Keir v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 123
•8 August 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123 |
PARTIES: | Keir, Gaye Emily v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | C/2014/13 |
PROCEEDING: | Application for Leave to Appeal to a Full Bench |
DELIVERED ON: | 8 August 2014 |
HEARING DATE: | 16 May 2014 |
MEMBER: | Vice President Linnane |
ORDERS : | 1. Application for Leave to Appeal in C/2014/13 Dismissed. 2. Application to Appeal in C/2014/17 is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - Application for leave to appeal to a Full Bench of the Commission pursuant to s 342(3) of the Industrial Relations Act 1999 - Deputy President dismissed application for leave to proceed because of considerable delay in proceeding - Whether the matter is important enough, in the public interest, to give leave - Decision of Deputy President did not fundamentally alter the level of professionalism and conduct required of legal practitioners - No public interest identified which would warrant leave to appeal being granted - Application for leave to appeal - dismissed - Application to Appeal also dismissed. |
| CASES: | Industrial Relations Act 1999, s 342 |
| APPEARANCES: | Mr S. Grant, Counsel instructed by Quinn & Scattini Lawyers, for the Applicant. |
Decision
Dr Gaye Keir seeks to appeal to a Full Bench of the Queensland Industrial Relations Commission (Commission) against a decision of a Deputy President of the Commission given in B/2013/37: see Keir v Simon Blackwood (Workers' Compensation Regulator)[1]. The grounds of appeal in Dr Keir's Application to Appeal in C/2014/17 allege both errors of fact and errors of law. Thus Dr Keir must seek the leave of the Full Bench to appeal and it is her Application for leave to appeal (Application) that is the subject of this decision: see s 342 (2) of the Industrial Relations Act 1999.
[1] Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 025.
The decision of the Deputy President in B/2013/37 was in respect of an application in which Dr Keir sought leave to proceed following the lapsing of her Notice of Appeal (Appeal) against a decision of the Workers' Compensation Regulator (Regulator) (WC/2011/136) (formerly known as Q-COMP). That application to the Deputy President was made pursuant to rule 230 of the Industrial Relations (Tribunals) Rules 2011 (Rules).
Dr Keir's Appeal in WC/2011/136 was filed in the Industrial Registry on 21 April 2011 and a Conference under s 552A of the Workers' Compensation and Rehabilitation Act 2003 was held on 1 August 2011. That Conference was the last formal step taken by Dr Keir to progress her Appeal in the Commission. The next formal step occurred on 19 June 2013 when Dr Keir filed her application for leave to proceed. Thus no formal step was taken in WC/2011/136 for some twenty-two (22) months. In terms of progressing her Appeal, Dr Keir was thus required to seek the leave of the Commission to proceed with her Appeal in WC/2011/136. The Deputy President dismissed Dr Keir's application for leave to proceed.
Legislation
Section 342 of the Industrial Relations Act 1999 relevantly provides as follows:
"342 Appeal from commission, magistrate or registrar
(1) A person dissatisfied with a decision of the commission (other than a determination under chapter 6, division 1, subdivision 3 or a decision under section 273A) may appeal against the decision to the full bench, with the full bench's leave, on a ground other than -
(a) error of law; or
(b) excess, or want, of jurisdiction.
(2) However, if a person wants to appeal against a decision of the commission both on a ground mentioned in section 341(1) and on a ground mentioned in subsection (1), the person may only appeal against the decision to the full bench, with the full bench's leave.
(3) The full bench must, and may only, give leave for subsection (1) or (2) if it considers the matter is important enough, in the public interest, to give leave.
…
(8) The full bench may -
(a) dismiss the appeal; or
(b) allow the appeal, set aside the decision and substitute another decision; or
(c) allow the appeal and amend the decision; or
(d) allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar -
(i)for report to the full bench; or
(ii)to act according to law."
Issues
In summary, the Deputy President dismissed the application for leave to proceed because of the considerable delay in filing that application and the reasons for the delay. Although the delay was attributed to the dilatory conduct of Dr Keir's solicitor, the Deputy President found that Dr Keir was somewhat complicit in her solicitor's delay because of her failure to demand that he take action or otherwise hold him to account for his lack of action. The Deputy President concluded that Dr Keir was highly intelligent, articulate and capable of making her concerns about the solicitor's inaction known to him or his firm. Dr Keir seemed to let the whole matter "meander" along without taking positive action in relation to her solicitor. She possessed the necessary intellect and capacity to establish whether there were time limits associated with the prosecution of her appeal and to take the necessary steps to ensure that those timeframes were met.
