Henderson v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 62
•31 March 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Henderson v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 062 |
PARTIES: | Henderson, Graham v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/325 |
PROCEEDING: | Appeal to Industrial Commission against a decision of the Regulator; application to dismiss |
DELIVERED ON: | 31 March 2014 |
HEARING DATE: | 31 March 2014 |
MEMBER: | Deputy President O'Connor |
ORDERS: | 1. The appeal is dismissed; 2. The decision of the respondent's Review Unit dated 11 September 2013 is confirmed; and 3. The appellant is to pay the respondent's costs, fixed in the amount of |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL TO COMMISSION AGAINST DECISION OF REGULATOR - DECISIONS GENERALLY - APPLICATION TO DISMISS - Where the appellant failed to attend the hearing of the appeal - Where the history of the appeal, including the appellant's correspondence with the Commission and the respondent, revealed that he was aware, or reasonably ought to have been aware, that the matter had been set down for hearing - Where, in the circumstances, the respondent applied for an order that the appeal be "struck out" or dismissed, with costs - Whether the discretion to dismiss should be exercised |
| CASES: | Industrial Relations (Tribunals) Rules 2011, r 45(3) Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) - Decision < v The King (1936) 55 CLR 499 |
| APPEARANCES: | No appearance for the appellant. Mr S. P. Gray, for the respondent. |
Decision
This is an appeal by Mr Graham Henderson ("the appellant") against a decision of the Review Unit of the Workers' Compensation Regulator ("the respondent") pursuant to the Workers' Compensation and Rehabilitation Act 2003 ("WCR Act").
The matter was set down for hearing before the Commission on Monday 31 March 2014. The appellant failed to attend. No reason has been given to the Commission to account for his non-attendance.
In light of the appellant's failure to attend, the respondent sought the following orders:
"(a) an order pursuant to s 331(b) of the Industrial Relations Act 1999 ['the Act'] that the appeal filed by Mr Graham Henderson (WC/2013/325) be struck-out because further proceedings are not in the public interest; or
(b) an order pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 ['the Rules'] dismissing the appeal."
A brief chronology of events in WC/2013/325 is as follows:
Date Circumstances 9 October 2013 Appeal filed 22 October 2013 Call over - appeal set for s 552A conference and hearing 22 November 2013 Statement of stressors filed 20 December 2013 Respondent's list of documents sent 13 January 2014 Phone discussion with Mr Henderson
- does not require any documents from respondent
- advised he considers affidavit and attachments comply with his obligations for disclosure
14 January 2014 552A conference
- copy of Dr Richardson records provided to Mr Henderson during conference
- Respondent accepts affidavit as list of documents
- Mr Henderson provides preliminary list of witnesses
24 January 2014 Respondent's s 554 list sent 29 January 2014 Respondent's list of witnesses sent 30 January 2014 Respondent confers with lay witnesses 25 February 2014 Respondent advises Commission not calling any expert witnesses
- copy of letter sent to Mr Henderson via email
- copy of further medical records posted to Mr Henderson
5 March 2014 Vice President advises Mr Henderson via email that list of documents and list of witnesses to be supplied by 4pm on 6 March 2014 and that failure to comply may result in vacation of hearing dates 11 March 2014 Review mention set in initial further directions order
- no appearance by Mr Henderson
- 1 & 2 April hearing dates vacated
18 March 2014 Respondent advises Commission not relying upon expert reports copy of letter emailed to Mr Henderson
Relevant legislation
Section 331(b) of the Act provides:
"331 Decisions generally
The court or commission may, in an industrial cause–
…(b)dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
(i) the cause is trivial; or
(ii)further proceedings by the court or commission are not necessary or desirable in the public interest."
Rule 45 of the Rules relevantly provides:
"45 Failure to attend or to comply with directions order
(1) This rule applies if–
(a)a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
(b)the party fails to attend the hearing or conference.
(2) This rule also applies if–
(a)a party to a proceeding receives a notice of a directions order made by the court, commission or registrar; and
(b) the party fails to comply with the order.
(3) The court, commission or registrar may–
(a) dismiss the proceeding…"
Submissions
The respondent relied upon the chronology of events in WC/2013/325 as set out in paragraph [4] to support its application to have the appeal struck out.
The appellant has had no contact with the respondent, the Commission or the Industrial Registry in respect of this matter since the s 552A conference held before Industrial Commissioner Thompson on 14 January 2014.
The respondent submits that the appellant's conduct in failing to comply with the directions orders issued by the Commission communicated an intention not to prosecute the appeal.
By email dated 5 March 2014 the Commission advised the appellant that, in accordance with the further directions order issued by the Vice President on
22 October 2013, he had failed to comply with paragraphs (2) and (7) - namely, supplying to the respondent a list of documents and filing in the Industrial Registry a list of witness that the appellant proposed to call at the hearing of the matter.
It was also submitted that the appellant's failure to attend the mention on 11 March 2014 lent further weight to the conclusion that the appellant was not intending to prosecute the appeal.
At the mention of the matter on 11 March 2014, Ms Ruth Jamieson, an "Appeals Officer" with the respondent, advised her Honour Vice President Linnane as follows:
"MS JAMIESON: I've had not had any recent conversations with Mr Henderson. However, I had had a telephone conversation with him shortly before the 552A conference where he informed me that he had received emails that I had sent him, so I was confident that email address was correct."
In Burke v Simon Blackwood (Workers' Compensation Regulator)[1] Martin J wrote:
"The Commission has a discretion under r 45 which must be exercised judicially. The burden upon a person seeking to upset the exercise of such a discretion is described in the well-known decision of the High Court in House v The King:
'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.' (emphasis added)"[2]
[1] Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) - Decision <
[2] Ibid [11] (citations omitted), quoting House v The King (1936) 55 CLR 499, 504–5.
In support of its application to strike out the appeal, the respondent also relied on the authorities in Q-COMP v Hill,[3] Q-COMP v Struik,[4] Pritchard v Q-COMP,[5] Mills v
[3] Q-COMP v Hill (2009) 190 QGIG 1.
[4] Q-COMP v Struik (B/2012/56) - Decision < Pritchard v Q-COMP (WC/2011/44) - Decision < Mills v Q-COMP (WC/2011/416) - Decision < Q-COMP v Carley (B/2013/10) - Decision < and Q-COMP v Carley.[7]
Conclusion
Given the history of this matter as set out in the chronology of events referred to above, I have formed the view that the appellant has not demonstrated an intention to pursue his appeal.
The appeal sought to overturn a decision of the respondent's Review Unit confirming WorkCover Queensland's decision to reject the appellant's application for compensation in accordance with s 32(5) of the WCR Act.
No reasons have been advanced by the appellant for his failure to comply with directions issued by the Commission which would warrant granting him a further opportunity to pursue WC/2013/325, nor has any reason been given for his failure to attend the hearing.
The respondent sought costs in the amount of $4,013.50 calculated in accordance with the Uniform Civil Procedure Rules 1999, sch 3, scale "E" as follows:
●Item 5 (a) Preparation for trial – half – preparation prior to 11 March 2014 review mention: $1, 252.50
● Item 6 (d) Conference fees for Counsel ($181 x 6 Hrs) conferencing occurred on 30 January 2014: $1, 086.00
● Counsel's fee to appear at hearing: $1, 120.00
● Disclosure – making: $555.00Orders
I make the following orders:
1. The appeal is dismissed;
2. The decision of the respondent's Review Unit dated
11 September 2013 is confirmed; and3. The appellant is to pay the respondent's costs, fixed in the amount of $4, 013.50.
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