Nemet v Workers' Compensation Regulator
[2022] QIRC 49
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- Unreported Judgment
- Nemet v Workers' Compensation Regulator[2022] QIRC 49
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Nemet v Workers' Compensation Regulator[2022] QIRC 49
Nemet v Workers' Compensation Regulator[2022] QIRC 49
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nemet v Workers' Compensation Regulator [2022] QIRC 049 |
PARTIES: | Nemet, Marisa (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NOS.: | WC/2016/125 & WC/2017/90 |
PROCEEDING: | Application to dismiss |
DELIVERED ON: | 22 February 2022 |
HEARING DATE: | 14 October 2021 |
MEMBER: | Power IC |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – application to dismiss – where the appellant was directed to attend a hearing and failed to do so – consideration of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 (Qld), rr 6, 45 and 137 Uniform Civil Procedure Rules 1999 (Qld) Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32 |
CASES: | Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 27 FCR 388 Paul Scott v State of Queensland & Ors [2019] QIRC 115 Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59; (2005) 180 QGIG 1209 Quinlan v Rothwell & Anor [2002] 1 QdR 647 Tyler v Custom Credit Corp Limited & Ors [2000] QCA 178 Workers' Compensation Regulator v Varga [2019] QIRC 028 |
APPEARANCES: | Ms M. Nemet, as self-represented Appellant. Mr P.B. Rashleigh of Counsel, directly instructed by the Respondent. |
Reasons for Decision
Introduction
- [1]The Workers' Compensation Regulator ('the Respondent') has made an application to the Commission seeking an order that the appeals filed by Ms Marisa Nemet ('the Appellant') be dismissed pursuant to rr 45 and 137 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').
Background
- [2]The Appellant applied to WorkCover Queensland ('WorkCover') for compensation on 12 December 2015 for psychiatric or psychological injuries said to have occurred in the course of her employment with Hally Labels. The Appellant then sought a review of WorkCover's decision to reject this claim. The Respondent confirmed the decision of WorkCover to reject the Appellant's application. The Appellant subsequently filed an appeal against the Respondent's decision on 28 July 2016 (WC/2016/125).
- [3]On 18 May 2015, the Appellant lodged an application with WorkCover for compensation for a psychiatric or psychological injury said to be a secondary injury to her accepted physical injury. On 25 May 2017, the Appellant filed a further appeal against the Respondent's decision to confirm WorkCover's rejection of her claim (WC/2017/90).
- [4]The Commission joined both appeals to be heard concurrently on 21 July 2017.
- [5]The Appellant sought and was granted extensions of time to comply with directions orders on at least eight occasions between 2016 and 2018,[1] with each extension continually delaying the matter proceeding to hearing.
- [6]A Directions Order was issued on 9 February 2018 confirming that the hearing was set down for 8, 9 and 10 May 2018.
- [7]By 30 April 2018, the Respondent had filed and served Notices to Attend on the lay and expert witnesses it intended to call to give evidence.
- [8]The Appellant contacted the Commission on 1 May 2018 requesting an extension of two months to further prepare for the hearing, following which a notice of cancellation of the listed dates for hearing was issued by the Commission.
- [9]The matters were again listed for hearing at the Appellant's request on 9, 10 and 11 March 2020.
- [10]By 3 February 2020, the Respondent had again filed and served Notices to Attend on its witnesses to give evidence at the hearing on the listed dates.
- [11]The Appellant contact the Commission on 9 March 2020 seeking a further adjournment due to health concerns.
- [12]The hearing commenced on 10 March 2020 and medical evidence was taken from the medical witnesses before the hearing was adjourned and the remaining days vacated due to the Appellants' health issues.
- [13]The Commission sought an update from the Appellant as to the future progression of the matters on 12 May 2020, following which a resumed hearing was listed for 25, 26 and 27 August 2020.