Leave to appeal from that decision will only be granted if the Full Bench "considers the matter is important enough, in the public interest, to give leave".
To reach that conclusion we need to determine whether the Deputy President misunderstood (or misapplied) the legal principles relevant to the circumstances of this case and, if so, whether his decision was sufficiently important that it is in the public interest to grant leave to appeal from it.
In support of her application for leave, Dr Keir referred to legal principles in relation to the solicitor/client relationship that are said to be relevant to the circumstances of this case, and submitted that the decision of the Deputy President:
(a) fundamentally altered the law relevant to the implication of terms into the client-lawyer retainer to the extent that the actions of a lawyer are now dependent upon the directory conduct of the client; and
(b) particularly, stands for the proposition that an appellant's mental disability is irrelevant when they have significant intellectual ability, so that such an appellant has a higher duty to ensure that their solicitor acts in a timely manner in relation to each step of their appeal. As a consequence, Dr Keir submitted, if an appellant has a mental illness (whether or not that illness is the subject of the proceedings) and they need to seek leave under r 230 of the Rules, they will fall subject to this precedent decision.
Each party provided detailed written and oral submissions in relation to the legal principles said to be relevant to both the Appeal and this application, and to documentary evidence in relation to the circumstances of this case.
The Deputy President, in paragraph [4] of his decision, outlined those events (connected with progressing WC/2011/136 during the period 2 August 2011 to 18 June 2013) which Dr Keir relied upon to support her Application for leave to proceed. We do not intend to repeat those events in this decision.
Dr Keir's Argument on the Solicitor/Client Relationship
Dr Keir relied upon the following facts and circumstances to show that her application warranted leave being granted:
(a) that a client is entitled to rely upon their retained legal practitioner to use his or her best endeavours to protect the client's interest;
(b) that a legal practitioner undertakes at law to act in a timely way in conducting a client's matter;
(c) that such undertakings are especially important in circumstances where a client suffers a disability or incapacity that may affect their ability to monitor and enforce such entitlements;
(d) that a court should not visit the sins of a dilatory lawyer upon their client; and
(e) that the decision of the Deputy President fundamentally changed the application of the above principles.
Dr Keir contended that, pursuant to a retainer between a client and a lawyer, the lawyer assumes a number of implied terms as to how the lawyer will conduct a matter e.g. that the law will imply terms that the lawyer will:
(a) use his or her best endeavours to protect the client's interest and exercise reasonable care and skill in carrying out by all proper means his or her instructions in the matters to which the retainer relates: see Astley v Austrust Ltd[2]; and
(b) act in a timely way: see Hancock v Arnold[3] and Schmidt v Townsends.[4]
[2] Astley v Austrust Ltd (1999) 197 CLR 1 per Gleeson CJ at [47].
[3] Hancock v Arnold [2008] NSWCA 254 at [46] - [47].
[4] Schmidt v Townsends [2000] SASC 363 per Gray J at [25].
Mr Grant, Counsel for Dr Keir, submitted that the decision of the Deputy President fundamentally altered the law relevant to the implication of terms into the client-lawyer retainer to the extent that the actions of a lawyer are now dependent upon the directory conduct of the client. In this regard reliance was placed on the decision of the Court of Appeal in Keioskie v Workers' Compensation Board of Queensland[5], per Thomas J (with whom Macrossan CJ and McPherson JA agreed) who made the following reference:
[5] Keioskie v Workers' Compensation Board of Queensland [1992] QCA 304.
"In the context of applications of this kind, a distinction is often drawn between fault that is personal to the applicant and that which is attributable to his solicitors. Both sources of fault contribute to the ultimate delay and both are relevant for the court's consideration of the question of delay. From a defendant's point of view the delay is the same whether the plaintiff or his legal agent is to blame. However from the court's view point in applications of this kind, delay for which an applicant is personally responsible is regarded as more difficult to explain than that of his solicitor. In Gleeson v Brock [1969] Qd R 361, Hoare J considered this issue in the context of an O. 90 r. 9 application.
