Keir v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 25

No judgment structure available for this case.

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Keir v Simon Blackwood (Workers' Compensation

Regulator) [2014] QIRC 025

PARTIES:

Keir, Gaye Emily

(Applicant)

v

Simon Blackwood (Workers' Compensation
Regulator)

(Respondent)

CASE NO:

B/2013/37

PROCEEDING:

Application for leave to proceed after 1 year's delay

DELIVERED ON:

6 February 2014

HEARING DATE:

15 August 2013

MEMBER:

Deputy President Bloomfield

ORDERS :

1. Application dismissed.

2.	Costs reserved.

CATCHWORDS:

Application for leave to proceed - Industrial Relations Act 1999 - Industrial Relations (Tribunals) Rules 2011 - Lapse of proceeding after at least 1 year's delay - Explanation for the delay - Dilatory solicitor - Prejudice to respondent - Merits of the application - Application dismissed.

CASES:

Industrial Relations (Tribunals) Rules 2011 R 230,
R 230(3)

Christopher William Savage v Q-COMP
(WC/2011/119) - Decision
<

Tyler v Custom Credit Corporation [2000] QCA 178

Vibe Allerup v Heka Pty Ltd t/as Brisbane Dental

Group [1999] 160 QGIG 112

Keioskie v C. B. Baker Brisbane Pty Ltd and The
Workers' Compensation Board of Queensland

[1992] QCA 304

Debra Kwan-Lai Barbour v Queensland Health
(TD/2010/69) - Decision
<
Q-COMP v Aqueen Teng Deng (C/2010/56) -

Decision <

Roy Carmody v WorkCover Queensland [1998] 157
QGIG 119

APPEARANCES:

Mr S. Grant, Counsel instructed by Quinn & Scattini
Lawyers, for the Applicant.

Mr F. Lippett, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Background
[1] On 19 June 2013 Dr Gaye Emily Keir filed an Application in the Queensland Industrial Relations Commission (the Commission) in which she sought leave to proceed under Rule 230 - Lapse of proceeding after at least 1 year's delay, of the Industrial Relations (Tribunals) Rules 2011 (the Rules) in Matter No. WC/2011/136 (the Appeal). The last formal event in relation to Dr Keir's prosecution of the Appeal was a conference under s 552A of the Workers' Compensation and Rehabilitation Act 2003 (WCR Act) held on 1 August 2011.
Legislation
[2] Rule 230 of the Rules provides:
"230 Lapse of proceeding after at least 1 year's delay
(1) This rule applies if -

(a) an application starting a proceeding has been filed; and
(b) no action has been taken in relation to the application for at least
year since the last action was taken in the application.

(2) A party may only take further action on the application with an order of the
court, commission or registrar.

(3) An application for an order under subrule (2) must be in the approved form
and state the following –

(a) the steps taken in the proceeding;
(b) an explanation for the circumstances of the delay;

(c)

the steps (including a timetable) proposed to be taken to progress the proceeding;

(d)

any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out;
(e) the merits of the proceeding;

(f)

why the court, commission or registrar should make the order despite the delay."

Evidence
[3]     In satisfaction of the obligations imposed upon her by the provisions of R 230(3) of the Rules Dr Keir submitted an Affidavit in which she recorded a chronology/table of events during the period 1 August 2011 to 21 May 2013, being the last date she provided additional information pertaining to the current Application to her Solicitor.
[4]     Of particular note were the following events:

 2 August 2011 - hand delivery of a signed authority to her then Solicitors
to obtain a medical report from her general practitioner;
 19 September 2011 - hand delivery of a signed authority to her then
Solicitors to obtain a medical report and records from her psychiatrist;



17 October, 2 November, 8 November, 6 December, 12 December 2011 and 11 January 2012 - contact by email and telephone with her then Solicitors to discuss concerns about the content of their request to her psychiatrist and to establish progress of the matter;



12 January 2012 - email response from her then Solicitors advising of their intention to contact Counsel who represented Dr Keir at 1 August 2011 conference;



2 February 2012 - phone call by Dr Keir to her then Solicitors expressing her dissatisfaction with the factual content of their letter to her psychiatrist. Request for the Principal of her then Solicitors to return her call;



10 February 2012 - written advice by Dr Keir to her then Solicitors terminating the Client Service Agreement and requesting return of her file;
 24 February 2012 until 17 April 2012 - dispute between Dr Keir and her
then Solicitors in relation to quantum of costs and return of her file;
 30 April 2012 - Dr Keir collects her file from her then Solicitors after
returning from a short overseas trip (eight days);



1 May 2012 - Dr Keir delivers her file and supporting documentation to her family Solicitor, Mr Peter Duell of Quinn & Scattini Lawyers. Mr Duell advises of his intention to contact Mr Horneman-Wren of Counsel about the Appeal;
 10 May 2012 - Email by Dr Keir to Mr Duell requesting his advice
concerning contact with Counsel;
 23 May 2012 - Email response by Mr Duell concerning his attempts to
contact Counsel;



23 May 2012 - Email from Dr Keir to Mr Duell requesting an update. Email response the following day to the effect that additional information sought by Counsel would be provided by Mr Duell from the Applicant's file;
 7 June 2012 - Email from Dr Keir to Mr Duell seeking an update on
advice received from Counsel;
 Telephone advice by Mr Duell (date not provided) advising of his
absence on extended sick leave;



