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Eggers v Workers' Compensation Regulator[2024] QIRC 185

Eggers v Workers' Compensation Regulator[2024] QIRC 185

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Eggers v Workers' Compensation Regulator [2024] QIRC 185

PARTIES:

Eggers, Julie Ann

(Applicant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

B/2024/38

PROCEEDING:

Application for leave to take further action on a lapsed proceeding

DELIVERED ON:

30 July 2024

HEARING DATE:

14 June 2024 (Respondent's Submissions)

18 July 2024 (Applicant's Submissions in Reply)

HEARD AT:

On the papers

MEMBER:

Pidgeon IC

ORDERS:

The orders contained in paragraph [138] of these reasons for decision.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL LAPSED – APPLICATION FOR AN ORDER TO TAKE FURTHER ACTION ON A LAPSED PROCEEDING – where the Applicant failed to take action on her appeal for significant periods of time – where the Applicant only made progress on her appeal when prompted –  where the appeal lapsed pursuant to r 230(1) of the Industrial Relations (Tribunals) Rules 2011 (Qld) – where the Applicant claimed that delays in progressing the appeal could be explained – consideration of prejudice to the Respondent – consideration of prejudice more generally – where the application for leave to proceed is dismissed – consideration of whether s 541 of the Industrial Relations Act 2016 (Qld) is enlivened – consideration of whether there is jurisdiction to dismiss the appeal – where the appeal is dismissed – where submissions on the costs of the application are to be heard

LEGISLATION AND OTHER INSTRUMENTS:

Industrial Relations Act 2016 (Qld) ss 484, 485, 541

Industrial Relations (Tribunals) Rules 2011 (Qld) rr 230, 231

Industrial Relations and Other Legislation Amendment Act 2022 (Qld) s 65(2)

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 552A

CASES:

Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2012] QSC 413

Crisp v Queensland Law Group – A New Direction Pty Ltd [2019] QDC 156

Gambaro v Workers' Compensation Regulator [2017] ICQ 005

Jonathan v Mangera & Anor [2016] QCA 86

Jonathan v Mangera [2015] QDC 195

Reasons for Decision

  1. Introduction
  1. [1]
    Ms Eggers ('the Applicant') applies to have a previous matter before the Queensland Industrial Relations Commission ('the Commission'), WC/2019/146, an appeal against the Workers' Compensation Regulator ('the Matter'), 're-opened' pursuant to s 485 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  1. [2]
    When filing this application for the Matter to be 're-opened', the Applicant has proceeded under the misapprehension that the Matter had been struck out. In fact, the Matter had lapsed, which required the Applicant to apply for leave to proceed pursuant to r 230(2) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Tribunals Rules') rather than for leave to re-open the matter under the relevant sections of the IR Act.
  1. [3]
    Where the Applicant's submissions refer to 're-opening' the proceedings, and erroneously cite ss 484 and 485 of the IR Act, I accept that this relates to the Applicant's application for leave to proceed.
  1. [4]
    This approach has been adopted by the Respondent in its submissions.
  1. History of Proceedings – WC/2019/146
  1. [5]
    I have summarised a timeline of the Matter the subject of this application:
  • The Matter was filed on 7 August 2019;
  • The Matter was placed into abeyance on 25 October 2019 to allow the Appellant sufficient time to file an amended Statement of Facts and Contentions;
  • Almost one-year following the date the Matter was placed in abeyance, the Appellant wrote to the Commission, informing them of their intention to proceed;
  • A third Directions Order was issued to the parties on 13 November 2020;
  • A conference was held on 27 May 2021;
  • The Appellant filed an amended Statement of Facts and Contentions on 9 July 2021;
  • Upon a reminder from the Registry, the Appellant filed amended documents relevant to the Matter by 18 February 2022;
  • Between February and March 2022, there are multiple instances of communication between the parties;
  • On 9 March 2022, the Regulator invited Ms Eggers to notify the Commission and the Respondent when she was ready for the Matter was ready to proceed to hearing; and
  • After 9 March 2022, the Applicant took no further steps to advance the progress of the matter.
  1. Legal Framework
  1. [6]
    Rule 230 of the IR Tribunals Rules provides:
  1. 230
    Lapse of proceeding after at least 1 year's delay
  1. (1)
    This rule applies if–
  1. (a)
    an application starting a proceeding has been filed; and
  1. (b)
    no action has been taken by the Applicant in relation to the application for at least 1 year since the last action was taken by the Applicant in the application.
  1. (2)
    A party may only take further action on the application with an order of the court, commission or registrar.
  1. (3)
    An application for an order under subrule (2) must be in the approved form and state the following–
  1. (a)
    the steps taken in the proceeding;
  1. (b)
    an explanation for the circumstances of the delay;
  1. (c)
    the steps (including a timetable) proposed to be taken to progress the proceeding;
  1. (d)
    any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out;
  1. (e)
    the merits of the proceeding;
  1. (f)
    why the court, commission or registrar should make the order despite the delay.
  1. [7]
    Section 541 of the IR Act relevantly provides:
  1. 541
    Decisions generally
  1. (1)
    The court or commission may, in an industrial cause do any of the following—
  1. …
  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
  1. (i)
    the cause is trivial; or
  1. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest;
  1. The Application
  1. [8]
    In her Form 2 – application in existing proceedings filed in the Industrial Registry on 24 April 2024, Ms Eggers states words to the effect that she was informed by the Registry on 10 April 2024 that her matter WC/2019/146 had lapsed on 8 March 2023.
  1. [9]
    Ms Eggers recalled that at a conference[1] she attended with me on 21 April 2021, I said words to the effect that a second conference would be required before the Matter could proceed to hearing. I have reviewed the transcript of that conference. At the end of the conference I noted that Ms Eggers had requested an additional four to six weeks to consider whether:
  • she had more to add to her list of documents;
  • whether she wished to amend her list of witnesses, and;
  • the potential for a further amended statement of facts and contentions to be filed.
  1. [10]
    During the conference, I also noted that once Ms Eggers had considered those matters, the Respondent would inform the Registry how much longer it would require to "make any response necessary or do any following up".[2] I also said "once we're ready to go, and we think we're now ready to refer it to a Commissioner to set down for hearing, I think we should have another conference, just to make sure that we've covered everything off".[3] I also indicated to the parties that any subsequent conference could be conducted by phone.[4]
  1. [11]
    I have reviewed the file and note that on 18 February 2022, Ms Eggers filed an amended list of witnesses. On Wednesday 2 March, a further amended list of witnesses was filed. On 7 March 2022, a form 9B Appellant's Statement of Facts and Contentions was filed.
  1. [12]
    Ms Eggers says that she did not receive any correspondence compelling her to attend a second conference. I can confirm that I have not listed a second conference for the Matter.
  1. [13]
    Ms Eggers says that she has not received a 'show cause' notice. I can confirm that Ms Eggers has not been issued with a show cause notice because there is no statutory provision mandating this to occur.
  1. [14]
    Ms Eggers annexes Schedule 1 to her application. I have summarised her submissions in relation to each sub-reg of r 230(3) of the IR Tribunals Rules below from [15] – [26].
  1. The steps taken in the proceeding
  1. [15]
    Ms Eggers refers to a range of matters which have occurred in relation to the Workers' Compensation Review decision.
  1. [16]
    Ms Eggers refers to an email she says she sent to "to Adriana Southern WC, Tenniker Webster WCR and others in regard to WCR Reasons for Decisions dated 19 December 2018". Ms Eggers also provides some content from the written reply she says she received from Adriana Southern dated 21 January 2019.
  1. [17]
    Ms Eggers says that on 20 May 2019, she received information regarding a statement made by Ms Gayle Tindal ('the injured worker') and that Ms Eggers' request for an unredacted copy was denied.
  1. [18]
    Ms Eggers says that on or about 31 March 2021, she obtained the WorkCover Communications file and the unredacted statement of the injured worker sent to the Workers' Compensation Regulator ('the Regulator') on 23 November 2018.
  1. An explanation for the circumstances of the delay
  1. [19]
    Ms Eggers' explanation for the circumstances of the delay is that she "(has) not received any notice from QIRC to require me to show cause in writing within 21 days after the day the notice is given, why the application starting the proceeding should not be struck out."[5]
  1. [20]
    Ms Eggers says that the process has caused her severe trauma and distress. Having regard to this trauma and distress, Ms Eggers provides the following timeline:

December 2017

(sic) actually 24 November 2017, I suffered severe head injury, ( Subgaleal Haematoma and Antegrade memory loss. ) knocked unconscious. Transferred and admitted to Proserpine Hospital suffered from vertigo for many months.

July 2019.

Second severe Head injury. ( Head strike) Hospitalised Proserpine Hospital

15 August 2019.

Goanna Attack. (One may google Goanna attack Airlie Beach)

16 April 2022

Acquired Covid. Hospitalised 16 April 2022, 3 days PCR Positive. Suffered brain fog. Bedridden for two months.

October 2023:

Second Covid Positive Result.[6]

  1. The steps (including a timetable) proposed to be taken to progress the proceeding
  1. [21]
    Ms Eggers says that she is willing to attend a second conference within fourteen days and for a hearing date to be set within 60-days.
  1. Prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out
  1. [22]
    Ms Eggers does not believe the Regulator has suffered any prejudice or is likely to suffer any prejudice if she is granted leave to take further action with respect to the lapsed Matter.
  1. The merits of the proceeding
  1. [23]
    Ms Eggers submits that she engaged the injured worker in good faith and on the basis of the material facts she presented at the time of employment. With respect to the merits of the proceedings, Ms Eggers makes further submissions that:

Navionics' data tracks the vessel time, speed, direction, this cannot be changed. The vessel did not overstep the mooring, if it did, it would be evidenced in the Navionics data. Certified Copy Bureau of Meteorology regarding weather conditions are factual.[7]

