Jones v Simon Blackwood (Workers' Compensation Regulator) and Griffith University

Case •

[2015] QIRC 88

•

18 May 2015

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Jones v Simon Blackwood (Workers' Compensation Regulator) and Griffith University [2015] QIRC 088

PARTIES:   

Jones, Stuart
(Applicant)

v

Simon Blackwood (Workers' Compensation Regulator)

(First Respondent)

and

Griffith University

(Second Respondent)

CASE NO:

 WC/2015/105

PROCEEDING:

 Application to Vacate Hearing Dates

DELIVERED ON:

 18 May 2015

HEARING DATE: 

 18 May 2015

MEMBER:

 Vice President Linnane
ORDERS:

1.    Application Dismissed.

2.    The Applicant is to pay the First Respondent's costs in the amount of $186.00. 

3.    The Applicant is to pay these costs by 9 June 2015.
CATCHWORDS:

WORKERS' COMPENSATION - Application to vacate hearing dates made by Applicant - Applicant failed to attend hearing - Applicant exhibited capacity to comply with Directions - Medical evidence indicates simply that the Applicant is not capable to represent himself - Application to vacate hearing dates is dismissed - Costs awarded against the Applicant.
APPEARANCES:

No appearance for the Applicant.
Dr M. Callaghan, Counsel directly instructed by the Workers' Compensation Regulator.
Ms J. Veiga of Minter Ellison, Solicitors for Griffith University.

Decision

  1. This is an Application by Stuart Jones (Applicant) seeking the vacation of hearing dates in his substantive appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) (Regulator) in WC/2015/53 to reject his claim for workers' compensation in relation to an "anxiety and depression with panic attack" claim.  The Application to vacate the hearing dates is said to be on medical grounds.

  1. Directions for the further conduct of WC/2015/53 were given at Callover on 26 March 2015.  The Applicant did not attend that Callover but provided some information in written form for the purposes of listing the matter for hearing.  The scheduled hearing dates provided to both the Applicant and the Regulator in the Further Directions Order issued on 30 March 2015 were 22 - 25 June 2015.

  1. Griffith University (University) was given leave to be heard in WC/2015/53 after the Industrial Registry received, on 9 April 2015, the consent of both the Applicant and the Regulator.  The Applicant is currently employed by the University as its Deputy Director, Planning and Finance Services.  The Applicant has not attended work at the University since 17 October 2014.

  2. The University and the Regulator both oppose the current application to vacate the hearing dates of 22 - 25 June 2013.  In so opposing the application, the University relied upon an Affidavit of Jennifer Veiga, Special Counsel employed by Minter Ellison, Solicitors for the University.

  3. It is apparent that the Applicant is not only pursuing an appeal against the decision of the Regulator but has also commenced a bullying application in the Fair Work Commission and an anti-discrimination claim in the Queensland Anti-Discrimination Commission.  The University asserts that each of his claims arise out of the same set of facts and circumstances.

  1. According to the evidence of Ms Veiga, the Applicant has not sought to adjourn either the Fair Work Commission proceeding or the Anti-Discrimination Commission proceeding on medical grounds and has exhibited an intention to continue to proceed with both those applications. 

  1. The University contends that insofar as the Fair Work Commission application, the Applicant has exhibited a capacity to comply with the following commitments:

·        on 24 February 2015 the Applicant filed an application for an Order to stop bullying;

·        on 20 April 2015 the Applicant attended a Conference;

·        on 2 May 2015 the Applicant filed and served a substantial submission together with annexures outlining all incidents or instances of alleged bullying behaviour or conduct which he was relying upon in his application, together with a statement of a witness on whose evidence he intends to rely; and

·        on 2 May the Applicant filed and served a notice to produce on the University.

  1. Further, in terms of the Anti-Discrimination Commission proceedings the Applicant, according to the evidence of the University:

·        on 19 February 2015 filed a complaint;

·        on 4, 9, 16 and 19 March 2015 provided additional documentation in support of the complaint; and

·        on 5 May 2015 attended a Conference.