- [14]By 17 August 2020 the Respondent had again filed and served Notices to Attend on its witnesses to give evidence. The Respondent's witnesses made arrangements to attend with one witness arranging to be off work to attend via Zoom from Victoria and the employer arranging coverage for the remaining witnesses at their expense.[2]
- [15]The first day of the hearing commenced on 25 August 2020. The Appellant did not attend and her whereabouts were unknown at that time. Hearing days 26 and 27 August 2020 were vacated and a Directions Order was issued directing the Appellant to provide written submissions by 15 September 2020 as to whether the appeals should be dismissed.
- [16]The Appellant wrote to the Commission on 12 October 2020 advising that she did not attend the hearing as she was in custody. The appeals were not dismissed and the Appellant was advised to contact the Commission when she was in a position to progress her appeals.
- [17]On 13 January 2021, the Appellant emailed the Commission, seeking to continue with the appeals.
- [18]A mention was held on 29 January 2021 during which the Appellant reported that she had a matter pending in the Magistrates Court and one in the District Court which were not resolved. The Appellant indicated that she was unable to assure the Commission that in the event that the matters were listed again for hearing, that she would in fact be in a position to attend.
- [19]On 6 May 2021, the Commission emailed the Appellant requesting an update with respect to her current position, and by reply the Appellant confirmed that she was in a position to proceed with the appeals.
- [20]A mention was held on 11 June 2021 and by Notice of listing dated 14 June 2021, a resumed hearing was listed for 3 August 2021 to 5 August 2021.
- [21]The Respondent contacted its witnesses, filed and served Notices to attend, and made application to the Commission for the provision of video evidence. The Respondent's witnesses made arrangements to attend, with one witness arranging to be off work and attend by Zoom from Victoria. Another witness, who was no longer employed with Hally Labels made leave arrangements and the employer arranged coverage for the remaining witnesses.
- [22]The hearing did not proceed due to a COVID-19 lockdown in Brisbane and the hearing was cancelled by notice of 2 August 2021.
- [23]A resumed hearing was listed for 7, 8 and 9 September 2021 and the Respondent again contacted its witnesses, filed Notices to attend, served the Notices and made application to the Commission for the provision of video evidence. The Respondent's witnesses again made arrangements to attend, with one witness arranging to be off work and attend by Zoom from Victoria. Another witness who was no longer employed with Hally Labels made leave arrangements and the employer arranged coverage for the remaining witnesses.
- [24]The hearing resumed on 7 September 2021, with the Appellant giving evidence in chief before being cross examined by the Respondent's Counsel.
- [25]At 10.00am on 8 September 2021, the Respondent was in place at the Commission along with the Respondent's witnesses, with the exception of the one witness from Victoria who was on alert to remove himself from his immediate work environment and take a call from the Commission at 10.15am to provide his evidence via Zoom. Another witness was on a night shift roster and made leave arrangements without pay to attend, a further witness had changed his child's specialist paediatric appointment to the following day and the employer had arranged coverage in the workplace for the remaining witness at its expense.[3]
- [26]The Appellant was not in attendance and her whereabouts were unknown at that time.
- [27]The Appellant phoned the Industrial Registry and advised that she would not be in attendance that day and followed up with an email at 10.10am, asking to be excused on the basis that she was unwell.
- [28]The hearing commenced after the scheduled time with the Appellant being requested to appear by telephone to explain her absence. In summary, the Appellant explained that following some shopping and breakfast she was unwell and decided it was not in anyone's best interest for her to attend should she react in an inappropriate manner. The Appellant indicated that she would attend upon her GP and provide a medical certificate however no medical certificate has been received at the Commission.
- [29]The Respondent filed an application in existing proceedings on 14 October 2021 seeking orders that both appeals be dismissed pursuant to rr 45 and 137 of the Rules and that there be no order in respect of costs.
Industrial Relations (Tribunals) Rules 2011 (Qld)
- [30]Rule 6 of the Rules provides:
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.
- [31]Rule 45 of the Rules 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).
