once he had searched in his junk mail.  Mr Smith's first awareness of this matter was when he missed a call from the Registry. 

I am sure you can appreciate that with no prior knowledge of the set hearing and correspondence, it was inappropriate to proceed with my matter at this time.  I would also like to point out that I have not been included with any of the correspondence around the response from the Respondent,  the Notice of Listing nor any information around my case.  In fact on the 27th of June 2022,  I actually wrote to the registry seeking advice around the lack of response from the Respondent (see email attachment), and I received a reply stating that this was the responsibility of the Respondent to serve the Employer's response to the applicant.   They have not upheld their responsibility as they have not served me directly.  It also states that all parties are to cc each other when corresponding with the Registry.   That has also not happened.   I have been left out of the email trail and was not aware of the correspondence until after the event.  You can note this on all the emails that have been sent from the Registry and Respondent from the 28th June 2022.  I have not been included in the email addresses!  I could  hardly supply an excuse for the 'non-attendance' to the Commission for the conference as per the First Orders given when I did not know about them.   One cannot apply the law  Rule 45 if the person has not been notified sufficiently and appropiately.  This is not an issue of me 'Non-complying' but blatant discrimination from being excluded in the correspondence. 

Equally, I again was unaware of the Second Directions Order to provide written submission by the 19th August 2022 as I had no knowledge of these even existing.

I therefore request another hearing date and this time that I am cc'd into the correspondence plus given adequate time to respond to the application and process as appropriate.  I am also not available on Monday's or Tuesday's.

I look forward to your reply and receiving a 'fair' hearing with appropriate information being shared with integrity and transparency.

  1. [12]
    On 31 August 2022, the Industrial Registry issued an email on behalf of Chambers in the following terms:

Dear Ms Watchorn,

With respect to your email of 29 August 2022, Commissioner McLennan notes the following:

  • The Commission, on its own initiative, directed the parties to make submissions as to whether matter TD/2022/163 should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules), for non-compliance with two Directions Orders and failing to attend a scheduled conference. The Respondent did not make that application.
  • Commissioner McLennan's associate attempted to telephone both yourself (as the Applicant) and Mr Smith (your appointed representative) at the commencement of the conference, given your non-attendance.
  • Mr Smith has acted as 'Agent' previously in the Commission – and has received correspondence from Commission email addresses.
  • Mr Smith spoke to Commissioner McLennan's Associate on the telephone at 11:25am on 16 August 2022. Commissioner McLennan's Associate advised her that during the course of that conversation, she told Mr Smith that an email had been sent to him following the conference and he stated that he would check his emails. Despite that, Mr Smith remains non-compliant with the First Directions Order to explain non-attendance at the conference on 16 August 2022.
  • It was appropriate that Commissioner McLennan advise the Respondent's representative, who had presented at the scheduled conference, what the next steps in the matter would be.
  • The reason you, as the Applicant, have not been included in correspondence nor directly sent the Notice of Listing is because you appointed an Agent to act for you in this matter. Rule 125(3) of the Rules makes clear that it is the 'representative' of the 'party' who becomes the point of contact, in such circumstances.
  • Your complaint of “blatant discrimination from being excluded in the correspondence” is a result of your free election to appoint a representative in this matter.

To assist Commissioner McLennan in deciding whether or not to dismiss TD/2022/163 under r 45 of the Rules, please see the attached Further Directions Order (2) requiring Mr Smith to provide his response to a series of questions in a sworn Affidavit.

After careful consideration of all submissions and materials provided, Commissioner McLennan will then proceed to publish a written decision.