3 July 2012 - Email from Dr Keir to Mr Duell seeking an update. Response from Mr Duell on 5 July 2012 advising of his intention to contact Counsel;



22 July 2012 - Email from Dr Keir to Mr Duell concerning her stress levels because of lack of progress in the matter and seeking his advice about whether a time extension was required to provide legal argument to Q-COMP;
 26 July 2012 - phone response from Mr Duell advising of "his continuing
ill-health and update about Counsel";
 26 July 2012 - Email from Dr Keir to Mr Duell concerning her anxiety
about the delay in providing legal argument to Q-COMP;



16 August 2012 - Email follow up by Dr Keir to Mr Duell seeking an update. Phone advice received from Mr Duell (date not provided) regarding his absence for approximately one month;
 7 October 2012 - Email from Dr Keir to Mr Duell seeking an update;



16 October 2012 - Email from Dr Keir to Mr Duell seeking an update. Telephone response from Mr Duell advising of his intention to contact Counsel;



29 October 2012 - Email from Dr Keir to Mr Duell concerning her stress levels because of lack of progress together with an enquiry about taking the matter to another Counsel;



5 November 2012 - Email from Dr Keir to Mr Duell for advice following Mr Horneman-Wren's appointment to the District Court. Advice from Mr Duell the following day concerning Mr Horneman-Wren's intention to recommend alternate Counsel;
 20 November 2012 - Email from Dr Keir to Mr Duell concerning her
anxiety about lack of progress in the matter;
 ? November 2012 (date not provided) until 4 December 2012 - Mr Duell
is absent from the workplace because of illness;
 11 December 2012 - Mr Duell informs Dr Keir of name of new Counsel;



13 December 2012 - Email from Mr Duell to Dr Keir advising of new Counsel's intention to lodge documents with QIRC (being notification to the Commission of the Appointment of Quinn & Scattini as Solicitors on the record);
 18 January 2013 - Dr Keir sends Mr Duell transcript of QIRC conference
held on 1 August 2011 for provision to new Counsel;
 4 February 2013 - Email from Dr Keir to Mr Duell for an update, which
also contains "expression of anxiety about finalisation of matter";



18 February 2013 - Email from Dr Keir to Mr Duell seeking an update. In response Dr Keir is advised that Mr Duell is on sick leave following surgery;
 5 March 2013 - Mr Duell advises Dr Keir by telephone of his return to
work;
 25 March 2013 - Mr Duell advises Dr Keir of his progress with Counsel;
 5 April 2013 - Mr Duell advises Dr Keir of his progress with Counsel;



Late April 2013 - Mr Duell advises Dr Keir of his continuing ill-health and a further period of leave. She is requested to contact him on 14 or 16 May 2013;
 14 May 2013 - Dr Keir contacts Mr Duell as previously requested and a
meeting is set down for 16 May 2013;



16 May 2013 - Dr Keir attends a meeting with Mr Duell. She is requested to provide a chronology of events relating to the delay in pursuing the matter;
 21 May 2013 - Dr Keir provides the requested information to Mr Duell;
 18 June 2013 - Dr Keir signs Application for leave to proceed, which is
lodged in the Commission on the following day.
[5]     In the course of her evidence under cross-examination Dr Keir acknowledged that her extensive contact with her then Solicitors between 2 November 2011 and 2 February 2012 was in relation to her concerns about the content of the letter her then Solicitors had written to her psychiatrist. She also accepted that rather than allow her Solicitors to again write to her psychiatrist as her then Counsel had suggested, she decided to terminate the Client Service Agreement with her Solicitors at the end of February 2012 "because I had spent several months trying to get the question that they were supposed to asked".
[6]     Dr Keir also acknowledged that she sought advice from Mr Duell about the steps she might need to take to recover her file from her previous Solicitors before formally engaging him on 1 May 2012 in relation to her Appeal. In addition, Dr Keir accepted:

 because of Mr Duell's illness and periodic absences very little happened
in relation to her Appeal during 2012;

 notwithstanding his absences, and the delays, she did not ask Quinn and Scattini to appoint another Solicitor to handle her matter. This was "because I retained Mr Duell";
 the absence of progress in the matter increased her stress levels and in July 2012 she contacted Mr Duell about the need to try to request an extension of time to provide legal arguments to Q-COMP; and
 she did not make any contact in 2012 with either the Commission or Q-COMP about steps she might need to take to progress her Appeal or any time limitations.

[7] Evidence was also given, by affidavit, by Mr Peter Duell in connection with his handling of Dr Keir's Appeal as well as his action, or lack of action, in progressing it, as follows:

 15 May 2012 - he responded to Dr Keir by email advising her he had left
a message with Mr Horneman-Wren;



24 May 2012 - he informed Dr Keir he had spoken to Mr Horneman-Wren who had requested further information before accepting the brief. However, he did not provide the material to Mr Horneman-Wren at that time;



after Dr Keir followed him up by email on 7 June 2012 he subsequently advised her by telephone (date unspecified) that he was on leave due to ill-health and was unsure when he would be returning to work;
 5 July 2012 - he informed Dr Keir by email he had returned to work on 3
July 2012 and would attempt to contact Mr Horneman-Wren;



on or about 24 July 2012 he contacted Dr Keir by telephone and advised her he had not been able to get in touch with Mr Horneman-Wren but would continue to try to contact him;