  1. In terms of WC/2015/53, the Applicant has also exhibited capacity to comply with the following directions issued in the Appeal:

·        on 4 March 2015 he filed his Notice of Appeal;

·        on 10 April 2015 he served a Statement of Stressors on the Regulator;

·        on 22 April 2015 he served his Statement of Stressors on the University;

·        on 23 April 2015 he served on both the Regulator and the University a List of Documents;

·        on 30 April 2015 and 1 May 2015 he disclosed documents as requested by the University;

·        on 30 April 2015 he requested documents from the University's List of Documents; and

·        on 8 May 2015 he served on the Regulator and the University a List of Documents and Witnesses intended to be relied upon at the hearing of his Notice of Appeal.

  1. The University asserts that the Applicant has exhibited an intention to comply with all future commitments in the Fair Work Commission proceedings which will include progressing the claim to a full jurisdictional hearing and complying with the following directions ordered in a Directions Order of 20 April 2015:

·        the Applicant must file and serve an outline of submissions and any further material in response to the jurisdictional objections and an application by the Employer to be represented by 1 June 2015; and

·        the Applicant must advise of witnesses which will be required for cross-examination and provide an estimate of the number of hearing days required by 12 June 2015.

  1. The University further asserts that the Applicant has also exhibited an intention to continue with all future commitments related to the Anti-Discrimination Commission proceeding in that he wrote to the University and the Conciliator in the Anti-Discrimination Commission proceeding expressing an intention to refer the matter to the Queensland Civil and Administrative Tribunal to be set down for hearing.

  1. Both the University and the Regulator contend that they are ready to proceed with WC/2015/53 on the scheduled dates in June and that the Applicant's Application to vacate the hearing dates should be dismissed.  The University submits that it has incurred significant costs to date in relation to the proceeding and irrespective of the outcome of the Applicant's Appeal in WC/2015/53 the costs it has incurred will not be recoverable as per the terms of the Consent Order granting the University the right to be heard in the Appeal issued by Commissioner Neate in matter WC/2015/65 on 13 April 2015.

  1. Whilst the Applicant did not attend the hearing of this Application, he did file an Affidavit responding to the Affidavit of Ms Viega on 13 May 2015.  In that Affidavit the Applicant disputes that the three claims (workers' compensation, bullying and anti-discrimination) did not arise out of the same set of facts and circumstances.  Further, the Applicant states that he has not exhibited capacity to comply with all commitments of the Fair Work Commission - just those to date.  He has been able to attend the Conference (but did so from a different room to the room wherein the University's representatives were located based on some medical advice) and to provide all paperwork.

  1. Similarly, the Applicant states that he had been able to exhibit a capacity to comply with all commitments in the Anti-Discrimination Commission to date.  Once again he alleges he attended the Conference but was located in a different room to the University representatives.

  1. The Applicant further states that he had only been able to comply with commitments to date in the Queensland Industrial Relations Commission in respect of his appeal in WC/2015/53 because, to date, it had involved providing paperwork only.

  1. The Applicant filed this Application on 24 April 2015.  On that same date he was forwarded an e-mail which provided inter alia:

"I am instructed to advise that you have not provided any supporting documents to your application.  Given that your basis for adjournment is your illness, you will need to provide medical evidence from your treating Psychiatrist.  Also, the treating Psychiatrist may need to give evidence in the proceeding to support your application if this application is listed for hearing."

  1. The Applicant's response of the same date is as follows:

"Many thanks for the response.

I will endeavour to provide the required information on the following timetable.

The original advice came from my attending GP, Dr Monique Glover.  I am seeing her next Wednesday 29th April and will get written medical evidence from her shortly after that date.  On 30th April, I am seeing my attending Psychologist, Dr Sue McCulloch.  I will also request the same from her.  At Dr Glover's request I am now seeing a psychiatrist, Dr Nielle Cabral, but my appointment is at 11.30 am on Thursday May 7th.  You will note this clashes with the section 552A conference appointment in the amended directions issued yesterday.