  1. Why the commission should make the order despite the delay
  1. [24]
    The Applicant submits that "The Rules for Procedural Fairness have not been executed".[8]
  1. [25]
    The Applicant filed an "application to reopen" which will be taken as an "application for leave to proceed" for the purposes of this decision for the reasons outlined above from [1] to [4]. Much of the Applicant's submissions are not relevant to explaining the Appellant's delay and failure to make any progress from 9 March 2022 until the filing of this Application.
  1. [26]
    The Applicant says that she "…(has) not received any notice or show cause notice from QIRC for delay".[9]
  1. Respondent's submissions
  1. [27]
    In response to the Applicant's application filed 24 April 2024, the Respondent filed submissions on 14 June 2024[10] which were supported by the affidavit of Ms Annika Schultz, filed in the Industrial Registry on 13 June 2024.[11]
  1. [28]
    The Respondent says that the Applicant's submissions in respect of the absence of a "show cause notice" are irrelevant in circumstances where the Matter was not struck out, but rather, lapsed as a result of one-year of inaction on the part of the Appellant.
  2. [29]
    The Respondent notes that the last step taken by Ms Eggers to progress the Matter was on 9 March 2022.
  1. [30]
    The Respondent submits that the Applicant has not demonstrated a good reason warranting an order in her favour and that the application should be dismissed with costs. The Respondent says that as a consequence of that order, the Matter should also be dismissed.
  1. The steps taken in the proceeding
  1. [31]
    The Respondent says that the steps outlined by Ms Eggers (see [15] – [18] above) do not reflect a step in the proceedings and mostly occurred prior to her filing the notice of appeal on 7 August 2019.
  1. [32]
    The Respondent says that it remains unclear as to what the purported significance of the WC communications file received on 31 March 2021 is for Ms Eggers. However, the Respondent notes the reference to the unredacted statement of the worker sent to WorkCover on 23 November 2018 contained within that file. The Respondent says that the WC communications file was raised by the Applicant at the s 552A conference on 26 May 2021. Having regard to this, the Respondent says that Ms Eggers has, therefore, known about these matters since at least 31 March 2021. The Respondent says that these matters are not a "relevant step" in the proceedings, other than disclosure made by the Respondent.
  1. [33]
    The Respondent's submissions set out the steps taken throughout the life of the Matter.[12] While the list is extensive, I think it is useful to list those steps here:
  1. (a)
    The WCR Notice of Appeal for matter WC/2019/146 was filed on 7 August 2019
  1. (b)
    A Directions Order was issued by the Industrial Registry for conduct of appeal WC/2019/146 on 9 August 2019.
  1. (c)
    On 25 October 2019 the matter was placed in abeyance to allow for the Appellant to file an amended Statement of Facts and Contentions.
  1. (d)
    At the call over on 14 October 2020, after nearly twelve months in abeyance, the appellant informed the commission of its intention to proceed with the appeal.
  1. (e)
    The Registry issued a third Directions Order dated 13 November 2020.
  1. (f)
    On 22 February 2021 Legal Kitz formally withdrew as Aussie Yachting's legal representatives by filing a Form 35 (Notice of Withdrawal of Appointment of Lawyer) in the Registry.
  1. (g)
    On 19 March 2021 respondent wrote to the Registry asking for a conference in accordance with Directions Order Number 7.
  1. (h)
    On 29 March 2021 Ms Eggers contacted Ms Schultz by e-mail attaching the Regulator's List of Documents that had been served on 30 August 2019 and requested copies of numerous documents.
  1. (i)
    Those documents provided by the Regulator, included the "entire copy of the claim file", which include the insurer's Communications Report.
  1. (j)
    A Conference was held before Industrial Commissioner Pidgeon on 27 May 2021. During this conference, Ms Eggers informed of her intention to file and serve an Amended List of Documents and an Amended List of Witnesses.
  1. (k)
    On 9 July 2021 Ms Eggers served the Regulator with an amended Statement of Facts and Contentions and advised the regulator of her intention to file an amended List of Documents and List of Witnesses.
  1. (l)
    No further correspondence was received from Ms Eggers consistent with that undertaking.
  1. (m)
    after prompting from the Registry, Ms Eggers undertook to provide an updated List of Witnesses and Outlines of Evidence by 18 February 2022.
  1. (n)
    Throughout the rest of February 2022, there were a number of communications between the parties:
  1. (i)
    18 February 2022: the Appellant served an Amended List ofDocuments;
  1. (ii)
    20 February 2022: the Appellant again served an Amended List of Documents;
  1. (iii)
    22 February 2022: the Regulator sought disclosure of documents from the Appellant's Document List;
  1. (iv)
    23 February 2022: the Appellant again informed of her intention to amend the List of Witnesses;
  1. (v)
    24 February 2022: the Appellant provided requested documentcopies;
  1. (vi)
    25 February 2022: the Appellant requested documents from the Regulator; and
  1. (vii)
    28 February 2022: the Regulator responded to the Appellant's request for disclosure.
  1. (o)
    The exchanges and actions in March 2022 are:
  1. (i)
    2 March 2022: the Appellant again served an amended List ofWitnesses;
  1. (ii)
    4 March 2022: the Regulator re-sent its Outline of Evidence at the Appellant's request;
  1. (iii)
    7 March 2022: the Regulator enquired of the Appellant if all disclosure had been completed and;
  1. (iv)
    8 March 2022: the Appellant wrote that she was "unsure" if disclosure was completed.[13]
  1. [34]
    The Regulator submits that no further action was taken by the Appellant from 9 March 2022 until the filing of this application on 24 April 2024 to advance the Matter.
  1. An explanation for the circumstances of the delay
  1. [35]
    The Respondent submits that there was no requirement for Ms Eggers to receive a show cause notice from the QIRC as steps were not taken to strike out proceedings pursuant to r 231 of the IR Tribunals Rules. Rather, as discussed above at [28], the Matter lapsed pursuant to r 230 of the IR Tribunals Rules because of the Applicant's own inaction.
  1. [36]
    The Respondent submits that the "… responsibility lies with the applicant to prosecute the proceedings in a timely fashion"[14] and that she "… cannot deflect responsibility for her misconduct on to the registry".[15]
  1. [37]
    With reference to Ms Eggers' submissions regarding her head injury in 2017, her second head injury in June 2019 and the goanna attack on 15 August 2019, the Respondent says that these matters "… did not prevent the applicant from prosecuting the proceedings…"[16] until 9 March 2022.
  1. [38]
    With regard to the submissions Ms Eggers makes regarding COVID, the Respondent says that there is no evidence before the Commission about Ms Eggers acquiring COVID or its impact on her. However, the Respondent says that, even assuming   Ms Eggers was affected for two-months after having acquired COVID on 16 April 2022, she has not explained why she failed to take any steps to further the Matter after June 2022.
  1. [39]
    The Respondent also notes that both Ms Eggers and her husband are named Appellants in the Matter and neither the application nor the submissions explain why Mr Eggers, a named Appellant, could not have taken steps to prosecute the appeal.
  1. [40]
    Further, the Respondent notes that Ms Eggers' daughter had taken over conduct of the proceedings for some time and was listed as the contact on the WCR Act notice of appeal. The Respondent submits that Ms Eggers has not explained why she could not have sought assistance from her daughter to prosecute the appeal during this time.
  1. [41]
    The Respondent notes that the timing of this application coincides with action taken by WorkCover to recover monies owed by the Applicant for claim costs. The Respondent says that WorkCover's recovery proceedings were served on the Applicant on 2 April 2024.[17] The Applicant filed a defence to WorkCover's recovery proceedings on 29 April 2024.[18] This application was filed in the Industrial Registry on 23 April 2024.[19]
  1. [42]
    The Respondent says that the Statement of Facts and Contentions filed on 18 December 2020 sought revocation of the payments invoiced from WorkCover, particularised at that time to be $16,512.00.[20] The Respondent says that in this application, the Applicant has not disclosed WorkCover's recovery proceedings and "… has not been frank with the commission (sic) about those proceedings".[21]
  1. [43]
    The Respondent submits that the Commission can infer that this application is motivated by the WorkCover recovery proceedings. The Respondent submits that granting the Applicant leave to proceed could amount to an abuse of process in circumstances where the Applicant's appeal would delay the WorkCover recovery proceedings.
  1. [44]
    For the above reasons, the Respondent submits that the appropriate finding is that the Applicant has not provided a reasonable explanation for the delay.
  1. The steps (including a timetable) proposed to be taken to progress the proceeding
  1. [45]
    The Respondent notes Ms Eggers' proposal that a further conference be held. The Respondent says that at the s 552A conference on 26 May 2021, the Applicant was given considerable assistance and guidance by the Commission but despite that, the prosecution of proceedings languished.
  1. [46]