- [32]Rule 137 of the Rules provides:
137 Failure to prosecute appeal or WHS review
- (1)This rule applies if an appellant fails to comply with either of the following—
- (a)any step required under the Act, an enabling Act or these rules;
- (b)any direction or order, including a direction or order about filing or serving a written outline of submissions or argument.
- (2)The court, the commission or a magistrate may dismiss the appeal or WHS review for want of prosecution—
- (a)at or before the hearing of the appeal or WHS review; and
- (b)either—
- (i)on its own initiative; or
- (ii)on application by the respondent.
Consideration
- [33]Rule 45 provides that the Commission may dismiss a proceeding in a number of circumstances including if a party fails to attend a hearing. Rule 137 provides that an appeal may be dismissed if an appellant fails to comply with any direction or order.
- [34]
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.[6]
- [35]In the matter of Paul Scott v State of Queensland & Ors,[7] Vice President O'Connor stated that although the matter in Quinlan related to the application of the Uniform Civil Procedure Rules 1999 (Qld) ('UCPR'), the reasoning of Thomas JA has equal application to the matter in those proceedings involving the application of r 45 of the Rules.
- [36]
…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.[10]
- [37]The Respondent referred to Tyler v Custom Credit Corp Limited & Ors ('Tyler'),[11] in which the Court of Appeal considered the following factors to be relevant to a dismissal for want of prosecution under the UCPR:
- (1)how long ago the events in the [appeal] occurred and what delay there was before litigation was commenced;
- (2)how long ago the litigation was commenced or cause of actions were added;
- (3)what prospects the plaintiff has in success of the action;
- (4)whether or not there has been disobedience of Court orders to directions;
- (5)whether or not the litigation has been characterised by periods of delay;
- (6)whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
- (7)whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
- (8)whether the litigation between the parties would be concluded by striking out the plaintiff's claim;
- (9)how far the litigation has progressed;
- (10)whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not be necessarily sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
- (11)whether there is a satisfactory explanation for delay; and
- (12)whether or not the delay resulted in prejudice to the defendant leading to an inability to ensure a fair trial.[12]
- [38]The primary issue in respect of the WC/2016/125 appeal is whether the Respondent's employment was the significant contributing factor to her psychological or psychiatric injury in accordance with s 32 of the Workers Compensation and Rehabilitation Act 2003 (Qld). The Appellant alleges in this appeal that she was the subject of bullying during her employment at Hally Labels. The factual allegations are said to have taken place between November 2014 and September 2015.
- [39]The primary issue in appeal WC/2017/90 is whether the Appellant sustained a psychological injury as a result of a physical injury that she sustained in the course of her employment in 2015. Both appeals commenced soon after the incidents were alleged to have occurred.
- [40]The medical evidence given does not in my view support the Appellant's appeals, thereby significantly limiting her prospects. Medical evidence was provided by Consultant Psychiatrists, Dr Colleen Hendry and Professor Harvey Whiteford in the form of reports and oral evidence. Dr Hendry's evidence was that, at its highest, it was possible that the Appellant sustained a secondary psychological injury as a result of her workplace injury. In cross-examination, Dr Hendry agreed that her assessment was that it was possible rather than probable.
- [41]Professor Whiteford's evidence was that he did not consider that the Appellant had sustained a psychological injury due to the physical injury to her hand, stating that the stressors were described as starting before the injury to the thumb and continuing when the Appellant attempted to return to work after the injury to her thumb. In Professor Whiteford's report he stated:
There was no information given to me by Ms Nemet or from my assessment which would indicate that she has a secondary psychiatric injury as a result of the thumb injury.[13]
...
I could find no evidence of a mental disorder having developed or been aggravated by her thumb injury in May 2015.[14]
- [42]Professor Whiteford's report summarised the Appellant's extensive history of mental health problems and confirmed that the Appellant met the DSM 5 diagnostic criteria for a borderline personality disorder. Professor Whiteford also gave evidence that the Appellant's pre-existing conditions made her more sensitive to react with anxiety and depression in response to real or perceived criticisms and other workplace stressors.