I will inform each of my medical advisors that they may be required to give evidence should this be listed.  As per your earlier email yesterday, can I request that for the current timetable, the conference be moved to the following week, 14 - 15 May?  Unfortunately, I did not have time to respond with my availability yesterday before the amended directions were issued, and I do not have any earlier option with Dr Cabral.  I have just asked to be put on a cancellation list for Dr Cabral, but the receptionist advised this list was lengthy and unlikely to get me an earlier appointment.

Your assistance is appreciated."

  1. At this point it should be noted that a s 552A of the Workers' Compensation and Rehabilitation Act Conference was originally scheduled for 14 April 2015.  It was then changed at the request of the Applicant.  The Conference was then scheduled for 5 May 2015 but was again changed at the request of the Applicant.  In the above mentioned e-mail, the Applicant advised that he was still unavailable for the rescheduled conference date of 7 May 2015.   

  1. The Applicant was advised on 28 April 2015 that his application to vacate the hearing dates was being listed for 18 May 2015 at 11.30 am.  He was further advised that the s 552A Conference listed for 7 May 2015 had been cancelled and that no further conference would be listed at this stage.

  1. On 29 April 2015 the Applicant forwarded correspondence from Dr Monique Glover, his General Medical Practitioner.  This correspondence is attached to the Applicant's Affidavit.  In that correspondence Dr Glover relevantly states as follows:

"This is to certify that I am the regular medical attendant for Stuart Jones.  He is currently suffering from depression and anxiety and has been diagnosed with PTSD by his attending psychologist Dr Sue McCullough.  I am aware that Mr Jones has been directed to attend 4 days of legal proceedings from 22nd June 2015 relating to his appeal against the workcover regulator.

It is my medical opinion that his attendance as directed would present a risk to Mr Jones mental health.

To date, Mr Jones is requiring ongoing treatment and management of his anxiety and depression and it is my medical opinion that he will no [sic] be fit to represent himself on the 22nd June 2015.  I support a request for an adjournment to his case.  I would also like to advise that we would need to reassess him closer to the time of a future nominated hearing date in order to give him clearance to attend.

I understand that his application to adjourn requires a hearing dated 18th May 2015.  Due to the exact problem above, can I respectfully request that Mr Jones attend by teleconference from my rooms.  I can be available to respond to questions if required.  This also allows me to be in clinical attendance for Mr Jones."

  1. Following receipt of advice that the Applicant was now under the care of a Psychiatrist, Dr Cabral, I caused to be forwarded to the Applicant an e-mail on 29 April 2015 advising him that I would require a report from his treating Psychiatrist in determining his application to vacate the hearing dates in June 2015.  The Applicant was given until 4.00 pm on 11 May 2015 to provide this report.

  1. The Applicant responded on the same day indicating that he would endeavour to comply but also pointing out that the first time he would see Dr Cabral was 7 May 2015 and that a deadline of 11 May 2015 may prove difficult.  On 5 May 2015 an e-mail was forwarded to the Applicant advising that it was only correspondence that was required from the Psychiatrist rather than a medical report and extending the time until 12 noon on Friday 15 May 2015 to provide such correspondence.   What was sought from the Psychiatrist was correspondence addressing the following matters:

·        that the Applicant was unfit to attend the hearing on 22 - 25 June 2015;

·        that the Applicant was unfit to represent himself at the hearing on 22 - 25 June 2015; and

·        that the Applicant was unfit to give evidence and be cross-examined at the hearing on 22 - 25 June 2015.

  1. On 13 May 2015 the Applicant forwarded correspondence from Dr McCulloch, his treating Psychologist which relevantly provides as follows:

"I understand that the abovementioned client is involved in legal proceedings relating to his appeal against WorkCover.  These proceedings are, I understand, set down for 22nd June 2015 over a period of four days.

I advise that Mr Jones was referred to me by his General Practitioner, Dr Monique Glover.  He has consulted with me on a regular basis since his initial visit on 6th November 2014.

At the first appointment, my subjective assessment of his symptoms and general presentation led me to consider that he was suffering from Post-traumatic Stress Disorder (PTSD) with depression and anxiety.