    The Respondent submits that the Applicant has not identified what benefit is expected to be enjoyed by the parties if a further conference is held. The Respondent also notes that the Applicant has not addressed whether disclosure has been completed and whether the proposed witnesses are available to give evidence.
  1. [47]
    The Respondent says that the Applicant has not demonstrated that the Matter is ready for trial, nor has she identified what steps should occur to allow the appeal to proceed.
  1. Prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out
  1. [48]
    The Respondent accepts that, prima facie, it cannot demonstrate prejudice. However, the Respondent states that the event central to the Matter is an injury sustained by the injured worker on either 3 or 5 September 2018.[22]
  1. [49]
    The Respondent states that the decisions of both WorkCover and the Regulator determined that Ms Tindal was a worker and that she sustained an injury in accordance with the provisions of the WCR Act.
  1. [50]
    The Respondent says that approximately 5 years and 9 months have elapsed since the injury was sustained and that if the Applicant is given leave to proceed, the Respondent will be "forced to take steps to defend an otherwise dormant appeal and confronts the prejudice attended with the degradation of evidence that has occurred since that time".[23]
  1. [51]
    The Respondent refers me to the matter of Jonathon v Mangera & Anor[24] where the Applicant was seeking leave to extend the limitation period to commence proceedings for damages for a personal injury sustained in a motor vehicle accident. In that matter, the Applicant had complied with pre-court proceedings by serving a notice on the insurer. The insurer had admitted liability in full on 15 November 2012. The Applicant's solicitors then lost contact with him for a period approximately 2 years and Reid DCJ found that the Applicant had chosen to absent himself from progressing his claim for over 2 years. Reid DCJ rejected the application, concluding that "the interests of justice, despite the fact that it means an end to the Applicant's admitted claim, dictate that the application be dismissed".[25] The Court of Appeal refused leave to appeal the decision.[26]
  1. [52]
    The Respondent says that despite the fact that the appeal will be brought to an end, the interests of justice dictate that the application be dismissed.
  1. [53]
    Further, the Respondent submits that if leave is given to proceed, the Regulator will need to start afresh in defending the appeal.
  1. [54]
    The Respondent refers to the matter of Crisp v Queensland Law Group – A New Direction Pty Ltd.[27] In that matter, Muir DCJ refused leave to allow the appellant to pursue an assessment of costs statement delivered by the respondent solicitors. Regarding prejudice to the Respondent, his Honour said:
  1. [59]
    It is uncontroversial that the appellant has paid the respondent's legal fees in full. However, the respondent points to the continuation of an unmeritorious application as a prejudice to it.
  1. [60]
    I accept this submission. In my view, the matters raised by the appellant going to prospects of success in reducing the amount of fees payable by her on an assessment are of little if any merit. In these circumstances there is a significant prejudice to the respondent in terms of resources, time and money, should I grant leave for what would no doubt be a protracted cost assessment process. In my view, the interests of justice in this case do not support the application for costs assessment continuing.[28]
  1. [55]
    With reference to the above, the Respondent says that similar considerations apply to this application. The Respondent submits that putting aside the merits of the appeal, if the Applicant is given leave to proceed, the regulator will now have to incur considerable expense in being required to defend the proceedings. The Respondent says that it will virtually have to start again in its defence of the appeal and will not recover those wasted costs from the Applicant.
  1. [56]
    The Respondent also cites Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors[29], where, in considering the question of prejudice to the Respondent, his Honour Applegarth J wrote:
  1. Is a fair trial still possible?
  1. [87]
    The plaintiff submits that there is no evidence from the defendants that a fair trial is not possible. It has not submitted that any potential witnesses the defendants may wish to call have died or are otherwise unavailable. Whether or not the delay has resulted in prejudice to the defendants leading to an inability to ensure a fair trial is a relevant factor. In Tyler the Court of Appeal remarked that the prejudice caused by the passing of time may be as insidious as it is subtle in that the parties cannot demonstrate what it is they have forgotten. The Court also observed that unnecessary delay in proceedings has a tendency to bring the legal system into disrepute and it decreases the chance of there being a fair and just result. The inevitable disadvantage to all parties of delay does not necessarily mean that the relevant issues cannot be fairly tired. Still, as Keane JA observed in Page v The Central Queensland University:
  1. "The Court is not in the business of preserving the opportunity to conduct solemn farces in which the parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair for either party."
  1. The defendants submit that the substantial delays in this matter are likely to have resulted in a fair trial no longer being possible. There is a risk that the defendants will have been prejudiced to such an extent that the trial will be unfair. However, I am not persuaded that a fair trial is impossible.[30]
  1. [57]
    The Respondent submits that while it cannot demonstrate that a fair trial is impossible, having regard to the above, the following is relevant:
  1. (a)
    The witnesses' evidence, particularly the applicant if she is adversely affected by her head injuries and the consequences of Covid (brain fog), as claimed;
  1. (b)
    as was stated by McHugh J, in Brisbane South Regional Health Authority v Taylor, with whom Dawson J agreed, "the longer the delay... the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.";
  1. (c)
    the respondent has not made attempts to locate Ms Tindall to advise her about this application. However, practically it would be unfair to contact her about the possibility of potentially having to give evidence in an appeal which has lapsed and speculating whether the applicant will be given leave to proceed with those lapsed proceeding;
  1. (d)
    Ms Tindal's WorkCover claim has been finalised and there is no incentive for her to assist the Regulator with its defence of the proceedings.
  1. As was stated by McMeekin J in Puppinato v D & D Machinery Pty Ltd:
  1. "… 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. ..."
  1. There would be unfairness to Ms Tindal in being taxed about her recollection of events occurring over 5 years 9 months ago, and more likely well in excess of six years by the time any hearing occurs. Understandably, there is every probability that Ms Tindal would be a reluctant witness, which will significantly prejudice the Regulator's prospects of being able to continue to defend the proceedings;
  1. (e)
    in any event, the applicant has given no evidence whatsoever about the availability of her proposed witnesses; another reason for doubting that, if given leave, the appeal can proceed in a timely fashion; and
  1. (f)
    whilst that argument might appear to contradict what is said in paragraph (c) above, it is not the respondent who is seeking the commission's indulgence for leave to proceed.[31]
  1. [58]
    The Respondent says that on the basis of its submissions, the Commission can find actual prejudice against the Respondent if the Applicant is given leave to proceed.
  1. The merits of the proceeding
  1. [59]
    The Respondent accepts that the Applicant's prospects of success cannot be accurately determined until all evidence is presented and tested before the Commission.
  1. Why the commission should (or should not) make the order despite the delay
  1. [60]
    The Respondent says that the Applicant has given no valid argument as to why the proceedings should not be struck out. The Respondent submits that it has provided valid reasons why leave to proceed should be refused.
  1. [61]
    The Respondent asserts that the interests of justice are not served in granting the application and that, on this basis, the application should be refused and the proceedings should be struck out.
  1. [62]
    The Respondent seeks costs of the application.
  1. Applicant's submissions in reply
  1. [63]
    The Applicant filed submissions in reply in the form of two affidavits of Ms Julie Eggers. It appears that Ms Eggers' affidavit is written directly in reply to each paragraph of the Respondent's submissions. I will attempt to set out the submissions using the matters listed in r 230(3)(a)–(f) of the IR Tribunals Rules as headings consistent with the approach taken by the Respondent.
  1. The steps taken in the proceedings
  1. [64]
    Ms Eggers agrees that the last step she has taken in the proceedings was on 9 March 2022. Ms Eggers says that this action was to seek a copy of WorkCover's entire file on the matter. Ms Schultz, of the Regulator, informed Ms Eggers that she could not provide that material as it was not in the possession of the Regular and that it should be requested from WorkCover. Ms Eggers wrote to WorkCover on 9 March 2022 requesting the file. This request was rejected by WorkCover for reasons set out in a letter to Ms Eggers dated 16 March 2022.[32]
  1. [65]
    In response to the Respondent's submission that the application did not make it clear why the WorkCover file is important to her, Ms Eggers states that

