Bale v Workers' Compensation Regulator

Case [2024] QIRC 235

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bale v Workers' Compensation Regulator [2024] QIRC 235

PARTIES:

Bale, Lauren
Applicant

v

Workers' Compensation Regulator
Respondent

CASE NO:

B/2024/27

PROCEEDING:

General Application

DELIVERED ON:

 25 September 2024

HEARING DATE: 

19 June 2024

MEMBER:

HEARD AT:

Caddie IC

Brisbane

ORDER:

1. The Applicant may take further action on Application WC/2022/188 pursuant to s 451(2)(c) of the IR Act.

2.     The substantive matter WC/2022/188 is to be allocated from the Registry to a Member of the Commission to oversee the next steps.
CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS –  Applicant is a worker who made an application for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 – claim not accepted by a review decision of the Respondent – Applicant appealed against the review decision – Applicant's legal representation withdrew during the course of proceedings – Applicant's legal representation re-entered matter and applied for an order pursuant to r 230(2) of the Industrial Relations (Tribunals) Rules 2011 to take further action in respect of its appeal – consideration of whether the Applicant's appeal had lapsed within the meaning of r 230(1) of the Industrial Relations (Tribunals) Rules 2011, had taken action in relation to its appeal for at least one year since the last action was taken – no action has been taken by the applicant in relation to the application, enlivening r 230(1) of the Industrial Relations (Tribunals) Rules 2011 – Applicant established that the Commission should make the order despite the delay because it is in the interests of justice to do so – decision made pursuant to s 451(2)(c) of the Industrial Relations Act 2016 that the Applicant may take further action on the appeal.

LEGISLATION:

CASES:

Industrial Relations Act 2016 ss 451, 544.

Industrial Relations (Tribunals) Rules 2011 r 230.

Aon Risk Services Australia v Australian National University (2009) 239 CLR 175.

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

Bajon v Q-COMP (2008) 188 QGIG 389.

Bell v Simon Blackwood (Workers' Compensation Regulator) [2020] QIRC 37.

Breust v Qantas Airways Limited (1995) 149 QGIG 777.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Emaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232

Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995]

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 23

Sandan v Minister for Immigration [2015] FCCA 116

Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353

Sharples v Workers' Compensation Regulator [2020] ICQ 20.

State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10.
APPEARANCES:

Mr W Isdale of counsel, instructed by Sciaccas Lawyers for the Applicant.

Mr P Rashleigh of counsel, instructed by the Respondent.

Reasons for Decision

  1. Lauren Bale ('the Applicant') was employed at Burpengary Station within the Queensland Police Service ('QPS').

  2. The Applicant claims she sustained a psychological injury…

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Details
AGLC
Bale v Workers' Compensation Regulator [2024] QIRC 235
Case
[2024] QIRC 235
Decision Date

CaseChat Overview and Summary

In the case of Bale v Workers' Compensation Regulator, the applicant, Ms Bale, sought leave to continue an appeal against a decision by the Workers' Compensation Regulator. Ms Bale had originally applied for workers' compensation following an alleged workplace incident, but her application was rejected. She appealed this decision, but her legal representation withdrew and the appeal lapsed. Ms Bale later re-engaged new legal representation and applied for leave to continue the appeal. The central issue before the court was whether the appeal had lapsed under the relevant procedural rules and, if so, whether it was in the interests of justice to allow it to proceed.

The court considered the procedural rules governing dormant proceedings and the criteria for allowing lapsed appeals to continue. It found that the appeal had indeed lapsed because no action had been taken for over a year. However, the court also considered whether it was in the interests of justice to allow the appeal to proceed despite the delay. The court noted that Ms Bale had pursued a separate claim related to the same incident, which contributed to the delay. Nevertheless, the court was persuaded that allowing the appeal to proceed was in the interests of justice, particularly as the appeal was at an early stage and no prejudice to the respondent had been identified.

The court concluded that it was appropriate to exercise its discretion under the Industrial Relations Act to allow the appeal to continue. The decision was based on the new development of criminal proceedings related to the alleged sexual assault, which could provide additional relevant information. The court ordered that Ms Bale could take further action on her appeal and that the substantive matter should be allocated to a member of the Commission to oversee the next steps.

Orders

Orders of the court

1. The Applicant may take further action on Application WC/2022/188 pursuant to s 451(2)(c) of the IR Act.

2. The substantive matter WC/2022/188 is to be allocated from the Registry to a Member of the Commission to oversee the next steps.