26 July 2012 - Dr Keir emailed him to advise that she would proceed to act on the basis that nothing further was required to obtain an extension of time in which to provide a legal submission to Q-COMP unless he advised otherwise. He did not respond to this email;
 on or about 29 August 2012 he formally briefed Mr Horneman-Wren;



he did not provide written instructions to Mr Horneman-Wren and did not alert him to the issue of possible timeframes. Mr Horneman-Wren accepted the brief on the basis he would attempt to review the material at some (undefined) point in the future after which they would have a conference;



in the period 1 August 2012 until 6 December 2012 Dr Keir sought updates from him in relation to progress in the matter. Apart from advising Dr Keir (in or around August 2012) that he would be on leave for approximately one month these requests for updates were not responded to;



4 December 2012 - he informed Dr Keir that he would attempt to obtain the name of another Counsel from the former staff of Justice Horneman-Wren;



6 December 2012 - he briefed Mr Simon Grant of Counsel in relation to progressing the matter. On that date Mr Grant sought copies of additional documents, including a copy of the transcript of the s 552A conference;



between 4 February 2013 and 19 February 2013 he was absent from work due to ill-health which required hospitalisation and subsequent recovery at home. During this period he did not raise with anyone at Quinn & Scattini the need to follow up Mr Grant's request for further documents;
 4 April 2013 - he provided Mr Grant with a copy of the transcript of the
s 552A conference and requested his advice;
 10 April 2013 - Mr Grant provided his advice in relation to the status of
the matter and the need for Dr Keir to seek leave to proceed;
 during the period 12 April to 17 April 2013 he was again on leave due to
ill-health;



14 May 2013 - he requested Dr Keir to provide him with a chronology of events for use in the Application for leave to proceed. This was provided to him on 21 May 2013; and



11 June 2013 - he briefed Mr Grant to settle the Application for leave to proceed as well as the accompanying affidavit on behalf of Dr Keir. Settled documents were provided to him the following day.

Submissions on behalf of the Applicant
[8] Mr Grant, of Counsel, who represented Dr Keir, drew my attention to a decision of Commissioner Black on 20 February 2013 in Christopher William Savage and Q-COMP[1] which the Commissioner noted that the tests to be applied in deciding whether to grant leave to proceed were those set out by the Queensland Court of Appeal in Tyler v Custom Credit Corporation[2], being a decision relating to obtaining leave to proceed under R 389 of the Uniform Civil Procedures Rules 1999.
[1] Christopher William Savage v Q-COMP (WC/2011/119) - Decision <
[2] Tyler v Custom Credit Corporation [2000] QCA 178
[9] In Tyler the Court of Appeal stated (per Atkinson J, McMurdo P and McPherson JA agreeing in joint reasons) there are a number of factors to be considered in deciding whether to grant leave to proceed including at [2] the following:

"(a) how long ago the events alleged in the statement of claim occurred and
what delay there was before the litigation was commenced;

(b)

how long ago the litigation was commenced or causes of action were added;
(c) what prospects the plaintiff has of success in the action;
(d) whether or not there has been disobedience of Court orders or directions;
(e) whether or not the litigation has been characterised by periods of delay;

(f)

whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;

(g)

whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;

(h)

whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
(i) how far the litigation has progressed;

(j)

whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
(k) whether there is a satisfactory explanation for the delay; and

(l)

whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial."

[10] Importantly, in Mr Grant's submissions, Atkinson J stated that the discretion of a Court or judicial body to grant leave to proceed is not fettered by rigid rules but should take into account the relevant circumstances of the particular case. From the background in this matter, and in line with the statements of Atkinson J in Tyler and the process adopted by Commissioner Black in Savage v Q-COMP, Mr Grant submitted that the relevant factors to be identified and considered in this matter (as opposed to any requirement to satisfy every factor identified in Tyler) are:

 the extent of the delay;
 the explanation for the delay;
 whether the delay has been caused by the Applicant's lawyers being
dilatory;
 whether the delay has or will result in prejudice to the Respondent; and
 the prospects of success of the Appeal.

The extent of the delay
[11] Relying on the decision of (then) Chief Commissioner Hall in Vibe Allerup v Heka Pty Ltd t/as Brisbane Dental Group[3] (affirmed on appeal by Williams P at (1999) 161 QGIG 268). Mr Grant submitted that "any action" in R 230 did require some formal step in the proceedings and that it might include, for example, communication between solicitors or discovery where such process had been requested and occurred.
[3] Vibe Allerup v Heka Pty Ltd t/as Brisbane Dental Group [1999] 160 QGIG 112
[12] While the last "formal" step in Dr Keir's Appeal was the s 552A conference on 1 August 2011, which was approximately 22 months before filing of the Application for leave to proceed, it was arguable that the steps taken by Dr Keir's former Solicitors to obtain medical reports constituted "action" within the terms of R 230. This submission was made on the basis that such action constituted conduct that fell within that which was agreed by the parties at the end of the s 552A conference. If that action was taken into consideration the delay became approximately 20 months.
The explanation of the delay
[13] Mr Grant submitted that the first period in the delay (between 1 August 2011 and 30 April 2012) can be further broken down to individual components, as follows:

 an initial period during which Dr Keir's former solicitors attempted to obtain further medical evidence on her behalf from her GP, with such conduct being considered as being within the normal bounds of professional practice;
 following consideration of that material a decision to seek further
medical evidence from her treating psychiatrist;
 a delay in seeking former Counsel's view over the Christmas/New Year
period;
 a two month period during which Dr Keir's former Solicitor's held her
file on the basis of a lien against outstanding fees.