- [43]The Appellant gave evidence that was argumentative and disjointed, and under cross-examination became extremely defensive. This conduct may have been a consequence of the Appellant's unease at giving evidence, or her underlying psychological condition. In support of the first appeal, the Appellant gave evidence that she was called derogatory names in the workplace and attempted to outline the circumstances in which her employment was terminated. The Appellant's evidence did not extend to the connection between her thumb injury and her psychological condition. My reluctance to accept the Appellant's evidence as reliable is not a reflection on her honesty, only that her evidence was difficult to understand, often incoherent and general in nature.
- [44]The Appellant had finalised her case at the time that the hearing was adjourned following her failure to attend. I am mindful that the Appellant had not yet cross-examined the Respondent's witnesses, however it is my view that on the basis of the evidence of the Appellant and the medical witnesses, the Appellant was incapable of discharging the onus that the her employment or thumb injury was the significant contributing factor to her psychological injury in either appeals on the balance of probabilities.
- [45]In consideration of all of the evidence before the Commission, I consider the prospects of success in both appeals to be limited.
- [46]At the time of the last hearing adjournment, there were two remaining witnesses for the Respondent who were yet to give evidence with respect to their interactions with the Appellant during the period of November 2014 to September 2015. The memories of these witnesses will no doubt have faded over such a significant period of time, now over six years, and hence will impact the ability to ensure a fair trial.
- [47]The Respondent relied upon an affidavit of Ms Lesley Shaw, who provided a detailed chronology of the history of these appeals and confirmed that the Respondent has incurred significant costs across both appeals.
- [48]The Respondent submits that the litigation has been punctuated by delays, both in respect of adherence to direction orders and the hearing of the matter, with such delays attributable to the Appellant. I accept that the continued delays were attributable to the Appellant, with the exception of one adjournment caused by a COVID-19 lockdown.
- [49]The Respondent submits that their witnesses have been inconvenienced in this matter, and the continuing threat of having to come to court remains hanging over their heads.
- [50]I note the Respondent's submission that there was little, if any, explanation for the delays save in respect of the second trial during which the Appellant was in custody.
- [51]The Appellant attended the hearing of this dismissal application via telephone and submitted that the reason she could not attend the hearing in person was due to illness. The Appellant's submissions during this hearing related to the reason that she was not in attendance rather than on the actual dismissal application.
- [52]I am mindful that many of the delays throughout the history of this matter may be attributed to the Appellant's challenging personal circumstances. It is, however, unfair to the Respondent and their witnesses to allow the matter to continue for what will be almost seven years since the time that the incidents were alleged to have taken place.
- [53]The Court in Tyler proceeded to say at [2]:
The court's discretion is, however, not fettered by rigid rules but should take into account all the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.
- [54]I am of the view that, based on the considerations above and all of the circumstances of this matter, sufficient grounds exist to dismiss the appeals. I am satisfied that the Appellant's failure to attend the hearing provides appropriate grounds to dismiss the Appellant's appeal pursuant to r 45(3)(a) of the Rules.
Order
- [55]I make the following orders:
- The application is granted.
- That matters WC/2016/125 and WC/2017/90 are dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld).
- I make no order as to costs.
Footnotes
[1] 22 August 2016; 7 October 2016; 1 November 2016; 29 November 2016; 11 May 2017; 4 October 2017; 23 March 2018 and 1 May 2018.
[2] Affidavit of Lesley Shaw filed 14 October 2021 [59].
[3] Ibid [84].
[4] [2005] ICQ 59; (2005) 180 QGIG 1209.
[5] [2002] 1 QdR 647.
[6] Ibid 658.
[7] [2019] QIRC 115.
[8] [2019] QIRC 028.
[9] (1990) 27 FCR 388.
[10] Ibid 396.
[11] [2000] QCA 178.
[12] Ibid [2].
[13] Exhibit 2, page 5.
[14] Exhibit 2, page 22.