…

The severity of the client's current psychological condition, though having diminished slightly with his participation in therapy, remains tenuous and is likely to revert to its initial state if he is exposed, in toto (as would occur if he were to represent himself in a legal setting), to the initial situation(s).

Given the circumstances presented above, I am of the view that from a psychological perspective, he will be incapable of standing up to and represent [sic] himself in relation to any legal proceedings.  As such, along with Dr Glover, I strongly support Mr Jones' application for an adjournment of his case.

Further, as Dr Glover was the referring General Practitioner (and as such confers with me), I also support her request that should Mr Jones be required to present at the hearing dated 18th May 2015, it be held by means of a teleconference from her rooms."

[24]The Applicant in his e-mail of 13 May 2015 requested to attend the hearing of this Application via teleconference from Dr Glover's rooms and asking that we confirm that this was acceptable.  On 14 May 2015 after having received an e-mail from the Regulator advising that they would not consent to the request made by Dr Glover, the Applicant was advised that no consent was given to appear at the hearing on 18 May 2015 via telephone from Dr Glover's rooms, or at all.

  1. On 14 May 2015 the Applicant was further advised that he was required to appear in person at the hearing on 18 May 2015.  He was further advised that his Psychiatrist, Dr Cabral, was also to be available on the telephone for cross-examination.  The Applicant was further asked to provide, by 4.00 pm on Friday 15 May 2015, a telephone number on which Dr Cabral could be contacted.

  1. Following receipt of that e-mail, the Applicant forwarded a further e-mail attaching correspondence from Dr Cabral and relevantly providing as follows:

"For context, the receipt of the email yesterday afternoon triggered a severe anxiety attack in myself, and Dr Cabral (who saw me some 40 minutes later) saw first hand the consequent effects.  Thankfully, she was able to provide advice on how to medicate myself appropriately.

I understand the requirements of the Vice President in terms of my attending Monday's hearing in person, and requiring Dr Cabral be available to give expert evidence via telephone.  I forwarded this direction to Dr Cabral yesterday, and as I left her rooms yesterday evening, she was seeking advice from her colleagues on her being called as a medical expert given the early nature of our doctor/patient relationship.  I hope to [sic] able to provide a response as requested, and have copied her rooms as a reminder that such a response is due by 4.00 pm today.

Unfortunately, as three different medical professionals have all advised the risk of in person attendance at such legal hearings as that taking place on Monday, I will not be able to do so as directed.  Nor will I be able to self represent in the hearings scheduled for 22, 23, 24 and 25th June 2015.  Quite simply, although I of course have greatest respect for the directions of the Vice President, I have to put my faith in my attending medical specialists and put [sic] own health and safety first.  Given the above situation, I will inform Dr Glover that she will no longer be required to be in clinical attendance for me for the hearing on Monday morning, and instead just attend my appointment on a treatment basis.

I will also leave it to the good judgement of the Vice President in how to proceed with both this application (WC/2015/105) and the appeal itself (WC/2015/53) given the evidence presented that I am clearly not be [sic] able to self represent in Hearings from now until an undetermined date, based on Medical grounds."

  1. The correspondence from Dr Cabral dated 14 May 2015 provides as follows:

    "This letter is to confirm that Dr Monique Glover, General Practitioner, referred Mr Stuart Jones to me for an assessment and treatment on 18 March 2015 and I first assessed him on 07 May 2015 and again today.  I have not yet completed my assessment but my working diagnosis at present is that Mr Jones is suffering from a Major Depressive Disorder and is currently unable to represent himself in relation to any legal proceedings.

    I am in support of Mr Jones' application for an adjournment of his case till such time that his mental state improves."

  2. Dr Cabral left a voice message at 1.19 pm on 15 May 2015 on my Senior Associate's telephone as follows:

"I wanted to chat with you about a letter, an e-mail actually, that was sent about a patient of mine Stuart Jones asking me to provide evidence via phone for a hearing on Monday 18 May 2015 regarding Stuart Jones' case.  Unfortunately, I have a fully booked clinic on Monday so I will be unavailable to attend, in any case the patient is also not in a position to attend.  I have done a letter to say that he is unable to attend."