'It must be kept in mind that it is the party's action with which the Court is concerned. I must consider the effect of the actions (and inaction) of the plaintiff himself. That the actions of the plaintiff's solicitor are highly relevant is clear (William Crosby & Co Pty Ltd v The Commonwealth (supra). However, except in the rare cases where there is some kind of estoppel or quasi-estoppel created by the actions of a party's legal representative (which would necessarily bind the client) it does not follow that in matters of this nature the litigant must always suffer for the sins of omission or commission by his legal representative. See Kaats v Caelers (supra) at pp 504, 505 where Stable J. adopts statements of Barwick CJ in Hall v The Nominal Defendant (1966) 40 ALJ 102.'
A similar attitude was expressed in Woodford v The Nominal Defendant Appeal 5 of 1978, Full Court, unreported, 30th June 1978 per Hoare J. with whom Lucas and W.B. Campbell JJ. concurred.
'In the present case it is most significant that the chamber Judge has accepted as satisfactory the appellant's own explanation for the delay. The action or inaction of a dilatory party's solicitor is a relevant factor in determining the position whether or not the party should be excused from the operation of a time provision but it should not be forgotten that in the final result the question is whether or not the party himself should be excused from the delay and unless the action or inaction of the solicitor can in the particular circumstances be shown to have an important bearing on the question they usually are not as crucial as the conduct of the party himself.' "
The Court of Appeal in Keioskie v Workers' Compensation Board of Queensland,[6] however, confirmed Mackenzie J's decision to refuse leave to proceed. It did not disturb the primary judge's findings that the applicant had substantially contributed to the delay in the matter. As Thomas J noted:
"The question then is whether good cause has been shown for relieving the plaintiff of the consequences of O.90 r.9. The relevant factors are finely balanced and it may well be a case upon which different minds could take different views. Mackenzie J. addressed the relevant circumstances and it is not suggested that he applied any incorrect test. I do not think that His Honour has been shown to have misunderstood the evidence or that any of his findings are insupportable. His Honour exercised a discretion, and I am unable to say that the result is so obviously wrong that the discretion must have miscarried or that this is a case in which an Appeal Court should substitute its own exercise of discretion for that of the primary judge."
[6] Keioskie v Workers' Compensation Board of Queensland [1992] QCA 304.
Regulator's Argument on the Solicitor/Client Relationship
Mr O'Neill, Counsel for the Regulator, repudiated Dr Keir's contention that there was some general principle that a court should not visit the sins of a dilatory lawyer upon their client, contending that such a proposition was not supported by the authorities: see Sophron v The Nominal Defendant[7] where the High Court noted that there was no general principle that the negligence or dilatory conduct of a solicitor can never be ascribed to the client. The High Court noted that every case must be determined on its own facts and that no fixed formulae should be applied to such cases. It was further noted that the responsibility of the solicitor and the blamelessness of the client were material considerations in any such determination.
[7] Sophron v The Nominal Defendant (1957) 96 CLR 269 at 474.
In a joint judgment of McColl JA, Whealy JA and Tobias AJA in the New South Wales Court of Appeal in Daily Examiner Pty Ltd v Mundine; Brown v Mundine[8] an extension of time was refused in circumstances where there had been an error on the part of each of the applicant's legal representatives for which the clients were completely blameless. At [159] it was stated:
"We bear in mind, of course, that if the extensions of time are not granted, prejudice will be sustained by Mr Brown and by the newspaper. We acknowledge that neither Mr Brown nor the newspaper were personally at fault in the situation where the appropriate relief was not sought following the decision of the primary judge. In that regard, responsibility must be sheeted home to the lawyers concerned. However, that fact of itself cannot constitute an impenetrable bar to the making of an order refusing an application for an extension of time…"
[8] Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195.
Further, McMurdo J in Vlies v Commonwealth of Australia[9] noted that a party may be held responsible for a tardy lawyer if the plaintiff should have insisted that the case be prosecuted. It was noted at [20] as follows:
"In the present case, the omissions of some of the plaintiff's lawyers have contributed to the delay. But so too has the plaintiff, who should have insisted that his case be prosecuted. The plaintiff admits that he was made aware of the various delays, and that he has 'always been aware of any decision which may affect the action'. The fault is not simply that of (some of) the plaintiff's lawyers, or former lawyers. But to the extent that they have caused the delay, it is difficult to see that their default should be to the disadvantage of the defendant through any risk to a fair trial from that delay."
