Clark v Workers' Compensation Regulator - [2020] QIRC 10

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Clark v Workers’ Compensation Regulator [2020] QIRC 010
PARTIES:	Clark, Fay Appellant v Workers' Compensation Regulator Respondent
CASE NO:	WC/2017/222
PROCEEDING:	Appeal against a decision of the Workers’ Compensation Regulator
DELIVERED ON:	22 January 2020
HEARING DATES:	13 November 2019, 13 December 2019, and 21 January 2020
MEMBER: HEARD AT:	McLennan IC Brisbane
ORDERS:	1. That the appeal is dismissed. 2. That each party bear their own costs in the proceeding.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL – where Appellant has been directed to provide information – where Appellant has failed to comply with directions to provide information – application of rule 45 – appeal dismissed.
LEGISLATION: CASES:	Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, r 45 Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32, s 125, s 553 Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) 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 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73 Quinlan v Rothwell & Anor [2001] QCA 176 Seymour v Workers' Compensation Regulator [2017] QIRC 061 Witten v. Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405 Workers' Compensation Regulator v Varga [2019] QIRC 028
APPEARANCES:	Ms I. Hart as lay agent for the Appellant. Ms S. Gray, Counsel directly instructed by the Workers’ Compensation Regulator, Respondent.

Reasons for Decision

Ms Fay Clark (the Appellant) filed this appeal against a decision of the Workers’ Compensation Regulator (the Respondent) on 4 December 2017. The Appellant was represented throughout these proceedings by her lay agent, Ms Irene Hart. The Appellant claimed to suffer from industrial deafness. The Respondent had made submissions that, inter alia, the Appellant had retired from work some years prior to her claim, and so the appeal should be dismissed under s 125 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WC Act).
This matter was mentioned on 13 November 2019, where I informed the parties that said s 125 jurisdictional issue should first be determined at a preliminary hearing. However, at that mention, the Respondent raised an issue regarding the Appellant’s unwillingness to provide disclosure. It is that issue, and a subsequent failure to follow directions, which forms the substance of this decision.
In late 2018, the Respondent issued Medicare with a Notice of non-party disclosure, for Medicare to supply relevant information regarding the Appellant. Medicare sought to comply with that Attendance Notice, but the Appellant’s Medicare details were not clear. There was also some question as to whether the Appellant had more than one Medicare account under different identities/dates of birth. On several occasions, the Respondent enquired of the Appellant by email as to what her Medicare account details were. The Appellant was not forthcoming. Her explanation through her representative was that ‘(the Appellant) fell off the database.’ When…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v Workers' Compensation Regulator

Details

AGLC: Clark v Workers' Compensation Regulator [2020] QIRC 10
Case: [2020] QIRC 10
Decision Date: 22 January 2020

CaseChat Overview and Summary

In the case of Clark v Workers' Compensation Regulator, the appellant, Fay Clark, was involved in a dispute concerning workers' compensation. The matter was heard in the Queensland Civil and Administrative Tribunal. The primary issue that arose from this case was whether the appellant's refusal to provide requested information to the regulator warranted the dismissal of her appeal. Specifically, the tribunal had directed the appellant to furnish her Medicare details, which were considered relevant to the determination of her claim. Despite clear directions and warnings, the appellant failed to comply with the requirement to provide the necessary information.

The tribunal examined the implications of the appellant's non-compliance with the directive to produce the Medicare details. The tribunal highlighted that the information was crucial in determining various facts pertinent to the appellant's claim, such as the existence and timing of any injury sustained. The tribunal also noted that it had already issued an Attendance Notice to Produce, emphasizing the importance of the requested documents. Despite these efforts, the appellant continued to withhold the required information. The tribunal underscored that the appellant's continued refusal to comply with the court's directions was both flagrant and deliberate.

Consequently, the tribunal dismissed the appellant's appeal. The tribunal found that the appellant's actions warranted such a decision under the relevant rules of court. The tribunal further ruled that each party bear their own costs in the proceeding, reflecting the tribunal's view on the merits and conduct of the case.

Orders

Orders of the court

1. That the appeal is dismissed.

2. That each party bear their own costs in the proceeding.

Background

Background to the litigation

For the reasons that follow, I have determined that the Appellant’s continued and flagrant refusal to comply with my directions warrants the dismissal of her Appeal. BackgroundThe First Mention – 13 November 2019 In a mention of this matter on 13 November 2019 the Respondent raised that the Appellant had not furnished them with the Appellant's Medicare details: When pressed by me for a response, the Appellant’s representative provided the following: It was then clearly explained to the Appellant’s representative that the Medicare records are directly relevant to the matter at hand, and that an Attendance Notice to Produce had already been issued by the registry requiring their provision by Medicare. The remaining issue in sourcing the relevant material from Medicare was then explained by the Respondent:COMMISSIONER: Yes. I see on the file there is an Attendance Notice to Produce. Yes. I see that that’s been filed appropriately with the registry. I see that documents required are a full copy of the Medicare patient and previous histories in written or electronic form for a period from the 6th of November 2013 to the 31st of October 2018, pertaining to the appellant, Fay Clark. And I note that the appellant is known to be using two different dates of birth and those are indicated on the schedule that forms an attachment for form 32B. Okay. So what I’m hearing from Ms Shaw isthat the appellant has failed/declined to provide a copy of those documents.MS SHAW: The – that was directed to Medicare; the - - -COMMISSIONER: Yes.MS SHAW: - - - notice to produce, and they’ve indicated that they can’t find any records of Ms Clark with either date of birth. They could not find anything that was similar. So what we’ve asked is for Ms Clark to provide her – and I can tell you exactly – there’s pretty much a repeat in each request – that if she could please provide the details of the – of the identity she provided to Medicare; the date of birth, address and phone number or, particularly, if she could just provide her Medicare number. If she was comfortable doing that then they could identify her immediately, we were told. So we just ask for that to be provided or accurate, personal identifier, such as full name, date of birth, address, so that they can have an attempt to actually identify her. In considering the material before me, I determined that the Medicare details within the possession of the Appellant was certainly relevant to a number of facts in issue, including whether the Appellant had sustained an injury, when that injury may have been sustained, and the other criteria set out in the WC Act.[3] I then indicated to the Parties, on two occasions, that I would direct the provision of that information:[3] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32. As I indicated in my closing comment, if the Appellant did not comply with the directions promptly, the matter would be listed for a further mention. In fact, that is precisely what occurred.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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