Rauschenbach v State of Queensland (Queensland Corrective Services)
[2023] QIRC 130
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- Unreported Judgment
- Rauschenbach v State of Queensland (Queensland Corrective Services)[2023] QIRC 130
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Rauschenbach v State of Queensland (Queensland Corrective Services)[2023] QIRC 130
Rauschenbach v State of Queensland (Queensland Corrective Services)[2023] QIRC 130
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rauschenbach v State of Queensland (Queensland Corrective Services) [2023] QIRC 130 |
PARTIES: | Rauschenbach, Gary (Applicant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO: | TD/2022/244 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 12 May 2023 |
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 the applicant was directed to file written submissions and failed to do so – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) – 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 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]On 3 November 2022, the Applicant filed a Form 12 – Application for reinstatement in the Industrial Registry (the Application).
- [2]The Application was accompanied by a Form 33 – Notice of appointment of agent which listed Gareth Clinton Rogers of Reignite Legal Pty Ltd as the Applicant's representative.
- [3]On 17 January 2023, a conciliation conference was held between the parties. The parties were unable to resolve the issues between them at the conference.
- [4]On 15 February 2023, the Applicant's representative indicated the Applicant would like to proceed to a Hearing.
- [5]On 28 February 2023, the Industrial Registry provided the parties with a copy of Vice President O'Connor's decision in Mocnik & Ors v State of Queensland (Queensland Health).[1] The Industrial Registry, on behalf of Chambers, enquired as to whether the Applicant wished to proceed to hearing in light of that decision.
- [6]On 21 March 2023, the Registry followed up the Applicant and his representative and asked that they provide a response by 4:00pm on Friday, 24 March 2023.
- [7]On 29 March 2023, I issued a Directions Order to progress the matter to Hearing in light of the lack of response from the Applicant. That Directions Order required the Applicant to file and serve a statement of facts and contentions by 4:00pm on 19 April 2023.
- [8]At 2:36pm on 19 April 2023, just hours before the first deadline, the Registry received an email from Reignite Democracy Australia attaching a Form 35 – Notice of withdrawal of appointment of lawyer or agent. The Applicant's email address was copied into that correspondence.
- [9]In light of the Applicant's agent withdrawing in this proceeding just prior to the first deadline, I issued an Amended Further Directions Order requiring the Applicant to file and serve a statement of facts and contentions by 4:00pm on 24 April 2023. The Applicant did not comply with that direction.
- [10]On 26 April 2023, the Industrial Registry emailed the parties as follows:
As the Applicant has not complied with the Directions Order issued on 29 March 2023 as amended on 19 April 2023, please find attached a further Directions Order issued today at the hand of Industrial Commissioner McLennan.
The parties are required to file submissions as to whether or not the matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) which provides:
- (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).
- [11]The email of 26 April 2023 attached a Directions Order I issued requiring submissions from the Applicant as to why the matter should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Tribunals Rules) by 12:00pm on 2 May 2023. The Applicant was also afforded the opportunity to reply to the Respondent's submissions by 12:00pm on 9 May 2023 and a further opportunity to file an application for leave to make oral submissions or further written submissions by 12:00pm on 10 May 2023. The Applicant did not comply with that Directions Order.
- [12]For the reasons that follow, I have determined that the Applicant's continued and unexplained non-compliance with the directions warrants the dismissal of this proceeding.
- [13]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 key arguments in my consideration.
Rule 45
- [14]Rule 45 of the Tribunals Rules is in the following terms:
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).
- [15]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."[2] 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.[3]
- [16]In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[4] 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.[5]
- [17]
- [18]In the exercise of my discretion under r 45 of the Tribunal Rules, I am also minded to consider the purpose of the Tribunals Rules, as set out in r 6:
6Purpose 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.
- [19]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.[9]
- [20]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[10] as the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunals Rules.
- [21]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.[11]
Consideration
- [22]Rule 45 of the Tribunals Rules clearly applies to this proceeding insofar as the Applicant failed to comply with several Directions Orders pursuant to r 45(2)(b).
- [23]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
- [24]The Applicant's default is certainly continuing, given his ongoing failure to comply with the substantive requirements outlined in the Directions Orders. The Applicant has even failed to provide an informal explanation of non-compliance and instead has blatantly disregarded the Directions Orders and correspondence from the Industrial Registry.
Inability or unwillingness to co-operate
- [25]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 is appropriate as the Applicant has already evinced disregard and an intention to not proceed with the matter. Even if I am wrong on that point, the Applicant's non-compliance demonstrates an unwillingness or inability to proceed in accordance with the Tribunals Rules.
- [26]On several occasions, the Applicant 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.
- [27]I have no doubt that the Applicant understood his obligations under the Directions Orders, as these were clearly stipulated. Notwithstanding, the clear lack of regard for the substantive directions indicates that the Applicant does not want to put enough effort into giving the Commission and Respondent the courtesy of a response.
- [28]I acknowledge that the Applicant is now a self-represented litigant. 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.[12]
- [29]In circumstances where every assistance has been provided to the Applicant, including the extension of the original Directions Order on the Commission's own volition and ensuring that he is copied into all correspondence to serve as a reminder of his obligations - non-compliance with the Directions Orders cannot be said to arise from his lack of understanding of the law.
- [30]Noting that the Applicant has failed to comply with several Directions Orders, the cumulative effect of his non-compliance is substantial enough to satisfy me that the Applicant is either unwilling to comply or for some reason is unable to do so and as a result, the Respondent's case is prejudiced.
Causing unnecessary delay, expense and prejudice
- [31]By failing to respond to the Directions Orders, the Applicant has and continues to extend the time between now and the determination of his Application. The Application was filed on 3 November 2022 – that is over six 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.
- [32]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.
- [33]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.
- [34]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.
- [35]I order accordingly.
Order
- That the proceeding is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.
Footnotes
[1] [2023] QIRC 058.
[2] House v R (1936) 55 CLR 499, 503.
[3] Cooper v Hopgood & Ganim [1998] QCA 114, 6; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.
[4] [1990] 98 ALR 200.
[5] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200, 210.
[6] [2019] QIRC 028.
[7] [2017] QIRC 061.
[8] [2019] QIRC 144.
[9] Quinlan v Rothwell & Anor [2001] QCA 176, 8.
[10] See Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.
[11] [2017] QIRC 070, [10].
[12] See Workers' Compensation Regulator v Bero [2019] QIRC 36; Treanor v State of Queensland [2019] QIRC 146.