[9] Vlies v Commonwealth of Australia [2004] QSC 404.
The Regulator submitted that the evidence before the Deputy President confirmed that there was no apparent reason why Dr Keir could not have pressed her solicitor (Mr Duell) for greater progress with her appeal e.g. she was highly intelligent and highly qualified, as evidenced by her submission to the Regulator on review. Further, the evidence before the Deputy President established that Dr Keir was specifically aware of the requirement to take a step within twelve months, was well aware that the time was up, was aware that there had been inaction by her solicitor, and was aware that she could have requested that another solicitor in the firm take conduct of her matter, but she took no action. In these circumstances reliance was placed on the decision in Hall v Nominal Defendant[10] where Barwick CJ said at 435:
"A conscious decision by a litigant to take a particular course after appreciating the relevant evidence and considerations in the light of which a decision is to be taken may very well in some circumstances lead directly to the conclusion that it would not be just to allow him to resile and to have an extension of time in which to sue; or at any rate provide no reason for entertaining the application to extend the time."
[10] Hall v Nominal Defendant (1966) 117 CLR 423.
Issue was taken by Dr Keir with the Regulator's assertion that the she was "fully aware that there had to be a step taken within twelve (12) months". In Mr Duell's Affidavit before the Deputy President the following comment is made on Dr Keir's knowledge:
"On 22 July 2012, the Applicant wrote to me by e-mail noting that the 12 month period since the s 552A conference would end in nine days' time, that is, on 1 August 2012, and asked whether she should be seeking an extension of time to provide the legal submission to the Respondent. The Applicant also stated she did not want to miss the opportunity to provide legal argument because of missing the deadline, and asked for my advice."
In our view it is difficult not to conclude from Mr Duell's evidence that Dr Keir was fully aware that she had to take a step within twelve (12) months of the s 552A Conference.
Deputy President's Conclusion
The Deputy President found the delay of twenty-two (22) months from the date of the s 552A Conference to the filing of the Application for leave to proceed to be "considerable" given that the Rules already allow an applicant up to one year to take action to avoid having their matter lapse. We concur with that conclusion. The Deputy President was clearly aware of the relevant authorities on the solicitor/client relationship when he stated the following:
"[37] In the normal course of events a Court or tribunal would be reluctant to 'visit the sins' of a dilatory solicitor on the client of that person. However, the facts in this case distinguish it from the norm. This is because Dr Keir is no ordinary litigant and Mr Duell is no ordinary solicitor.
[38] Dr Keir holds a Bachelor of Arts with Honours in Psychology and a PhD in Psychology. She is highly intelligent and articulate. A cursory reading of her 17 page submission to Q-COMP, as part of her request for a review of the decision of WorkCover, reveals an above average understanding of the operation of the WCR Act, especially the operation of the exclusionary provision at s 32(5) of that Act. Even experienced lawyers often have difficulty understanding the provision.
[39] Accordingly, this is not a situation where Dr Keir was incapable of making her own enquiries about steps she might need to take to protect the integrity of her Appeal and, as such, totally reliant on her solicitor for advice and/or guidance. Further, this was also not a situation where there was some form of power imbalance between a knowledgeable solicitor and an uniformed [sic] or comparatively uneducated client. At all times Dr Keir was quite capable of making any concerns she might have had about Mr Duell's inaction or lack of effort made known to him or to the firm he worked for."
The Deputy President also found that Dr Keir, in or about July 2012, had some awareness of a time element when she raised this issue with Mr Duell on 22 July 2012 when he concluded that she simply "parked" the issue some four days after that conversation with Mr Duell. Nothing was done by Dr Keir to hold Mr Duell to account about his delay or inaction on her file. The Deputy President found that Dr Keir elected not to ask Mr Duell to account for "his lack of progress or to demand that he move her file forward or, if he was unwilling to do either of those things, hand her file to another solicitor".