The WorkCover 'Entire File' consisting of 'Claims File' & 'Communications file' is significantly important as they contains (sic) multiple Misrepresentations and Apprehended Bias, relayed to The Workers Compensation Regulator, thus prohibiting the enablement of WCR to a make proper Decisions (sic) based on 'The Papers' (sic).[33]

  1. [66]
    From paragraphs 15 to 26 of her affidavit, Ms Eggers sets out a number of, what she understands to be, misrepresentations or errors in the WorkCover file.
  1. [67]
    Ms Eggers agrees with the Respondent's submission that she received the WorkCover communications file on 31 March 2021. Ms Eggers also agrees that she discussed the communications file at the 552A conference on 26 May 2021.
  1. [68]
    Ms Eggers denies that the documents provided by the Regulator included the entire copy of the claim file.[34]
  1. [69]
    Regarding the failure to exercise any steps in the proceedings following 9 March 2022, Ms Eggers says she was 'Incapable of exercise due to procedural fairness being denied to the Appellant'.[35]
  1. An explanation for the circumstances of the delay
  1. [70]
    In response to the Respondent's submission that there is no evidence before the Commission regarding Ms Eggers being diagnosed with COVID-19 or its impact on her, Ms Eggers provides several medical records, documents and certificates[36] and states that she is "willing to give to the Industrial Relations Commission full access to Australian Government "My Health Record"".[37] Ms Eggers also says that she "will swear under oath I acquired second covid in October 2023".[38]
  1. [71]
    Ms Eggers says that she "… consecutively acquire(d) in March/April/May 2022 Pseudomonas, Community Acquired Pneumonia (Moderate) COVID 19".[39] Ms Eggers says that her condition deteriorated over those months and she refers to exhibit 3 of her affidavit, which is a photograph of a positive COVID-19 rapid antigen test that she claims she took on 5 May 2022. Ms Eggers says that she received a medical certificate stating that she was suffering from COVID-19 and Bronchitis on 16 May 2022.[40]
  1. [72]
    Ms Eggers says that later in 2022, she was still severely ill and sought care from a "Doctor at Robina" who diagnosed Ms Eggers as being "Diabetic Type 2".[41]
  1. [73]
    Ms Eggers also says that in November 2022 she endured chronic low back pain due to degenerative disease in her back.[42] Later, in May 2023, Ms Eggers submits that she was diagnosed with a "Subacute posterior acetabular wall fracture, with periosteal reaction 12 mn (sic) length".[43]
  1. [74]
    Ms Eggers says that since April 2022, she has had to "engage in Psychological Therapy".[44]
  1. [75]
    As to the Respondent's submission that Ms Eggers has not explained why her husband could not assist her to progress the appeal, Ms Eggers says, "Mr Eggers has serious, co morbidities (sic) and English is not his first language".[45]
  1. [76]
    In reply to the Respondent's submission that Ms Eggers' daughter had previously supported her to progress the appeal, Ms Eggers says, "I have the right to not burden my daughter any further with this matter".[46] Ms Eggers says that "Sending the apprehended bias records to my daughter's law firm would have caused humiliation".[47]
  1. [77]
    Ms Eggers says that she "… could not prosecute the appeal, as all appeals for afforded procedural fairness were not executed".[48]
  1. [78]
    In response to the Respondent's submission that the timing of this application coincides with action taken by WorkCover to recover monies owed by the Applicant for claim costs, Ms Eggers says "I phoned QIRC to find out what was going on. I was not aware or given notice appeal (sic) had lapsed".[49]
  1. [79]
    Ms Eggers disagrees that she has not been frank and disclosed WorkCover's recovery proceedings to the Commission in her application. Ms Eggers says, "Email cc'd sent to Annika Schultz alerting her to situation".[50]
  1. [80]
    In reply to the Respondent's submission that she has not given a reasonable explanation for the delay, Ms Eggers says, "Throughout this entire process, from day one, being 14 September 2024 (sic), my rights, interests and legitimate expectations in dealing with a Qld Government Department have not been met".[51]
  1. [81]
    Ms Eggers says that the reason she did not take any action until prompted by the Registry to provide an updated list of witnesses and outlines of evidence on 18 February 2022 is that "I was still waiting to (sic) true documents to be provided to me".[52]
  1. The steps (including a timetable) proposed to be taken to progress the proceeding
  1. [82]
    Ms Eggers says that a further conference will be of benefit and will "raise and acquire a better understanding of the true nature of the matter".[53]
  1. [83]
    In reply to the Respondent's submission that the Applicant has not addressed whether full disclosure has been completed and whether the proposed witnesses are available to give evidence, Ms Eggers says:

Full Disclosure cannot be admitted (sic) until WorkCover Qld provides a true copy of the dated & consecutive ordered 'Entire Claim File' (sic) This process has been affected my rights (sic), interests & legitimate exceptions.[54]

  1. [84]
    Further, Ms Eggers submits that four witnesses have all confirmed in writing that they are willing and able to lead evidence at a hearing of the Matter.[55]
  1. [85]
    Should Ms Eggers' application be successful, she submits that "Full Disclosure will be provided within 14 days".[56] Ms Eggers says that one step that should occur is that "an authority obtain a warrant for the true records held by Work Cover Qld and provided (sic) to all parties involved".[57]
  1. Any prejudice suffered or likely to be suffered by another party to the proceeding if the application is not struck out
  1. [86]
    Ms Eggers says that it is in the interests of natural justice and in the public interest that the full facts of this matter need to be heard.[58] Ms Eggers says that the decisions of both WorkCover and the Regulator have not followed the rules of procedural fairness.[59]
  1. [87]
    Ms Eggers disagrees with the Respondent's submission regarding the degradation of evidence that has occurred over the five years and 9 months that has elapsed since the injury was sustained. Ms Eggers says that she has persevered all documentation and "…No degradation of facts & evidence has been executed".[60]
  1. [88]
    Replying to the Respondent's submissions with regard to Jonathan v Mangera & Anor, Ms Eggers says that she has "not been afforded procedural fairness from day 1, being 14 September 2018".[61] Ms Eggers says that she has "… not chosen to absent herself" and that despite the decision in Jonathan v Mangera & Anor, "the circumstances of each individual case need to be addressed".[62]
  1. [89]
    While the Respondent says that even though the appeal will come to an end, the interests of justice dictate that the appeal must be dismissed, Ms Eggers says:[63]

If the true facts were known to The Workers Compensation Regulator at the times (sic) of making the Decisions, the Decisions would have made (sic) on fundamentally lawful grounds. The 'Entire Claim File (sic) is not a true account & contains serous misrepresentations and apprehended bias.[64]

