Barnes v Q-Comp & Hatch Pty Ltd

Case [2017] QIRC 25

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 025

PARTIES:  

Anthony Joseph Barnes
(appellant)

v

Q-Comp
(first respondent)

Hatch Pty Ltd
(second respondent)

CASE NO:

 WC/2013/269

PROCEEDING:

 Show cause

DELIVERED ON:

 15 March 2017

HEARING DATE: 

 27 October 2016

MEMBER:

 Deputy President D L O'Connor

ORDERS   :

1.     The appellant's application is dismissed.

2.     The proceedings are struck out.

3.      Pursuant to r 45 of the Industrial Relations             i(Tribunals) Rules 2011 the proceedings are  idismissed.
CATCHWORDS:

WORKERS' COMPENSATION – APPEAL – PROCEDURE – SHOW CAUSE – where the appellant has not complied with a directions order – where the appellant has not taken action in his matter for more than 12 months – where the appellant requires leave to proceed – where no formal application for leave to proceed has been made by the appellant – where the appellant was required to show cause under rule 231 of the Industrial Relations (Tribunals) Rules 2011 – whether sufficient cause has been shown to prevent the appellant’s appeal from being struck out – appeal struck out      

WORKERS' COMPENSATION – APPEAL – where a consent order allowing the employer to appear was made – whether the employer is allowed to appear

CASES:

Industrial Relations (Tribunals) Rules 2011, r 3, r 4,  r 5, r  45, r 226, r 230, r 231
Uniform Civil Procedure Rules 1999
Workers' Compensation and Rehabilitation Act 2003, s 554A

Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536
Australian Education Union v Lawler (2008) 169 FCR 327
Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007
Burke v Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38) – Decision
Christopher William Savage v Q-Comp [2013] QIRComm 44
Dempsey v Dorber [1990] 1 Qd R 418
Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010
Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992

Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd  (1990) FCR 388

Pantorno v The Queen (1989) 166 CLR 466
Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005)180 QGIG 1209
Quinlan v Rothwell[2002] 1 QdR 647
R v Moore (1976) 11 ALR 449
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
Voyka v Jacko [2006] QSC 099

William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490

APPEARANCES:

A J Barnes the appellant in person
S P Gray counsel instructed by and for the first respondent
L Copley counsel instructed by Milner Lawyers for the second respondent

Reasons for Decision

  1. This appeal arises from a decision of the Workers' Compensation Regulator ('the first respondent') to reject a claim by Anthony Joseph Barnes ('the appellant') alleging that he sustained a psychological injury arising from his employment with Hatch Pty Ltd ('the second respondent'). WorkCover's decision to reject the appellant's application was affirmed by the first respondent on 29 June 2013. The appellant lodged a…

Continue reading Barnes v Q-Comp & Hatch Pty Ltd

Sign in free to access the full text

Details
AGLC
Barnes v Q-Comp and Hatch Pty Ltd [2017] QIRC 25
Case
[2017] QIRC 25
Decision Date

CaseChat Overview and Summary

In the matter of Barnes v Q-Comp & Hatch Pty Ltd, the appellant contested a decision of the Industrial Relations Commission of Queensland. The dispute involved a workers' compensation claim, and the appellant sought to appeal the decision to the Commission. The central legal issues before the court were whether the appellant's appeal should proceed, given his non-compliance with directions orders, and whether the employer, Q-Comp & Hatch Pty Ltd, was permitted to appear in the appeal after a consent order had been made.

The court found that the appellant had not shown sufficient cause to prevent his appeal from being struck out. The appellant had failed to comply with multiple directions orders and had not taken meaningful action in his case for over a year. Although the appellant expressed a desire to continue with the appeal, this alone was not sufficient to warrant the continuation of the proceedings. The court referred to the case of Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd, where it was observed that where an applicant's non-compliance with court directions is either continuing or indicates an unwillingness to cooperate, the court has broad discretion to strike out the proceedings. The appellant's history of non-compliance and the resulting prejudice to the respondent led the court to exercise its discretion to dismiss the appeal and strike out the proceedings.

The final orders of the court were that the appellant's application was dismissed, the proceedings were struck out, and the matter was dismissed pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011.

Orders

Orders of the court

1. The appellant's application is dismissed.

2. The proceedings are struck out.

3. Pursuant to r 45 of the Industrial Relations i(Tribunals) Rules 2011 the proceedings are idismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have not been persuaded by anything before the Commission as to why the appellant's appeal should proceed. He has not, in my view, adequately demonstrated why the delay in these proceedings occurred. There were no submissions made by the appellant on why the matter should not be struck out, rather explanations were offered along with the statement that the appellant wanted to continue. The mere fact that the appellant wants to continue is not, in these circumstances, a reason in itself as to why the proceedings should be allowed to continue. Conclusion The appellant has failed, apart from attending a s552A conference on 1 October 2013, to prosecute his proceedings in any meaningful way since the appeal was lodged in the Industrial Registry on 23 August 2013. He failed to comply with directions made on 12 March 2015, 10 April 2015 and 29 April 2015. The Commission might have taken steps to strike out his proceedings following the correspondence of the regulator of 4 December 2014. Instead the appellant was given an opportunity to deal with his non-compliance. Despite being given numerous opportunities to progress the matter under a revised timetable, the appellant failed to comply with the directions orders of the Vice President and Deputy President Bloomfield. When the matter came before me for mention the appellant again had the opportunity to attend to outstanding matters. He failed to do so. In Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd, Wilcox and Gummow JJ in dealing with a similar provision under the Federal Court Rules stated that the discretion conferred by the rule was "unconfined, except for the condition of non-compliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power." The first were "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". The second were 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." [19] [19] Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd (1990) FCR 388, 396. Their Honours went on to observe:"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."[20][20] Ibid. In the second of the two situations namely a significant continuing default, their Honours wrote:"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."[21][21] Ibid 397.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.