Background

Background to the litigation

For the reasons which follow, the Applicant's appeal did lapse because r 230(1) of the Rules was enlivened; however, in consideration of r 230(3), the Applicant has established that the Commission should make an order allowing the Applicant to take further action on the appeal despite the delay, because, inter alia, it is in the interests of justice to do so.Relevant backgroundThe events prior to the Workers' Compensation appeal being lodged The information available to me at this stage of the proceedings is limited, as no statements of facts and contentions in the substantive matter have been filed. The below summary is extracted from the Regulator's review decision letter dated 18 October 2022. Relevantly, this is the decision subject to the substantive appeal. Ms Bale alleges she suffered a psychological injury reported as being sustained at work on 8 September 2021. She applied to WorkCover on 6 December 2021. With regards to the alleged sexual assault, an injury notification was submitted to her employer on 5 January 2022, and Ms Bale reported the incident to her employer on 6 January 2022. An electronic application for compensation was generated on 17 January 2022 with respect to the alleged sexual assault. Ms Bale's nominated support person prepared a statement which was sent on her behalf to WorkCover on 21 February 2022. It outlined two factors for consideration as part of Ms Bale's application for compensation, being the workplace pressure aspect and the sexual assault aspect. On 4 April 2022, the Regulator was advised by QPS that an internal investigation commenced, which was still ongoing at the time of the email; however no criminal complaint was forthcoming. An electronic claim was generated by WorkCover on 7 April 2022. This electronic claim included both the workplace pressure and sexual assault aspects of Ms Bale's claims. In assessing the claim, WorkCover only accepted the COVID-19 stressor as a significant causative factor to Ms Bale's psychological injury, finding that the sexual assault could not be substantiated. The Applicant's former representatives (Travis Schultz & Partners) lodged an application and grounds for review on the same date. The material of the review application is not before me, however the review decision letter provides a summary. In which, Ms Bale notes she was originally provided two separate claim references from WorkCover for the workplace pressure and sexual assault aspects respectively, which for reasons unknown to her were later merged into a single claim reference. Ms Bale contended that WorkCover did not carry out sufficient investigations in relation to her sexual assault and did not request relevant documents from QPS. On 17 October 2022, the Workers' Compensation Regulator wrote to Ms Bale's former representatives, stating:[You] requested a review of the one rejected factor, being the sexual assault. As this is a single application, I am unable to separate factors and as a result, Ms Bale's review request will require me to conduct a review of the totality of the claim acceptance by WorkCover…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have determined that the commencement of criminal proceedings in relation to the sexual assault allegation is a new development capable of providing additional information relevant to the consideration of the appeal. It would not be in the interests of justice to deprive the Applicant of the opportunity to present that evidence in circumstances where procedurally the appeal is still at its start, and the Respondent has identified no real prejudice if the appeal proceeds. Conclusion and next steps For the reasons above, I am persuaded that I should exercise my discretion and make an order that the applicant should be allowed to take further action on her appeal pursuant to r 230(2). I note the application WC/2022/188 lapsed prior to it being allocated to a Member of the Commission. Having a Member of the Commission allocated to oversee the conduct of the matter would be an appropriate next step. Order1. The Applicant may take further action on the appeal WC/2022/188 pursuant to s 451(2)(c) of the IR Act.2.The substantive matter WC/2022/188 is to be allocated from the Registry to a Member of the Commission to oversee the next steps.

Ratio Decidendi

Legal Principle Established

The Respondent submissions on delay largely follow their submissions on whether actions were taken in proceedings, which I reproduced above at [40]-[43]. The submission is that Ms Bale's actions in other jurisdictions are not relevant to this application.Consideration While I consider the actions as outlined by the Applicant were not actions taken in the context of r 230(1), I do find that they are relevant in the context of r 230(3)(b) in explaining the circumstances of the delay. Following lodgement of the appeal in November 2022, the matter was subject to directions, and then by agreement was placed into abeyance for a period of three months from 15 March 2023. This explains the circumstances of the delay until June 2023. On 13 March 2023, the Applicant lodged a new workers compensation claim for the sexual assault component only. As indicated above, I have no reason to doubt submissions on behalf of the Applicant that for whatever reason she pursued this claim in the belief that it could lead to a different outcome to the one being appealed. The Applicant continued to pursue this avenue by seeking a review of WorkCover's rejection of her claim on 9 June 2023. The decision to reject the claim was confirmed by the Regulator on review on 11 October 2023. Evidence attached to the affidavit material filed by the Respondent demonstrates there was an awareness of the Applicant’s purported intention to lodge a new claim for compensation as early as 28 February 2023.[31] The Regulator (although not Ms Shedden, the current Appeals Officer with carriage of the matter) was aware the claim had been lodged when the review request was filed on 9 June 2023. The Regulator was also aware that the underlying matter had already been determined and was under appeal (albeit in abeyance) during the more than three-month period the review was being undertaken. [31] Ms Shedden's affidavit (n 26), Annexure 'CAS 1': Telephone call file note dated 28 February 2023. While I consider it is likely the case that within the Regulator, officers responsible for review are functionally separate from the officers responsible for appeals, it seems such a waste of time and resources for both parties that those dots were not connected. However misguided, pursuit of the separate claim does also explain the circumstances of the delay leading up to the decision of the Regulator issued 11 October 2023. On 16 October 2023, the Applicant participated in conciliation in relation to her human rights complaint. She had also been involved in participating in the criminal proceedings since making her official statement to the police in August 2023. Involvement in the criminal proceedings has been ongoing, leading to the contact with her former lawyers in March 2024 and the subsequent application subject to this decision. Further, it seems clear that several solicitors have acted for the Applicant in various capacities within the different proceedings, and that in some instances, the Applicant has been representing herself. While there are inferences in the material that the Applicant has not always been well-served by her legal representation and that she might have lost financial support from her union for ongoing legal representation, the lack of a coherent legal strategy has undoubtedly also contributed to the delay.