Whilst the Deputy President found that Dr Keir's solicitor, Mr Duell, did not attempt to progress her matter "with any expedition whatsoever" this lack of expedition was "simply a reflection of his client's preparedness to let time slip by without placing any pressure on him".
It is thus apparent that the Deputy President decided this case on the particular facts and circumstances that existed when he found that the "extent of the delay (343 days), the lack of effort on the part of Dr Keir to ensure the timely progress of her Appeal and the potential for prejudice to the Respondent all combine to establish that the merits of the Application do not favour Dr Keir".
Public Interest
As noted earlier, for leave to be granted the Full Bench must be of the opinion that the matter is "important enough, in the public interest, to give leave". Dr Keir contends that, for a matter to be of public interest so as to allow leave to appeal to a Full Bench, it must involve a point that has a wider application than simply the circumstances of the applicant for leave: see Bice v Bribie Island Golf Club[11] where Moynihan P noted:
"The question, even assuming it to be open for it to be agitated before a Full Bench of the Commission, of whether the arrangement between the applicant and the respondent was a contract of employment or something else, essentially depends on the application of principles of law to the factual circumstances of the particular case.
I have already said that relevantly those here are unique to this case and have no general application."
[11] Bice v Bribie Island Golf Club (1992) 141 QGIG 66.
The authorities on s 342(3) of the Industrial Relations Act 1999 have outlined a number of relevant considerations in determining such applications. In Dibb v AVCO Financial Services Ltd[12] de Jersey P (as His Honour then was), in refusing leave to appeal, said:
[12] Dibb v AVCO Financial Services Ltd (1997) 156 QGIG 103.
"It is an application for leave to appeal which I am statutorily prohibited from granting unless I consider the matter 'is of sufficient importance that an appeal should be brought in the public interest'. I have reached the view that this is essentially a factual contest between the parties without wider potential public ramification."
[27]In Doyles Construction Lawyers v Carmela Serratore[13] it was held by the Full Bench, dismissing the application for leave to appeal, that:
[13] Doyles Construction Lawyers v Carmela Serratore (2002) 169 QGIG 196. This view was further confirmed in Lynette Ann Strugnell v Workpac Light Industrial Pty Ltd (2005) 179 QGIG 412.
"The concept of 'the public interest' is of the widest import, compare Bennio v Australian Broadcasting Corporation (1995-6) 185 CLR 183 at 193 per Brennan CJ (dissenting). There is no justification for limiting the concept in its present context. In particular, there is no justification for limiting the cases in which leave to appeal will be granted to those in which a precedent will be set. The public interest may demand that leave be granted notwithstanding that only the individuals involved in the proposed appeal are concerned: compare Sinclair v Maryborough Mining Warden (1975) 132 CLR 437 at 487 where, in quite a different context, Jacobs J observed 'it may … be in the public interest that the interests of an individual be not overborne'.
…
We consider that there is scope for the balancing of interests. There is a public interest in the finality of litigation. The scarcity of re-trials on the papers and the tendency to limit appeals by way of hearing de novo to cases in which there is no 'full hearing' or record of the hearing at first instance are indications that public policy does not favour second chance hearings…"
[28] In Julie Stanton v QM Technologies Pty Ltd[14] the Full Bench, in dismissing an application under s 342(3) of the Act stated that:
[14] Julie Stanton v QM Technologies Pty Ltd (2002) 171 QGIG 778.
"By s. 342(3) such leave may be granted only if this Full Bench 'considers the matter is important enough, in the public interest, to give leave'. We adhere to the view expressed in Doyles Construction Lawyers v Serratore (2002) 169 QGIG 196 at 197 that:
'There is no justification and no utility in seeking to enhance, to limit or to define the test enunciated by the legislature.'
In particular, we accept that the grant of leave should not be restricted to cases in which it is contended that a Commissioner sitting alone has departed from guidelines set by a Full Bench in a statement of policy and/or to cases which might set a precedent on a matter of industrial principle. There may be cases in which leave will be granted though only the interests of individuals are concerned; see Sinclair v Maryborough Mining Warden (1975) 132 CLR 437 at 487 where, in quite a different context, Jacobs J observed, "[I]t may … be in the public interest that the interests of an individual be not overborne'.