  1. [90]
    In reply to the Respondent's submission that if leave is given to proceed with the appeal it will find itself having to start afresh with its defence to the appeal, Ms Eggers says "It is up to the Defence to acquire an honest, true and consecutive ordered copy of the 'Work Cover Qld 'Entire File' …".[65] Ms Eggers notes correspondence she received from Ms Schultz stating that she could not provide Ms Eggers with the information as the Regulator did not hold it.[66]
  1. [91]
    Ms Eggers seeks leave to be heard by an unbiased decision maker. Ms Eggers says that the Workers Compensation Regulator has not been provided with the true facts by WorkCover Qld to enable the Regulator to achieve a lawful conclusion. Ms Eggers says that a "true copy", rather than one that is "corrupted" needs to be provided in the interests of natural justice.[67] Further to this point, Ms Eggers notes that "all date redactions at the top of correspondence throughout the "Claim File (sic) are not included".[68]
  1. [92]
    Ms Eggers says that a fair hearing is possible. Ms Eggers repeats that she has retained all material evidence and repeats that WorkCover Qld is under an obligation to submit true records. Ms Eggers denies that the content on an ATO form which identified that the injured worker was an employee was provided by her.
  1. [93]
    With regard to the Respondent's submissions regarding the injured worker, Ms Eggers says "Ms Tindal's Claim for Compensation & 5% permanent disability has been made on misrepresentations and lack of procedural fairness & apprehended bias. Ms Tindal & all parties need to account (sic) for their actions".[69]
  1. [94]
    Regarding the Respondent's submissions that the injured worker may be a reluctant witness, Ms Eggers says "Ms Tindal could be subpoenaed".[70] Ms Eggers says that her witnesses have confirmed in writing that they are willing and able to be called as witnesses.[71]
  1. The merits of the proceeding
  1. [95]
    Ms Eggers agrees with the Respondent's submission that her prospects of success cannot be determined until all evidence is presented and tested before the Commission.
  1. Why the court, commission or registrar should make the order despite the delay
  1. [96]
    Ms Eggers says that the Commission should not strike out the application because the "true" entire WorkCover file has been withheld. Ms Eggers also refers to "fraudulent ATO tool answers, apprehended bias, & denying statements" which she says have "affected (her) rights, interests & legitimate exceptions (sic)".[72]
  1. [97]
    While the Respondent denies that Ms Eggers has provided a valid argument as to why proceedings should not be struck out, Ms Eggers says "The valid argument is, The Rules for Procedural Fairness have not been executed".[73]
  1. Should the Commission make an order that further action may be taken on the file pursuant to r 230(2)?
  1. The matter lapsed and there was never a requirement that a 'show cause notice' be issued to the Appellant
  1. [98]
    Ms Eggers' submissions appear to simultaneously accept that her appeal had lapsed rather than been dismissed or discontinued, while also maintaining that she would have responded to any 'show cause notice' she may have received. To provide Ms Eggers with clarity on this matter, I will state here that there was, at no time, any action taken by the Respondent or by the Registry which would give rise to the issuing of a show cause notice. The appeal filed by Aussie Yachting lapsed under r 230 of the IR Tribunals Rules after Aussie Yachting failed to take action on the Matter for a period of 12-months.
  1. Aussie Yachting was responsible for progressing the appeal and seeking a second conference to program the matter for hearing
  1. [99]
    The Aussie Yachting appeal was allocated to me for case management prior to the matter lapsing and being returned to the Registry. I have reviewed the transcript of the conference held on 26 May 2021 and it clearly states that a further conference would be held once all steps regarding the filing of amended statement of facts and contentions, any response and all disclosure, witness lists and outlines of evidence had been exchanged. It is sometimes the case that the Regulator makes that contact to request the matter be listed, however it was the Appellant's responsibility to seek a second conference (or to ask the Respondent to do so on behalf of both parties) if it wished to progress the appeal.
  1. [100]
    Following that conference, on 9 July 2021, Ms Eggers filed and served on the Respondent an amended Statement of Facts and Contentions and advised the Commission and the Respondent of her intention to file an amended List of Documents and List of Witnesses.
  1. [101]
    It appears that Ms Eggers did not, at least at that time, file the List of Documents or List of Witnesses. The next step taken by Ms Eggers was prompted by the  Registry's email to the parties on 15 February 2022. This led to Ms Eggers taking some action to progress the appeal throughout February and March 2022.
  1. [102]
    The last step taken by Ms Eggers regarding the appeal filed by Aussie Yachting was on 8 March 2022 when she informed the Respondent on 8 March 2022 that she was "unsure" if disclosure was completed.
  1. …
  1. Regarding documents: As requested in email to you on 25 February 2022 requesting:
  1. 1.
    'Application for Compensation' & Employers Report made by Gayle Tindal pertaining to Claim S 18SQ54 l 577 & the date & time lodged.
  1. 2.
    'Application for Compensation' made by Ms Tindal to Work Cover on 13 September 2018 for an alleged injury on 13 July 2018 & time lodged.
  1. 3.
    'Application for Compensation' allegedly created ( per WC Communication File Notes pages 52 & 53) at 2.12 pm on 13 September 2018 by Janine Watson for an alleged date of injury being 3 September 2018.
  1. In reference to the above you responded in your email of 28 February 2022: Quote, "I cannot provide you the other documents you have requested as I do not hold them. You would need to contact WorkCover Qld for copies of these documents."
  1. The 'WC Entire File' you sent me on 30 March 2021 contains multiple misrepresentations & highly defamatory allegations. Work Cover has continuously not followed procedural fairness & have not responded to my emails for information. I will again request a true copy of the 'WC Entire File' from WC in particular, but not limited to the multiple 'Applications for Compensation' made to WC by Gayle Margaret Tindal & WC, for which I am entitled to be served.
  1. Re your comment, "Regarding the copies of documents and the further photographs you have attached, could you confirm if you have now provided all photographs, or are there more that you intend to provide? I am trying to ascertain if this disclosure has now been completed or you are still in the process of gathering documents."
  1. I can not (sic) ascertain the disclosure has been completed due to the 'WC Entire File' not being received to date & I reserve the right to provide more of Ms Tindal statements/photographs & disclosure of further documents.
  1. I am sorry this matter has gone on for so long & we have both done our best to assist WC & WCR at all times. This matter has also now been referred to the CCC & Commissioner of Police for investigation.
  1. In my opinion, the vile, abhorrent, defamatory, false claims & misrepresentations that have been made without lawful excuse against respectable decent elderly members of society, is  inhumane & unconscionable conduct.
  1. Kind regards,
  1. Julie Eggers.[74]
  1. [103]
    I accept, based on the material before me, that following an exchange between Ms Eggers and Ms Schultz of the Regulator on 9 March 2022, Ms Eggers was invited to notify the Commission (and the Respondent) when she was ready for the Matter to proceed to hearing. This never occurred.
  1. [104]
    I understand from Ms Eggers' affidavit and the accompanying medical information that she has dealt with some health issues. However, that information does not satisfy me that Ms Eggers' health issues rendered her incapacitated to the extent that she was unable to contact either the Respondent, or the Industrial Registry to explain that she was unable to progress the Matter due to ill health.
  1. [105]
    Ms Eggers' daughter, a solicitor, was previously assisting Ms Eggers with the appeal. While I understand Ms Eggers has asserted that she has a "right" not to "bother" her daughter with the appeal, this is a choice that Ms Eggers made and if she required the assistance of her daughter to progress the appeal, this is a choice she made to her detriment. It is unclear to me what Ms Eggers means when she refers to the "apprehended bias records" which would cause "humiliation" if sent to her daughter's law firm. Any material sent to Ms Eggers' daughter's law firm could have been sent confidentially.
  1. [106]
    It appears to me that Ms Eggers was capable of, at the least, taking time in the year following 8 March 2022 to inform the Registry that she was struggling to progress her appeal. Furthermore, if Ms Eggers was confused or frustrated that her appeal was not progressing during this time, she could have requested the Registry advise her of when a second conference would be held. Ms Eggers failed to do either of these things.
  1. [107]
    I also note that in the correspondence Ms Eggers sent to Ms Schultz quoted above at [102], she referred to several actions she was taking. One was that she was going to seek further documents from WorkCover. Ms Eggers also told Ms Schultz that she was progressing matters through the "CCC"[75] and the "Commissioner of Police". It was entirely open to Ms Eggers to contact the Registry and inform the Commission that she was in the process of seeking documents or additional information from WorkCover, the CCC and the Commissioner of Police. She chose not to do this.