  1. [13]
    Attached to that email was a second Further Directions Order, requiring:
  1. That the Applicant's appointed agent in this proceeding, Mr Alex Smith, file in the Industrial Registry and serve on the Respondent, an affidavit by 4:00pm on 5 September 2022 that contains answers to the following questions:
  1. a.
    When did you first become aware of the scheduled conference date and time (the Notice of Listing)?
  1. b.
    Given you have received email correspondence from QIRC email addresses in your previous capacity as 'Agent', did the emails attaching the Notice of Listing and Directions Orders in this matter go to your "inbox" or "junk mail"?
  1. c.
    What time did you check the voicemail message from the Associate to Commissioner McLennan on 16 August 2022?
  1. d.
    During your telephone conversation with the Associate to Commissioner McLennan at 11:25am on 16 August 2022, you were advised that you had been sent an email following the conference that same day. What date did you check your email for the correspondence referred to in that conversation?
  1. e.
    Having been referred to an email sent after the conference on 16 August 2022, what reasons do you give for failing to comply with the first Directions Order requiring the Applicant to provide an excuse for non-attendance at the conference?
  1. f.
    Why is non-compliance with the Directions Orders continuing?
  1. g.
    What date did you first become aware of the Further Directions Order (Second Directions Order) requiring submissions as to why matter TD/2022/163 should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld)?
  1. h.
    What date did you advise the Applicant herself that you had received the Further Directions Order (Second Directions Order)?
  1. i.
    Did you explain the effect of the Applicant appointing you as her "agent" with respect to r 125(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld)?
  1. [14]
    On 5 September 2022 at 4:55pm, Mr Smith replied:

Re request for affidavit in response to the following questions from a-i i first became aware after the scheduled meeting clearly had one been aware one would have ensured attendance and one would also have ensured the applicant was fully aware of the scheduled meeting as one would be well aware not all emails reach their destination due to multiple factors and some reach destination and are inconviently placed in ones junk folder the wonderous joys of technology and in part the corrupt system of corporate governance we are currently under rule of hence the main reason we are currently having to lodge in commisions that are biased prejadised against anything thast fails to suit the current corporate governace and its many agents with false claimed laws acts etc etc. regretably my email browser doesnt seem to support the current information required therefore am unable to answer in specific detail the questions posed by the commision. as for directions well an answer was given from myself and Miss Watchhorn as to why we failed to attend the scheduled meeting a simple but effective remedy would be to organise a new date and time for a conciliation with a read receipt as part of the directions. this would ensure all parties were in receipt and aware of such directions and able to attend.

given the near absolute corruption, prejadise and bias toward all employee applicants with regard to the current unlawful directions to partisipate in an ongoing covid-19 clinical trial vaccination program in order to maitain ones ability to earn a living by entering a site that one has allways been able to enter attend with out such an unlawful demand with threat and menace by employers agents of the current corporate gov (QLD GOVERMENT) etc.

one would not have to be wasting vast amounts of time energy on a hearing to prove the employers direction is 100% unlawful on a multitude of levels and the extrordinary risks involved in participation in said unlawful direction to participate in the ongoing covid-19 vaccination clinical trial program.Yet the  QIRC, FW etc etc all seem to have this fancyful belief its perfectly safe and lawful and reasonable with no laws or evidence to back such claims etc. yet choose to consistently rule against the employees who DECLINE to participate. the qustion to the commision is this please provide evidence to the contra of the above. without prejadise.

  1. [15]
    The Industrial Registry responded to Mr Smith's email of 5 September 2022 on behalf of Chambers as follows:

Dear Mr Smith,

You are reminded to copy all parties into correspondence sent to the Industrial Registry and Chambers.

Commissioner McLennan has read your email below and notes it does not comply with the Further Directions Order (2) issued on 31 August 2022 in several ways:

  • the email was sent 55 minutes after the deadline;
  • an affidavit was required – an email is not an affidavit; and
  • the Further Directions Order (2) set out specific questions for your response – those questions remain unanswered.

You have until 4:00pm tomorrow, 7 September 2022 to comply with the Further Directions Order (2) issued on 31 August 2022.

  1. [16]
    To date, a response has not been received.
  1. [17]
    The Applicant and Mr Smith did not comply with the notice to attend the conference on 16 August 2022, did not comply with the subsequent Directions Order requiring an explanation for their failure to appear within the required timeframe and did not comply with the Further Directions Order requiring submissions as to why the proceeding should not be dismissed. Mr Smith also failed to comply with the Further Directions Order (2) requiring affidavit evidence, even after time for compliance was extended on the Commission's initiative. Even now, the substantive requirements remain unfulfilled. Neither the Applicant nor Mr Smith have contacted the Industrial Registry to explain the latest failures to comply. 
  1. [18]
    For the reasons that follow, I have determined that the Applicant party's continued and unexplained non-compliance with the directions warrants the dismissal of this proceeding.
  1. [19]
    I have carefully considered the Respondents' submissions and have determined not to approach the writing of this decision by summarising the entirety of those submissions but will instead refer to key arguments in my consideration.