[14] The second period in the delay (between 1 May 2012 and 1 August 2012) is characterised by inaction on the part of Dr Keir's current legal representative, despite his knowledge as to the applicable timeframes, notwithstanding repeated follow-up of him by Dr Keir. This period, in Mr Grant's submission, is a critical period for determination of the reason for delay in taking a further step in the proceeding within 12 months of the s 552A conference.

[15]   The third period (immediately after 1 August 2012 and the briefing of current Counsel on 6 December 2012) is evidenced by attempts by Mr Duell to attempt to brief, then subsequently brief, Senior Counsel after which that person was appointed to the Bench. After Senior Counsel's appointment to the District Court further time was lost until current Counsel was briefed on 6 December 2012.
[16]   The final period (between 7 December 2012 and June 2013), in Mr Grant's submission, "can be described as being beset with difficulties due to the ongoing ill-health of the Applicant's solicitor and lack of conduct on his part". However, during that period Dr Keir responded in a timely manner to requests made of her and, but for the Christmas/New Year period, the delay in progressing the matter is explained by the conduct of Dr Keir's Solicitor.
Whether the delay has been caused by the Applicant's lawyers being dilatory
[17]   Mr Grant submitted that notwithstanding that Dr Keir knew of the possible timeframe in which she had to take action, the Court of Appeal in Keioskie v C. B. Baker Brisbane Pty Ltd and The Workers' Compensation Board of Queensland[4] (per Thomas J, Macrossan CJ and McPherson JA agreeing) noted that a lay person is entitled to rely upon the professionalism of their legal representative in protecting their rights. In this respect, it was submitted that the evidence given by Dr Keir established that she was reliant upon her legal representative and that this fact had been made known to him. It was also clear that Dr Keir's solicitor "has been remiss in progressing this matter from when first briefed on the matter".
[4] Keioskie v C. B. Baker Brisbane Pty Ltd and The Workers' Compensation Board of Queensland [1992]
[18]   Mr Grant also distinguished the circumstances of the present case from those of a Ms Barbour in a 2011 case (Debra Kwan-Lai Barbour v Queensland Health[5]). In that case, Ms Barbour was aware of the relevant time limits and acted in contravention of the clear statements to her as to what was required of her to progress her matter. In this case, Dr Keir's legal representatives had not provided her with any direction about time limits until after the expiry of the 12 month period mentioned in R 230. Accordingly, in Mr Grant's submission, the fact that the delay in Dr Keir's attempts to progress her Appeal have been occasioned by the conduct of her legal representative should weigh heavily in favour of leave to proceed being granted.
[5] Debra Kwan-Lai Barbour v Queensland Health (TD/2010/69) - Decision <
Whether the delay has or will result in prejudice to the Respondent
[19]     It was submitted that the fact the incident the subject of the Appeal occurred in the first six months of 2010 is not determinative of whether any prejudice will be suffered as a result of the delay. Further, the Appeal proceedings would not require locating large numbers of witnesses. The two key Q-COMP witnesses remain on the board of Dr Keir's former employer.
[20]   The witnesses have provided multiple statements to Q-COMP as well as in related proceedings in what was Fair Work Australia (FWA). In those circumstances, it is arguable that there would be little prejudice to the Respondent if leave to proceed was granted.
The prospects of success of the Appeal
[21] Since the s 552A conference held on 1 August 2011 further medical evidence has been obtained which has narrowed the evidence and arguments to be presented on behalf of Dr Keir in the Appeal proceedings to those expressed below;

 the unreasonable and unrealistic expectations placed upon Dr Keir to complete the workload of the two positions of Chief Executive Officer and General Manager, respectively, of her former employer; and
 the conduct of co-members of the Finance Committee of her former
employer.

