Hossain v 4 Eyes Pty Ltd t/as Beach Burrito Co

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hossain v 4 Eyes Pty Ltd t/as Beach Burrito Co [2022] NSWPIC 95
APPLICANT:	MD Sanwar Hossain
RESPONDENT:	4 Eyes Pty Ltd t/as Beach Burrito Co
MEMBER:	Rachel Homan
DATE OF DECISION:	4 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation in respect of cervical and lumbar injury; failure of applicant to appear at teleconference; applicant departed country and solicitor unable to make contact; solicitor lacked instructions to enable him to participate in teleconference; Held- proceedings dismissed for want of due despatch.
DETERMINATIONS MADE:	Proceedings dismissed for want of due despatch.

STATEMENT OF REASONS

BACKGROUND

Mr Md Sanwar Hossain (the applicant) was employed by 4 Eyes Pty Ltd t/as Beach Burrito Co (the respondent) as a cook.
On 3 February 2022, the applicant lodged in the Personal Injury Commission (Commission) an Application to Resolve a Dispute seeking weekly compensation in respect of an injury to his cervical spine, lumbar spine and left leg.
The matter proceeded to an initial teleconference on 4 March 2022. The applicant was represented at the teleconference by Mr Robert Hopper. The respondent was represented by Mr Gary Forster. Representatives from the respondent’s insurer were also present.
The commencement of the teleconference was delayed by approximately 15 minutes as the operator was unable to make contact with the applicant on the telephone number provided.
When the teleconference eventually commenced in the applicant’s absence, I was informed by Mr Hopper that the applicant appeared to have departed Australia and he had been unable to obtain instructions from the applicant that would enable him to participate in the proceedings.
Mr Hopper requested and was given time to attempt to contact the applicant one more time via the messaging platform “What’s App”. Mr Hopper was unsuccessful in making contact with the applicant.
In the circumstances, I proposed that the proceedings should be dismissed for want of due despatch. No submissions objecting to that course were made by either party.

FINDINGS AND REASONS

Section 54 of the Personal Injury Act 2020 (the PIC Act) deals with the dismissal of proceedings. It provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
Rule 77 of Personal Injury Commission Rules 2021 (the 2021 Rules) provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation
legislation—the applicant has failed to prosecute the proceedings with due
despatch…”
Rule 9 of the 2021 Rules deals with procedural orders that can be made by members of the Commission. It provides:
“9 Procedural orders by non-presidential members and merit reviewers
A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”
The applicant failed to appear at the initial teleconference in these proceedings. The Commission attempted to contact the applicant on the number provided for him on multiple occasions for prior to the commencement of the teleconference and for a further period of approximately 15 minutes after the teleconference was due to commence.
The applicant has also failed to make contact with his legal representative ahead of the teleconference in order to provide instructions that would enable Mr Hopper to participate in the proceedings on his behalf. Mr Hopper informed me that he had attempted to contact the applicant by all means available to him, including through the What’s App messaging platform. The applicant was unable to be contacted and appeared to have departed the country.
In these circumstances, I am satisfied that the applicant has failed to prosecute the proceedings with due despatch.
There is nothing to prevent the applicant from lodging a further application in the Commission, in accordance with the principles in Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited[1].
[1] [2004] NSWWCCPD 83.
The proceedings are dismissed pursuant to s 54 of the PIC Act and r 77 of the 2021 Rules.

In the matter of Hossain versus 4 Eyes Pty Ltd trading as Beach Burrito Co, the applicant, Hossain, sought weekly compensation in relation to injuries sustained in the course of his employment, specifically cervical and lumbar injuries. The proceedings were heard in the Queensland Civil and Administrative Tribunal. Hossain's absence at a scheduled teleconference was the pivotal issue, as he had departed the country and his solicitor was unable to contact him. Moreover, the solicitor lacked the necessary instructions to engage in the teleconference on Hossain's behalf.

The primary legal issue before the Tribunal was whether the proceedings should proceed in Hossain's absence. The Tribunal examined the statutory provisions governing the conduct of proceedings and the importance of due despatch. Given Hossain's absence and the solicitor's inability to participate effectively due to a lack of instructions, the Tribunal had to determine if it could proceed without Hossain's presence and, if not, what the appropriate course of action was.

The Tribunal found that the proceedings could not continue in Hossain's absence, as the statutory requirement for due despatch was not met. The Tribunal noted that Hossain's solicitor did not have the necessary instructions to participate in the teleconference, and there was no means to contact Hossain to rectify this. Consequently, the Tribunal dismissed the proceedings for want of due despatch. The Tribunal emphasised the importance of ensuring that proceedings are conducted efficiently and that all parties are afforded an opportunity to participate. Given the dismissal, no further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established