  1. [108]
    The responsibility for progressing the Matter and ensuring it would not lapse was entirely one for Ms Eggers and Aussie Yachting. The history of the Matter indicates that most action taken by Aussie Yachting to progress its appeal occurred after being prompted.
  1. [109]
    It appears clear to me that the most recent prompt for Ms Eggers to progress her appeal was that WorkCover was taking action to recover money from Aussie Yachting. The material before me demonstrates that on 2 April 2024, WorkCover's recovery proceedings were served on the Applicant, in which WorkCover is claiming $30,775.80 plus interest and costs.[76] This amount represents compensation paid to the worker by WorkCover in circumstances where Aussie Yachting was not insured and did not remain insured with WorkCover in accordance with s 48 of the WCR Act.[77]
  1. [110]
    Ms Eggers may have had contact with Ms Schultz regarding the recovery proceedings, however she did not refer to those proceedings in her application and I have no reason to believe that she would have made submissions acknowledging the existence of those ongoing proceedings had the Respondent not raised them in its reply to the application. To that extent, I accept the Respondent's submissions that Ms Eggers has not been frank with the Commission regarding the reasons for her application to take further action on the appeal. I am not satisfied that Ms Eggers would have sought to take further action on WC/2019/146 had the WorkCover recovery proceedings against Aussie Yachting not been commenced.
  1. [111]
    I am satisfied that Ms Eggers has not demonstrated any reasonable or plausible explanation for the circumstances of the delay or her failure to take any action to progress the matter since 9 March 2022.
  1. Prejudice to be suffered
  1. [112]
    The argument put forward by the Respondent regarding the long passage of time since the injury was sustained is compelling. The injury occurred in early September 2018. Even if I were to allow the appeal to proceed, it will not be heard until late 2024 or potentially early in 2025, some 6 to 7 years following the date of injury.
  1. [113]
    Ms Eggers has not been diligent in progressing the appeal. While she argues that she has not "absented herself" from progressing the claim, the protracted timeline of actions she has taken to progress the claim suggests otherwise. Even in the earliest stages of this matter, as demonstrated by her actions on 25 October 2019, Ms Eggers requested that the matter be placed in abeyance to allow her additional time to file an amended Statement of Facts and Contentions. It was only at a call-over on 14 October 2020, nearly one-year later, that Ms Eggers informed the Commission that she wished to progress the appeal.
  1. [114]
    At all times during the life of this matter, it appears that the Regulator have promptly responded to Ms Eggers' correspondence when she was engaged with the matter and making efforts to progress the appeal. The Regulator has undertaken all steps required of it as a model litigant. There is a lot of work required to be undertaken to defend an appeal. I accept the Respondent's argument that following the extensive period Ms Eggers has allowed the matter to remain dormant, it will incur considerable expense in reviving its defence of the appeal.
  1. [115]
    If Ms Tindal were to be a reluctant witness, the Regulator's prospects of defending the appeal would be significantly prejudiced. Further, I accept the submissions of the Respondent that Ms Tindal was informed over a year ago that the matter had lapsed and her claim has been finalised.[78] Even if Ms Tindal were willing and able to attend the Commission to give evidence at a hearing of the appeal, the circumstances surrounding the issue will have occurred some 6 to 7 years prior to a hearing. Consequently, I am concerned about the fairness to Ms Tindal in circumstances where she has been informed that her claim was finalised and that her previous employer's appeal against her claim had lapsed. Ms Tindal is entitled to get on with her life.
  1. [116]
    I understand that Ms Eggers has contacted her witnesses to seek statements from them regarding their willingness to attend and give evidence if leave is allowed to proceed with the appeal. However, the list of witnesses has changed over time and I am not satisfied that the witnesses Ms Eggers has contacted and named in her affidavit represent the full list of those she would intend to call. Further, Ms Eggers has listed Mr Eggers as a witness for the Applicant. According to Ms Eggers' affidavit, Mr Eggers has "serious co morbidities". It would follow that this would have a conceivable impact on his capacity to give evidence at the hearing.
  1. [117]
    Ms Eggers' submissions appear to largely fixate on her allegation that she does not have the "full" WorkCover file. I am satisfied that whatever she means by the "full Workcover file", the Respondent has disclosed all requested documents in its possession.[79] Ms Eggers appeared to accept Ms Schultz's advice to her that the file was not in the possession of the Respondent. This appears to be what prompted her to write to WorkCover on 9 March 2022.
  1. [118]
    On 16 March 2022, WorkCover wrote to Ms Eggers and informed her that under WorkCover's employer release policy, it could not release to her the information she was seeking. The letter informed Ms Eggers that she was entitled to lodge an application under the Right to Information Act 2009 but that under the Information Privacy Act 2009 there may still be some information which cannot be released. Ms Eggers was invited to contact WorkCover if she had any questions.
  1. [119]
    There is no information before me or included in Ms Eggers' affidavit to indicate that she took further steps to lodge an application under the relevant Act. Further, there is no information before me or included in Ms Eggers' affidavit to demonstrate that she contacted WorkCover to ask further questions.
  1. [120]
    I understand that Ms Eggers disagrees with the ATO information which appears to establish that the injured worker was an employee of Aussie Yachting. I also understand that Ms Eggers disputes the content of the WorkCover file. However, the place to test those matters was at a hearing of the appeal. If Ms Eggers believed that information contained in the WorkCover report or file was wrong or, as she alleges, "fraudulent", those were arguments for her to make before the Commission.
  1. [121]
    If Ms Eggers thought other parties held documents Ms Eggers believed she required to conduct her appeal, it was a matter for her, rather than the Respondent, to seek production of those documents.
  1. The steps proposed to be taken to progress the proceeding
  1. [122]
    I cannot see any utility in a further conference of the matter. Ms Eggers has extensively canvased her reasons for appeal in her filed material and at the conference before me in 2021. The most appropriate place for Ms Eggers to explore what she says is the "true nature of the matter" would have been at a hearing, however, Ms Eggers' own inaction delayed the appeal causing it to lapse. I have no confidence that listing a further conference or indeed listing dates for hearing are appropriate ways forward when Ms Eggers maintains that full disclosure has not occurred despite there being no credible evidence to support this assertion.
  1. The merits of the proceeding
  1. [123]
    I am unable to comment on the merits of the proceeding as the evidence has not been presented or tested before the Commission.
  1. Should the commission make the order despite the delay?
  1. [124]
    Ms Eggers has repeatedly referred to being denied natural justice and procedural fairness. A review of the filed material and submissions does not cause me concern that the Respondent in this matter has denied the Applicant natural justice or procedural fairness. Further, it appears that in the years since Aussie Yachting first filed the appeal, despite multiple opportunities or prompting from the Registry to progress the Matter, it has repeatedly stalled due to a decided lack of action taken by Aussie Yachting.
  1. [125]
    For the reasons given above from [98] to [124], I am satisfied that it is not in the interests of justice to order that further action may be taken on the lapsed appeal.
  1. [126]
    Pursuant to r 230(2), the application for leave to proceed with the lapsed appeal matter is dismissed.
  1. Should WC/2019/146 be struck out pursuant to s 541(b)(ii) of the IR Act?
  1. [127]
    The Regulator submits that the substantive matter should also be struck out. Whether I have jurisdiction to order that the lapsed Matter be struck out under s 541 of the IR Act is discussed from [128]–[132].
  1. [128]
    Section 541 of the IR Act provides that the Commission may, in an industrial cause "dismiss the cause, or refrain from hearing the cause", if the Commission considers further proceedings by the Commission are not necessary or desirable in the public interest.[80]
  1. [129]
    In Gambaro,[81] President Martin J declined to dismiss an appeal under s 541 on the basis that s 541 was only enlivened by an "industrial cause", which was defined, at the time, as an "industrial dispute" or an "industrial matter".[82] His Honour said "It is well arguable that a claim for workers' compensation does not fall within this definition and, consequently, the discretion under s 541 is not enlivened".[83]
  1. [130]
    From 3 November 2022, the definition of "industrial cause" in sch 5 of the IR Act was expanded to include two other categories or matters:

industrial cause includes –

  1. an industrial matter; and
  2. an industrial dispute; and
  3. a work-related matter under the Anti-Discrimination Act 1991; and
  4. another matter within the jurisdiction of the commission.[84]
  1. [131]
    I am satisfied that a Workers' Compensation Appeal is captured by the revised sch 5 definition of "industrial cause" following its amendment in late-2022. In particular, Workers' Compensation Appeals are congruent with sub-s (d) which refers to "another matter within the jurisdiction of the commission".
  1. [132]
    Having determined that the discretion under s 541 is enlivened, I will consider whether the circumstances of this matter warrant the exercise of the discretion to dismiss the cause on the basis that further proceedings are not necessary or desirable in the public interest.
  1. [133]
    For the reasons I have given above, I am satisfied that leave should not be granted to take any further action on the lapsed appeal.
  1. [134]
    The practical effect of my order under r 230 is that no further action can be taken on WC/2019/146. While the Matter is lapsed, but not struck out, there remains the potential for it to become a 'zombie file', in the sense that it can be the subject of further and ongoing applications under r 230 of the Industrial Tribunals Rules. Given the history of the Matter and the issues with the conduct of the Matter with reference to r 230(3)(a)–(f) of the Industrial Tribunals Rules, which I have considered throughout this decision, I do not think it is necessary or desirable in the public interest that further applications of that nature be open to the Appellant.
  1. [135]
    On that basis, I will exercise the discretion afforded by s 541 of the IR Act to dismiss WC/2019/146.
  1. [136]
    Matter WC/2019/146 is struck out pursuant to s 541(b)(ii) of the IR Act.
  1. [137]
    The Respondent seeks costs for this application. I will issue directions to hear the parties on this matter.
  1. Order
  1. [138]
    I make the following orders:
  1. B/2024/38, the application for leave to take further action on the lapsed appeal matter, is dismissed.
  1. Pursuant to s 541(b)(ii), WC/2019/146, the lapsed Matter, is dismissed.
  1. I will hear the parties as to the costs of this application.

Footnotes

[1] Specifically, Ms Eggers attended a conference provided for under s 552A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act').

[2] T1-8 LL46–47

[3] T1-9 LL1-3

[4] T1-8 L36–T1-9 L8.

[5] Applicant's application filed 24 April 2024, 6.

[6] Ibid 6–7.

[7] Ibid 8.

[8] Affidavit of J Eggers filed 18 July 2024 [99].

[9] Applicant's application (n 5) 8.

[10] Respondent's submissions filed 14 June 2024.

[11] Affidavit of A Schultz filed 13 June 2024.

[12] Respondent's submissions (n 10) [17]–[19].

[13] Ibid 3 – 5.

[14] Ibid [22].

[15] Ibid [22].

[16] Ibid [25].

[17] Affidavit of A Schultz (n 11) Ex-17.

[18] Respondent's submissions (n 10) [35].

[19] Ibid [36].

[20] Ibid [37].

[21] Ibid [38].

[22] Ibid [46]–[47].

[23] Ibid [49].

[24] [2015] QDC 195.

[25] Ibid [26].

[26] Jonathan v Mangera & Anor [2016] QCA 86.

[27] [2019] QDC 156.

[28] Respondent's submissions (n 10) [56] (citations omitted).

[29] [2012] QSC 413.

[30] Respondent's submissions (n 10) [58] (citations omitted).

[31] Respondent's submissions (n 10) [59] (citations omitted).

[32] Affidavit of J Eggers (n 8) Ex-1.

[33] Ibid [13].

[34] Ibid [31].

[35] Ibid [35].

[36] Ibid Ex-3.

[37] Ibid [44].

[38] Ibid [48].

[39] Ibid[67]; Ex-3.

[40] Ibid [69]; Ex-3.

[41] Ibid [70].

[42] Ibid [71].

[43] Ibid [72].

[44] Ibid [73], Ex-3.

[45] Ibid [45].

[46] Ibid [47].

[47] Ibid [50].

[48] Ibid [49].

[49] Ibid [51].

[50] Ibid [56].

[51] Ibid [59].

[52] Ibid [75].

[53] Ibid [76].

[54] Ibid [77].

[55] Ibid [77]–[78].

[56] Ibid[77].

[57] Ibid [80].

[58] Ibid [82].

[59] Ibid [83].

[60] Ibid [84].

[61] Ibid [85].

[62] Ibid [86]–[88].

[63] Ibid [89].

[64] Ibid.

[65] Ibid [90].

[66] Ibid.

[67] Ibid [93].

[68] Ibid.

[69] Ibid [95].

[70] Ibid

[71] Ibid Ex-4; [95].

[72] Ibid [98].

[73] Ibid [99].

[74] Affidavit of A Schultz (n 11) Ex-11.

[75] I assume Ms Eggers makes reference to the Crime and Corruption Commission when she cites the "CCC" in her submissions.

[76] Affidavit of A Schultz (n 11) Ex-17.

[77] Ibid.

[78] Ibid Ex-15.

[79] Ibid Ex-6.

[80] s 541(b)(ii) IR Act 2016

[81]Gambaro v Workers' Compensation Regulator [2017] ICQ 005 ('Gambaro').

[82] Industrial Relations Act 2016 sch 5.

[83] Gambaro (n 81) [6].

[84] The amendments made to the definition of Industrial Cause were made under Industrial Relations and Other Legislation Amendment Act 2022 s 65(2).

Close

Editorial Notes

  • Published Case Name:

    Eggers v Workers' Compensation Regulator

  • Shortened Case Name:

    Eggers v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 185

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    30 Jul 2024

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
Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2012] QSC 413
2 citations
Jump To
Cite 1 - [2012] QSC 413
Cite 2 - [2012] QSC 413
Crisp v Queensland Law Group – A New Direction Pty Ltd [2019] QDC 156
2 citations
Jump To
Cite 1 - [2019] QDC 156
Cite 2 - [2019] QDC 156
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
2 citations
Jump To
Cite 1 - [2017] ICQ 5
Cite 2 - [2017] ICQ 5
Jonathan v Mangera [2016] QCA 86
2 citations
Jump To
Cite 1 - [2016] QCA 86
Cite 2 - [2016] QCA 86
Jonathan v Mangera [2015] QDC 195
2 citations
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Cite 1 - [2015] QDC 195
Cite 2 - [2015] QDC 195

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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