[22]    Mr Grant submitted that any conclusions the Commission might reach in relation to either, or both, of those matters could only be after a full and complete trial.
[23]   In other words, although he did not state it, it was not open to the Commission as presently constituted to determine that her Appeal had limited prospects of success.
Submissions on behalf of the Respondent
[24]   Dr Keir's Application for leave to proceed was strongly opposed by Mr Lippett of Counsel, who appeared for the Respondent. Mr Lippett's submissions highlighted the nature of Dr Keir's original application for workers' compensation, lodged on 17 August 2010, as well as the contents of her Application for Review. This latter document identified that her psychological injury developed over a period of time but was seriously exacerbated by events that occurred on 26 May 2010, 28 July 2010 and 2 August 2010, respectively.
[25]    Mr Lippett also highlighted that Q-COMP's Reasons for Decision included reference to the medical evidence taken into account which, inter alia, asserted that the stated date of Dr Keir's work related stress injury was 2 August 2010 and that she had first seen her GP on 6 August 2010. However, at the s 552A conference on 1 August 2010 Dr Keir, through her then Counsel, raised a different case from that which had been previously considered by WorkCover Queensland (WorkCover) and by Q-COMP. Her Counsel asserted that Dr Keir had been managing a depressive condition for a number of years with medication and that the nature of her injury was an exacerbation of that pre-existing condition. Her Counsel further asserted that the exacerbation of her condition might already have occurred in the early part of January 2010, when she reported certain events to her GP. This would have taken her injury outside of the s 32(5) exclusion under the WCR Act.
[26] In the ultimate, it was agreed at the s 552A conference that the legal representatives of Dr Keir would prepare a broad outline of the arguments in relation to exacerbation and provide those to Q-COMP in a timely fashion. However, according to Mr Lippett, no submissions were received and there was no other communication from Dr Keir for almost two years, when the Application for leave to proceed was filed in June 2013.
[27] Mr Lippett said that two medical reports (one from her GP dated 27 August 2011 and one from her psychiatrist dated 26 October 2011) addressed to her then solicitors did not, in any way, support the contentions about an aggravation which had been advanced by Dr Keir's Counsel at the s 552A conference on 1 August 2011. Relevantly, the GP's report included the comment "I did not notice the exacerbation or emergence of a new condition in January or March 2010". The report from her psychiatrist, in answer to a question as to whether the injury was an aggravation or a new injury, opined that Dr Keir "presented with an Adjustment Disorder with anxiety which was a new condition". As such, Mr Lippett said, it should have been abundantly clear to the Applicant as early as the end of October 2011 that there was no substance to either of the propositions advanced at the compulsory conference.
[28]   Turning to the chronology of events, Mr Lippett highlighted Dr Keir's extensive contact with her previous solicitors about their allegedly deficient letter to her psychiatrist, which continued into February 2012. The remainder of February, then March and April, were taken up with arguments with her solicitors about the adequacy of their services and the quantum of their fees. After she engaged her present solicitors very little action was taken to progress her Appeal, notwithstanding that she "was aware of a time problem at least of some kind" as evidence by her enquiry on 22 July 2012 about the need to request a time extension to provide legal argument to Q-COMP.
[29]   Mr Lippett submitted that while Dr Keir was not legally qualified it was also the case that she was a highly intelligent and articulate individual who was well capable of advancing her Appeal. Although aware of some obligation to prepare submissions to Q-COMP in the period leading up to 1 August 2012, she took no steps to ask Quinn and Scattini to appoint a different solicitor to handle her matter and made no contact with the Commission's Registry to seek advice.
[30]    Mr Lippett also drew my attention to several authorities which he said were relevant to the application of R 230. In the case of Q-COMP v Aqueen Teng Deng[6], Hall P said at [10], so far as is here relevant:
"… I can understand that the apparent strength of an applicant's underlying
case is not irrelevant… However, the serious consideration is of the issue
whether a non-compliant Application for Review should be acted upon. The critical matters will be the circumstances, extent, and explanation for the non- compliance. The underlying merit of the Application for Compensation
cannot provide the 'special circumstance' to justify pressing on…"
[6] Q-COMP v Aqueen Teng Deng (C/2010/56) - Decision <

[31] Previously, in Roy Carmody v WorkCover Queensland[7] de Jersey P (as he then was) said:
"… now that I come to consider exercising my discretion… it is important to
note the sorts of considerations which bear upon the exercise – the extent of the delay which has occurred…, any explanation for that delay, whether
extending time… would cause prejudice to the Respondent to be seen of
course against any prejudice to the Applicant…, the degree of apparent enthusiasm for prosecution of the appeal… and so far as might be gauged
summarily in any reliable way the prospects of success of the appeal on the
[7] Roy Carmody v WorkCover Queensland [1998] 157 QGIG 119
merits."

[32] Mr Lippett also made the following submissions:



the extent of the delay is considerable. Dr Keir not only let the first year after the s 552A conference "meander by", she then permitted a little less than six weeks short of a second year to pass before taking a step to advance her appeal;



the only explanation offered seems to be that two solicitors let her down by not acting diligently. Dr Keir did not, in her Affidavit, accept any personal responsibility for the delay. This was despite wasting a great deal of time arguing about ancillary matters with her former solicitors and then waiting patiently for her present solicitor's health to improve without asking the firm to appoint another solicitor to act in his stead;



there will be prejudice to the Respondent if the Application for leave to proceed is granted. The workplace events about which Dr Keir complains took place around the middle of 2010. Witnesses would therefore be required to try to recall a mass of detail about what was said and what happened a number of years previously;



while it might be submitted that Dr Keir demonstrated some enthusiasm to prosecute her Appeal by periodically contacting her solicitors, and by bringing the present Application, in the circumstances of this particular applicant such action should have only very limited weight. Dr Keir is not a poorly educated, unsophisticated person where it could be legitimately argued that she was entitled to rely completely on a person in authority like a solicitor. She is highly intelligent and has shown, for example, by the creation of her comprehensive written submissions to Q-COMP, that she is a very capable person. Further, in terms of her dealings with her previous solicitors and recovery of her file, she has demonstrated some knowledge of the law;



although she knew that time was rapidly slipping by Dr Keir sat back, at various times, waiting for her solicitor's health to improve. "... the
chronology indicates that in relation to the true level of enthusiasm to
prosecute the Appeal there was more smoke than flame"; and



although it is difficult for the Commission at this stage to form any precise view about the Applicant's prospects of success of her Appeal it is to be noted that the tactical decision of her former Counsel, a very experienced practitioner in this jurisdiction, to float the concept of a new and different case at the s 552A conference is very telling.