Rule 45

  1. [20]
    Rule 45 of the Industrial Relations (Tribunals Rules) 2011 (Qld) (the Tribunals Rules) is in the following terms:

45 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. [21]
    The power under r 45(3)(a) of the Tribunals 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."[1] 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.[2]
  1. [22]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[3] their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to r 45 of the Tribunals 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.[4]

  1. [23]
    Such reasoning was followed by O'Connor VP in Workers' Compensation Regulator v Varga[5] and Seymour v Workers' Compensation Regulator,[6] as well as by Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor.[7]
  1. [24]
    In the exercise of my discretion under r 45 of the Tribunals Rules, I am also minded to consider the purpose of the Tribunals 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. [25]
    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.[8]

  1. [26]
    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[9] as the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunals Rules.
  1. [27]
    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.[10]

Consideration

  1. [28]
    Rule 45 of the Tribunals Rules clearly applies to this proceeding insofar as the Applicant party failed to attend a conference for which they had been issued notice through the appointed agent to attend pursuant to r 45(1)(b) and the Applicant party has failed to comply with several Directions Orders pursuant to r 45(2)(b).
  1. [29]
    Section 451(1)(a) of the IR Act empowers the Commission to exercise its power on its own initiative. I will now consider whether I should exercise my discretion to dismiss the proceeding pursuant to r 45(3)(a) of the Tribunals Rules.

  Continuing non-compliance

  1. [30]
    The Applicant's default is certainly continuing, given her failure to attend the conference for which she received notice through her appointed representative and ongoing failure to comply with the substantive requirements outlined in the Directions Orders.
  1. [31]
    The Applicant and Mr Smith submit that their failure to attend the conference and comply with the initial Directions Orders was due to correspondence from the Industrial Registry going to Mr Smith's junk mail instead of his inbox. However, that explanation does not sufficiently account for the Applicant party's subsequent non-compliance and lack of communication with the Commission. Further, that explanation is not supported by any evidence.
  1. [32]
    Mr Smith was directed to file an affidavit supporting his explanation for non-compliance. That direction was made to afford Mr Smith the opportunity to respond to several questions and give him the opportunity to provide evidence in support of the explanation. I raised the questions because the explanation appeared peculiar. Of particular concern was the fact that the Industrial Registry had not received any correspondence from the Applicant or her representative from 28 June 2022 when they advised of their limited availability to attend a conference between 15 – 19 August 2022. It seemed peculiar that the Applicant party would not contact the Industrial Registry to ascertain the date of the conference if they did not hear from the Industrial Registry on or before 15 – 19 August 2022. Further, it seemed peculiar that Mr Smith would not check his emails straight after being advised that he and his client had missed a conference that had been listed and that an email had been sent to him. Rather, on his account, he waited nearly two weeks to search for the email and advise his client that they had missed a conference. It is highly peculiar that a representative in his position would not contact the Industrial Registry about the whereabouts of the email that he was made aware of if it had in fact been sent to his junk mail and he could not locate it.
  1. [33]
    I posed a series of questions to Mr Smith to give him an opportunity to respond, considering the peculiar set of circumstances described. Instead of responding to the questions, Mr Smith provided a written statement out of time that largely ignored the questions he was directed to answer. The failure to answer the questions in the form of an affidavit as directed reflects an indifference to the Commission's processes.
  1. [34]
    Even if the "junk mail" explanation accounted for failure to comply with the initial directions, it does not explain the later instances of non-compliance, particularly as the Applicant herself has been copied into the later correspondence.
  1. [35]
    In Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery & Ors,[11] Power IC considered:

The difficulty with this matter is that it appears to be the conduct of Mr Newman rather than that of the Complainant that gives rise to the Application and consequently, consideration should be given as to the role of representative error. I am mindful that the Complainant will be denied the opportunity to seek a remedy should this application to dismiss be granted. In circumstances in which the Complainant had actively engaged with her matter, I would consider dismissal to be an unfair outcome. However, in circumstances in which it is clear that the Complainant was aware of Mr Newman's non-compliance with the Commission's directions in January 2022, it is, in my view, that a reasonable person in her position would have dismissed the services of Mr Newman and sought alternative representation so as to prosecute her matter. In circumstances in which the Complainant continues to engage the services of Mr Newman despite the history of non-compliance, I consider that the Complainant has demonstrated wilful blindness to the lack of compliance with the Commission's directions.