There must, however, be a balancing of interests. There is a public interest in the finality of litigation. In cases about unfair dismissals there is the additional consideration that there is a public interest in ensuring that the cost of the process is not out of all proportion to the value of the subject matter.
Here, a perusal of the decision at first instance reveals neither apparent error nor apparent injustice. No error is particularised by the application for leave to appeal …"
In Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers[15] the Full Bench held that notwithstanding that the power exercised by the Commissioner was discretionary and allows some measure of latitude in judgment, it considered that the applicant had satisfied the "stringent requirements of s. 342(3) of the Act", and leave to appeal was granted.
[15] Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (2006) 181 QGIG 280.
In the majority decision refusing an application for leave to appeal in Australian Liquor, Hospitality and Miscellaneous Workers' Union, Queensland Branch, Union of Employees and Or v Australian Workers' Union of Employees and Or[16] it was stated that:
[16] Australian Liquor, Hospitality and Miscellaneous Workers' Union, Queensland Branch, Union of Employees and Or v Australian Workers' Union of Employees and Or (2004) 176 QGIG 104.
"… an appeal by way of leave is available only on grounds other than error of law or excess, or want, of jurisdiction, s. 342(1). There is much to be said to the view that all issues raised in this matter were alleged 'errors of law'. Even the issue about reference to a Full Bench, raising as it did a matter giving [sic] to the exercise of discretion, appears to raise an error of law in the sense explained in the House v King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. The contention that the exercise of discretion might be reviewed on very much broader grounds under s. 342 seems to us to ignore the proposition that one would not interfere with an exercise of discretion unless satisfied that the exercise of discretion was wrong, compare Coat and Allied Operations Pty Ltd v The Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at para 14 per Gleeson CJ, Gaudron and Hayne JJ".
In the present case, Dr Keir seeks a right to be able to enforce a statutory entitlement to compensation provided by the Workers' Compensation and Rehabilitation Act 2003. That entitlement is personal to her. The application under r 230 of the Rules involved no more than an application of well settled legal principles regarding leave to proceed to the facts and circumstances of her case. Further, it involved an exercise of discretion on the part of the Deputy President.
As noted earlier, the "public interest" aspect of Dr Keir's submission was also to the effect that the decision of the Deputy President:
(a) fundamentally changed the application of relevant legal principles and stands for the proposition that an appellant's mental disability is irrelevant when they have significant intellectual ability, for that such an appellant has a higher duty to ensure that their solicitor acts in a timely manner in relation to each step of their appeal; and
(b) was a precedent decision that would apply to all appellants with a mental illness, whether or not that illness is the subject of the proceeding.
In his oral submissions, Mr Grant contended that mental illness affects people in a myriad of ways. More specifically, he submitted, intellectual capacity is separate from mental illness, and the Deputy President had not drawn that distinction. Rather, the Deputy President had relied on Dr Keir's intellectual capacity to decide that she was able to take appropriate action in relation to the conduct of her appeal.
In his submission, an appellant in Dr Keir's position must have more than an ability to think through a process. They must be able to take action in relation to that process. He also submitted that Dr Keir's capacity did not remain constant, and her capacity to prepare a detailed submission to the Regulator's review unit in January 2011 was in a period substantially different from the period relevant to this case. In his submission, Dr Keir lacked capacity to give relevant instructions or supervise the litigation at or prior to the time of two reports of Dr Catherine Curson (Dr Keir's treating Psychiatrist) dated 5 January 2011 (Exhibit 14) and 26 October 2011 (Exhibit 9).
Mr Grant relied on the following passage from Exhibit 14 where Dr Curson described psychological symptoms that Dr Keir had developed over previous months:
"She becomes extremely anxious when exposed to cues that remind her of her workplace and cannot go anywhere near her old place of work. She reacts badly to phone calls and mail. She is emotionally labile and highly reactive. She has much reduced tolerance for frustration and stress."
The later report (Exhibit 9) contained a passage in substantially the same terms, and stated that Dr Keir's "concentration was impaired" and that she had described "poor concentration and being unable to think or articulate as clearly as she had done prior to the workplace stressors." We note, however, that Dr Curson's medical report dated 5 January 2011 also stated that Dr Keir's "thoughts are logical and sequential. Her insight and judgment are intact".