Conclusions and decision
[33]   In reaching my conclusions and decision in this matter I have carefully considered the submissions advanced by Mr Grant as well as the cases to which he has referred. In responding to the particular matters raised by him in paragraphs [11] to [23], inclusive, I propose to do so in a global sense rather than topic by topic.
[34]   On my calculations, Dr Keir's Application for leave to proceed was filed some 323 days after the expiry of the one year which was available to her to take some action to progress her Appeal. Such delay is considerable given that the Rules already allow an applicant up to one year to take action to avoid having their matter lapse.
[35]   On behalf of Dr Keir, Mr Grant has squarely laid the blame for the delay in prosecuting her Appeal at the feet of her (now) solicitor, Mr Duell. In doing so, Mr Grant said that while Dr Keir responded in a timely manner to requests of her by Mr Duell, the extensive delay was attributable to the ongoing ill-health and resultant absences of Mr Duell as well as lack of action on his part.
[36]   While it is undoubtedly true that Mr Duell was absent from work because of ill-health at various times during the relevant period it is also the case, based upon the evidence provided, that there was still reasonably regular contact between he and Dr Keir by either email or telephone during the whole period in question. The only periods where contact appears not to have been possible was for some unspecified times during August 2012 and November 2012 and a short period during February 2013, when Mr Duell was hospitalised.
[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 a 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 that 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 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.
[40]   Importantly, the evidence clearly discloses that in or about July 2012 Dr Keir had some awareness, or was at least alert to, some sort of time element in relation to lodging additional submissions with Q-COMP. In this respect, the evidence discloses she raised this issue with Mr Duell on 22 July 2012 and that, without any further follow-up on her part or his, simply "parked" that matter only four days later. In my view, had she been truly concerned about some form of time limit, or held the professed concerns about Mr Duell's lack of progress in prosecuting her Appeal she now professes, she would have taken some further steps to obtain a reply from him and/or make her own enquiries in relation to the time limit issue.
[41]    Rather, to borrow a term used by Mr Lippett, Dr Keir seemed to let the whole matter "meander" along without taking any positive action to ask Mr Duell to explain the apparent lack of effort on his part to progress her Appeal or to hold him to account in relation to such lack of progress. Weeks and months went by without anything at all happening.
[42]    On my observation, the lack of preparedness on the part of Dr Keir to take Mr Duell to task in relation to his lack of effort on her behalf seems to come back to some form of personal relationship she had with him as her "family solicitor". In any event, if that observation is incorrect, it was still her election not to ask him 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.
[43]   For his part, Mr Duell does not - apart from recording that he was ill and absent from the office during various periods - attempt to explain why it was that he did not attempt to progress Dr Keir's Appeal in a more timely fashion. It might have been that because he was personally known to Dr Keir he might have thought she would be more tolerant of any delay on his part if he was busy dealing with other matters. It might have also been that because he apparently knew her at a personal level he gave less priority to her work in the hope she might not complain. Whatever his reasons, he did not progress her matter with any expedition whatsoever. However, on my observation, his lack of expedition was simply a reflection of his client's preparedness to let time slip by without placing any pressure on him.
[44]   In addition, the evidence clearly establishes that Dr Keir consciously elected to let her file sit idle during Mr Duell's absences, rather than request Quinn and Scattini to pass the file to another solicitor, "because I retained Mr Duell". To me, this further demonstrates a lack of any real concern on her part about the pace at which her Appeal was being progressed.
[45]    The approximate three year time gap between the relevant events and the lodging of the Application for leave to proceed will, notwithstanding the existence of various statements obtained during FWA proceedings and Q-COMP's consideration of Dr Keir's workers' compensation application, have the serious potential to prejudice the Respondent. This is because any witnesses who might be called by it will be required to recall events which occurred during 2010. Further, any cross- examination of Dr Keir will be impacted by the degree of recall of any witnesses about matters she might argue contributed to her decompensation.
[46]   In the circumstances of this case, I have decided not to exercise my discretion to grant Dr Keir's Application for leave to proceed in her Appeal. In my opinion, Dr Keir possessed the necessary intellect and capacity to, firstly, establish whether there were any time limits associated with the prosecution of her Appeal and, secondly, take the necessary steps to ensure that those time frames were met.
[47]    Further, while Dr Keir now (somewhat conveniently) lays the blame for the delay in prosecuting her Appeal at the feet of her solicitor, the evidence clearly establishes that she was somewhat complicit in the whole matter because of her complete failure to demand that Mr Duell take action to progress her Appeal or to otherwise hold him to account for his lack of action. While Mr Duell's lack of attention to her matter required her to do much more to move him along, she simply sent periodic "prompts" to him which were not followed up by any "please explain" demands.
[48]    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.
[49]    For the foregoing reasons I refuse, and now dismiss, Application No. B/2013/37. I reserve the issue of costs.

[50] I determine and Order accordingly.

QCA 304

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Citations

Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 025

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Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Keioskie v Workers' Compensation Board of Queensland [1992] QCA 304

(a)	an application starting a proceeding has been filed; and
(b)	no action has been taken in relation to the application for at least

(a)	the steps taken in the proceeding;
(b)	an explanation for the circumstances of the delay;
(c)	the steps (including a timetable) proposed to be taken to progress the proceeding;
(d)	any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out;
(e)	the merits of the proceeding;
(f)	why the court, commission or registrar should make the order despite the delay."