  1. [36]
    In light of the analogous circumstances in this matter, I adopt Industrial Commissioner Power's reasoning.

  Inability or unwillingness to co-operate

  1. [37]
    The Applicant's continuous disregard for compliance 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 or listing further conferences is appropriate as the Applicant party has already evinced disregard for the Commission's processes. Even if I am wrong on that point, the Applicant party's non-compliance demonstrates an unwillingness or inability to proceed in accordance with the Tribunals Rules.
  1. [38]
    On several occasions, the Applicant party was issued with correspondence from the Industrial Registry and copied into correspondence from the Respondents that ought to have served as a reminder of their obligations under the Directions Order and a prompt to action the requirements.
  1. [39]
    I have no doubt that the Applicant party understood their obligations under the Directions Orders, as these were clearly stipulated. Further, the Applicant had the assistance of an appointed agent. Notwithstanding, the clear lack of regard for the substantive directions indicates that the Applicant party does not want to put enough effort into giving the Commission and Respondents the courtesy of a proper response.
  1. [40]
    In circumstances where every assistance has been provided to the Applicant party, including the appointment of an agent, the listing of a conference and several Directions Orders affording the Applicant party the opportunity to provide an explanation for failure to attend - non-compliance with the Directions Orders cannot be said to arise from the Applicant party's lack of understanding of the law.
  1. [41]
    Noting that the Applicant party has failed to comply with a notice to attend a conference and several sets of Directions Orders, the cumulative effect of the non-compliance is substantial enough to satisfy me that the Applicant party is either unwilling to comply or for some reason is unable to do so and as a result, the Respondents' case is prejudiced. 

  Causing unnecessary delay, expense and prejudice

  1. [42]
    By failing to attend the conference and respond to the Directions Orders, the Applicant party has and continues to extend the time between now and the determination of the Application. The Application was filed on 7 June 2022 – that is over three months ago. Whilst the Application is on foot, the Respondent continues to incur the expense and inevitable stress of defending the matter. That is a compelling reason to deal with this matter as expeditiously as possible.
  1. [43]
    The Applicant's default imposes an unacceptable burden on the Respondent, as they are unable to progress this matter to resolution or hearing without the Applicant's participation. The Respondent is not responsible for the continued delay and in fairness to the Respondent, this matter should not be permitted to drag on.
  1. [44]
    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 Tribunals Rules. Further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter. 
  1. [45]
    Therefore, in my opinion, the purpose of the Tribunals Rules is best fulfilled in this case by exercising the discretion under r 45 of the Tribunals Rules to dismiss the proceeding.
  1. [46]
    I order accordingly.

Order

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

Footnotes

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

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

[3] [1990] 98 ALR 200.

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

[5] [2019] QIRC 028.

[6] [2017] QIRC 061.

[7] [2019] QIRC 144.

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

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

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

[11] [2022] QIRC 302.

Close

Editorial Notes

  • Published Case Name:

    Watchorn v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Watchorn v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 353

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    13 Sep 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
Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery [2022] QIRC 302
2 citations
Jump To
Cite 1 - [2022] QIRC 302
Cite 2 - [2022] QIRC 302
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
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
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Cite 1 - [2017] QIRC 70
Cite 2 - [2017] QIRC 70
Treanor v State of Queensland [2019] QIRC 146
1 citation
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Cite 1 - [2019] QIRC 146
Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt 1) (N.S.W.) 405
1 citation
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Cite 1 - (1968) 88 W.N. (Pt 1) (N.S.W.) 405
Workers' Compensation Regulator v Bero [2019] QIRC 36
1 citation
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Cite 1 - [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

Case NameFull CitationFrequency
Kerslake v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 4472 citations
1

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