Mr O'Neill, Counsel for the Regulator, submitted that leave not be granted under s. 342 because, in Summary:
(a) Dr Curson's medical reports do not provide support for the submission advanced on behalf of Dr Keir and, in particular, those reports do not say that her mental illness had any impact on her ability to provide instructions to her solicitor or to make decisions relating to the litigation, nor was there medical evidence that her condition deteriorated after January 2011;
(b) in any case, Dr Keir took actions such as preparing a detailed application for claim review (Exhibits 3 and 10) without the benefit of legal advice on 6 January 2011, the day after the first of those reports (Exhibit 14), and preparing a detailed four page addendum to her submission that was provided at an interview with Christopher Jones, Q-COMP, on 7 February 2011;
(c) the Deputy President's decision did not set some new principle but rather applied relevant judicial decisions to the personal circumstances of Dr Keir, hence there had been no change to the law;
(d) the Deputy President's decision is not a binding decision, but may be persuasive for other Members of the Commission in circumstances where a dilatory appellant has placed themselves in a position where they have to seek leave to proceed; and
(e) there is a public interest in the finality to litigation and in "the just and expeditious disposition of the business of the … commission … at a minimum of expense."
We agree with Mr O'Neill's submission. Having reviewed the relevant Exhibits it is apparent that, whatever implications her mental illness might have had for Dr Keir, that illness did not prevent her from taking an active and informed role in relation to the conduct of her appeal.
More significantly for the purposes of these proceedings, we conclude that the Deputy President's decision did not fundamentally change the application of the relevant legal principles. Nor does that decision stand for the proposition described in Dr Keir's submission.
Conclusion
This is a case where there has been, without doubt, dilatory conduct on the part of Mr Duell, the Solicitor for Dr Keir. It is also a case where Dr Keir herself has not been blameless. The relevant factors have had to be balanced, and as was the case in Keioskie v Workers' Compensation Board of Queensland[17], different minds could have taken a different view.
[17] Keioskie v Workers' Compensation Board of Queensland [1992] QCA 304.
The Deputy President has, however, addressed the relevant circumstances and it is evident that he did not apply any incorrect test. He had a discretion to exercise and it is not apparent that his exercise of that discretion miscarried. The Deputy President's decision did not fundamentally alter the law as submitted by Counsel for the Appellant as he did imply a term into the client-lawyer retainer that the actions of a lawyer are dependent upon the directory conduct of the client. As we have previously found, the Deputy President decided Dr Keir's Application on the particular facts and circumstances of her case.
As the High Court in Sophron v The Nominal Defendant[18] indicated, there is no general principle that the negligence or dilatory conduct of a solicitor can never be ascribed to the client. Each case must be determined on its own facts. The Deputy President found Dr Keir not to have been blameless and, further, that she could have pressed Mr Duell for greater progress on her file. This was particularly so where Dr Keir was aware of a particular time limit. There was thus material before the Deputy President which could support his conclusion: see also the decision of McMurdo J in Vlies v Commonwealth of Australia[19].
[18] Sophron v The Nominal Defendant (1957) 96 CLR 269 at 474.
[19] Vlies v Commonwealth of Australia [2004] QSC 404.
The decision of the Deputy President did not stand for the proposition that an appellant's mental disability is irrelevant when they have significant intellectual ability, or that such an appellant has a higher duty to ensure that their solicitor acts in a timely manner in relation to each step of their appeal. Nor was it a precedent decision that would apply to all appellants with a mental illness, whether or not that illness is the subject of the proceedings.
In all the circumstances we have concluded that this is not a matter of such importance that an appeal should be brought in the public interest. A perusal of the Deputy President's decision does not reveal any apparent error nor an apparent injustice. As we have previously found, the decision of the Deputy President made under s 230 of the Rules involved no more than an application of well settled legal principles regarding leave to proceed to the facts and circumstances of Dr Keir's case.
Dr Keir's Application for Leave to Appeal to a Full Bench (C/2014/13) is thus dismissed. As a result of this decision Dr Keir's Application to Appeal (C/2014/17) is also dismissed.
Key Legal Topics
Areas of Law
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Industrial Law
Legal Concepts
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Appeal
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Jurisdiction
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Judicial Review
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Stay of Proceedings
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