	2 August 2011 - hand delivery of a signed authority to her then Solicitors to obtain a medical report from her general practitioner;
	19 September 2011 - hand delivery of a signed authority to her then Solicitors to obtain a medical report and records from her psychiatrist;
	17 October, 2 November, 8 November, 6 December, 12 December 2011 and 11 January 2012 - contact by email and telephone with her then Solicitors to discuss concerns about the content of their request to her psychiatrist and to establish progress of the matter;
	12 January 2012 - email response from her then Solicitors advising of their intention to contact Counsel who represented Dr Keir at 1 August 2011 conference;
	2 February 2012 - phone call by Dr Keir to her then Solicitors expressing her dissatisfaction with the factual content of their letter to her psychiatrist. Request for the Principal of her then Solicitors to return her call;
	10 February 2012 - written advice by Dr Keir to her then Solicitors terminating the Client Service Agreement and requesting return of her file;
	24 February 2012 until 17 April 2012 - dispute between Dr Keir and her then Solicitors in relation to quantum of costs and return of her file;
	30 April 2012 - Dr Keir collects her file from her then Solicitors after returning from a short overseas trip (eight days);
	1 May 2012 - Dr Keir delivers her file and supporting documentation to her family Solicitor, Mr Peter Duell of Quinn & Scattini Lawyers. Mr Duell advises of his intention to contact Mr Horneman-Wren of Counsel about the Appeal;
	10 May 2012 - Email by Dr Keir to Mr Duell requesting his advice concerning contact with Counsel;
	23 May 2012 - Email response by Mr Duell concerning his attempts to contact Counsel;
	23 May 2012 - Email from Dr Keir to Mr Duell requesting an update. Email response the following day to the effect that additional information sought by Counsel would be provided by Mr Duell from the Applicant's file;
	7 June 2012 - Email from Dr Keir to Mr Duell seeking an update on advice received from Counsel;
	Telephone advice by Mr Duell (date not provided) advising of his absence on extended sick leave;
	3 July 2012 - Email from Dr Keir to Mr Duell seeking an update. Response from Mr Duell on 5 July 2012 advising of his intention to contact Counsel;
	22 July 2012 - Email from Dr Keir to Mr Duell concerning her stress levels because of lack of progress in the matter and seeking his advice about whether a time extension was required to provide legal argument to Q-COMP;
	26 July 2012 - phone response from Mr Duell advising of "his continuing ill-health and update about Counsel";
	26 July 2012 - Email from Dr Keir to Mr Duell concerning her anxiety about the delay in providing legal argument to Q-COMP;
	16 August 2012 - Email follow up by Dr Keir to Mr Duell seeking an update. Phone advice received from Mr Duell (date not provided) regarding his absence for approximately one month;
	7 October 2012 - Email from Dr Keir to Mr Duell seeking an update;
	16 October 2012 - Email from Dr Keir to Mr Duell seeking an update. Telephone response from Mr Duell advising of his intention to contact Counsel;
	29 October 2012 - Email from Dr Keir to Mr Duell concerning her stress levels because of lack of progress together with an enquiry about taking the matter to another Counsel;
	5 November 2012 - Email from Dr Keir to Mr Duell for advice following Mr Horneman-Wren's appointment to the District Court. Advice from Mr Duell the following day concerning Mr Horneman-Wren's intention to recommend alternate Counsel;
	20 November 2012 - Email from Dr Keir to Mr Duell concerning her anxiety about lack of progress in the matter;
	? November 2012 (date not provided) until 4 December 2012 - Mr Duell is absent from the workplace because of illness;
	11 December 2012 - Mr Duell informs Dr Keir of name of new Counsel;
	13 December 2012 - Email from Mr Duell to Dr Keir advising of new Counsel's intention to lodge documents with QIRC (being notification to the Commission of the Appointment of Quinn & Scattini as Solicitors on the record);
	18 January 2013 - Dr Keir sends Mr Duell transcript of QIRC conference held on 1 August 2011 for provision to new Counsel;
	4 February 2013 - Email from Dr Keir to Mr Duell for an update, which also contains "expression of anxiety about finalisation of matter";
	18 February 2013 - Email from Dr Keir to Mr Duell seeking an update. In response Dr Keir is advised that Mr Duell is on sick leave following surgery;
	5 March 2013 - Mr Duell advises Dr Keir by telephone of his return to work;
	25 March 2013 - Mr Duell advises Dr Keir of his progress with Counsel;
	5 April 2013 - Mr Duell advises Dr Keir of his progress with Counsel;
	Late April 2013 - Mr Duell advises Dr Keir of his continuing ill-health and a further period of leave. She is requested to contact him on 14 or 16 May 2013;
	14 May 2013 - Dr Keir contacts Mr Duell as previously requested and a meeting is set down for 16 May 2013;
	16 May 2013 - Dr Keir attends a meeting with Mr Duell. She is requested to provide a chronology of events relating to the delay in pursuing the matter;
	21 May 2013 - Dr Keir provides the requested information to Mr Duell;
	18 June 2013 - Dr Keir signs Application for leave to proceed, which is lodged in the Commission on the following day.

	notwithstanding his absences, and the delays, she did not ask Quinn and Scattini to appoint another Solicitor to handle her matter. This was "because I retained Mr Duell";
	the absence of progress in the matter increased her stress levels and in July 2012 she contacted Mr Duell about the need to try to request an extension of time to provide legal arguments to Q-COMP; and
	she did not make any contact in 2012 with either the Commission or Q-COMP about steps she might need to take to progress her Appeal or any time limitations.