  1. Dr Cabral did not address the issues required to be addressed as outlined in the e-mail of 29 April 2015.  In her correspondence dated 14 May 2015 she simply states that the Applicant "is currently unable to represent himself in relation to any legal proceedings".  There was no mention whatsoever of him being able to give evidence or be cross-examined.  Had the Applicant wished to pursue his application to vacate the hearing dates then he could have organised to be represented at the hearing either by solicitor, counsel or agent.

  1. There was nothing to prevent him appearing in his own application with his medical practitioner present in the court room.  He chose not to appear in his own application.  It is also of interest to note that the Applicant was referred to Dr Cabral on 18 March 2015 and yet his first assessment with Dr Cabral was on 7 May 2015.  Then in an email of 14 May 2015, the Applicant advises that he could get in to see Dr Cabral within 40 minutes of receipt of an e-mail forwarded to him by my Chambers.

  1. In concluding that I am unable to vacate the hearing dates in June 2015, I have taken into consideration the following:

·        the strong opposition of the Regulator to the vacation of the hearing dates.  It is worth noting that it is most unusual for the Regulator to take such a strong stance in these types of circumstances;

·        the even stronger opposition of the University;

·        the fact that it was the Applicant's application to vacate the hearing dates and he failed to attend and/or be represented at the hearing;

·        the fact that the Applicant did not ensure that his Psychiatrist was available for cross-examination at the hearing when, on 24 April 2015, (the day he lodged his application for the vacation of hearing dates) he was advised that the maker of any medical report supporting his application may need to give evidence at the hearing.  Further, in his e-mail in response on 24 April 2015 he stated that he would "inform each of my medical advisors that they may be required to give evidence should this be listed";

·        the fact that Dr Cabral in her correspondence only states that the Applicant was "currently unable to represent himself in relation to any legal proceedings" and does not deal with those matters required in the e-mail of 29 April 2015 forwarded to the Applicant;

·        the fact that Dr McCulloch in her correspondence dated 8 May 2015 states that the Applicant "will be incapable of standing up to and represent [sic] himself in relation to any legal proceedings" and did not address anything about whether the Applicant could give evidence and be cross-examined at any hearing;

·        further, Dr Glover also states that it was her medical opinion that the Applicant would not be fit to represent himself on 22nd June 2015;

·        Dr Cabral was aware, on the afternoon of 14 May 2015 that she was required to give evidence on 18 May 2015.  She waited until 1.19 pm on the following day to advise that she had a "fully booked clinic on Monday 18 May 2015".  She would have been aware of this on 14 May 2015 when she apparently advised the Applicant that she was "seeking advice from her colleagues on her being called as a medical expert".  Had the advice from Dr Cabral been received prior to 1.19 pm on Friday 15 May 2015, the timing of the hearing on Monday 18 May 2015 may have been rearranged to suit her availability; and

·        the Applicant gave no evidence whatsoever of any financial difficulties which would have a bearing on him not being represented at the hearing of this Application.

  1. I have formed the view that Dr Cabral, Dr McCulloch and Dr Glover have provided correspondence that does not support any application for the vacation of hearing dates.  What their correspondence reveals is simply that the Applicant is not in a position to represent himself at any hearing whether it be of this Application or WC/2015/53.

  1. In those circumstances the Applicant could be represented by a lawyer or an agent at the hearing of his appeal in June 2015.

  1. The Application to vacate the hearing dates in matter WC/2015/53 is dismissed.

  1. The Regulator, at the conclusion of today's hearing, sought costs in respect of the attendance at the hearing of their Counsel.  The Regulator was asked to provide an Affidavit of the quantum of costs sought.  In an Affidavit of Paul Bush, an Appeals Officer with the Regulator, filed today the amount sought by the Regulator is $186.00 based on Scale E of the Schedule of Costs.

  1. I thus award costs, in the amount of $186.00 against the Applicant, given his non-appearance at the hearing and/or his failure to have a representative appear on his behalf at the hearing of this Application.

  1. These costs are to be paid by the Applicant by close of business on Tuesday 9 June 2015.

[38] Order accordingly.

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0