	15 May 2012 - he responded to Dr Keir by email advising her he had left a message with Mr Horneman-Wren;
	24 May 2012 - he informed Dr Keir he had spoken to Mr Horneman-Wren who had requested further information before accepting the brief. However, he did not provide the material to Mr Horneman-Wren at that time;
	after Dr Keir followed him up by email on 7 June 2012 he subsequently advised her by telephone (date unspecified) that he was on leave due to ill-health and was unsure when he would be returning to work;
	5 July 2012 - he informed Dr Keir by email he had returned to work on 3 July 2012 and would attempt to contact Mr Horneman-Wren;
	on or about 24 July 2012 he contacted Dr Keir by telephone and advised her he had not been able to get in touch with Mr Horneman-Wren but would continue to try to contact him;
	26 July 2012 - Dr Keir emailed him to advise that she would proceed to act on the basis that nothing further was required to obtain an extension of time in which to provide a legal submission to Q-COMP unless he advised otherwise. He did not respond to this email;
	on or about 29 August 2012 he formally briefed Mr Horneman-Wren;
	he did not provide written instructions to Mr Horneman-Wren and did not alert him to the issue of possible timeframes. Mr Horneman-Wren accepted the brief on the basis he would attempt to review the material at some (undefined) point in the future after which they would have a conference;
	in the period 1 August 2012 until 6 December 2012 Dr Keir sought updates from him in relation to progress in the matter. Apart from advising Dr Keir (in or around August 2012) that he would be on leave for approximately one month these requests for updates were not responded to;
	4 December 2012 - he informed Dr Keir that he would attempt to obtain the name of another Counsel from the former staff of Justice Horneman-Wren;
	6 December 2012 - he briefed Mr Simon Grant of Counsel in relation to progressing the matter. On that date Mr Grant sought copies of additional documents, including a copy of the transcript of the s 552A conference;
	between 4 February 2013 and 19 February 2013 he was absent from work due to ill-health which required hospitalisation and subsequent recovery at home. During this period he did not raise with anyone at Quinn & Scattini the need to follow up Mr Grant's request for further documents;
	4 April 2013 - he provided Mr Grant with a copy of the transcript of the s 552A conference and requested his advice;
	10 April 2013 - Mr Grant provided his advice in relation to the status of the matter and the need for Dr Keir to seek leave to proceed;
	during the period 12 April to 17 April 2013 he was again on leave due to ill-health;
	14 May 2013 - he requested Dr Keir to provide him with a chronology of events for use in the Application for leave to proceed. This was provided to him on 21 May 2013; and
	11 June 2013 - he briefed Mr Grant to settle the Application for leave to proceed as well as the accompanying affidavit on behalf of Dr Keir. Settled documents were provided to him the following day.

"(a)	how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
(b)	how long ago the litigation was commenced or causes of action were added;
(c)	what prospects the plaintiff has of success in the action;
(d)	whether or not there has been disobedience of Court orders or directions;
(e)	whether or not the litigation has been characterised by periods of delay;
(f)	whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
(g)	whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
(h)	whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
(i)	how far the litigation has progressed;
(j)	whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
(k)	whether there is a satisfactory explanation for the delay; and
(l)	whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial."

	the extent of the delay;
	the explanation for the delay;
	whether the delay has been caused by the Applicant's lawyers being dilatory;
	whether the delay has or will result in prejudice to the Respondent; and
	the prospects of success of the Appeal.

	an initial period during which Dr Keir's former solicitors attempted to obtain further medical evidence on her behalf from her GP, with such conduct being considered as being within the normal bounds of professional practice;
	following consideration of that material a decision to seek further medical evidence from her treating psychiatrist;
	a delay in seeking former Counsel's view over the Christmas/New Year period;
	a two month period during which Dr Keir's former Solicitor's held her file on the basis of a lien against outstanding fees.

	the unreasonable and unrealistic expectations placed upon Dr Keir to complete the workload of the two positions of Chief Executive Officer and General Manager, respectively, of her former employer; and
	the conduct of co-members of the Finance Committee of her former employer.

	the extent of the delay is considerable. Dr Keir not only let the first year after the s 552A conference "meander by", she then permitted a little less than six weeks short of a second year to pass before taking a step to advance her appeal;
	the only explanation offered seems to be that two solicitors let her down by not acting diligently. Dr Keir did not, in her Affidavit, accept any personal responsibility for the delay. This was despite wasting a great deal of time arguing about ancillary matters with her former solicitors and then waiting patiently for her present solicitor's health to improve without asking the firm to appoint another solicitor to act in his stead;
	there will be prejudice to the Respondent if the Application for leave to proceed is granted. The workplace events about which Dr Keir complains took place around the middle of 2010. Witnesses would therefore be required to try to recall a mass of detail about what was said and what happened a number of years previously;
	while it might be submitted that Dr Keir demonstrated some enthusiasm to prosecute her Appeal by periodically contacting her solicitors, and by bringing the present Application, in the circumstances of this particular applicant such action should have only very limited weight. Dr Keir is not a poorly educated, unsophisticated person where it could be legitimately argued that she was entitled to rely completely on a person in authority like a solicitor. She is highly intelligent and has shown, for example, by the creation of her comprehensive written submissions to Q-COMP, that she is a very capable person. Further, in terms of her dealings with her previous solicitors and recovery of her file, she has demonstrated some knowledge of the law;
	although she knew that time was rapidly slipping by Dr Keir sat back, at various times, waiting for her solicitor's health to improve. "... the
chronology indicates that in relation to the true level of enthusiasm to
prosecute the Appeal there was more smoke than flame"; and
	although it is difficult for the Commission at this stage to form any precise view about the Applicant's prospects of success of her Appeal it is to be noted that the tactical decision of her former Counsel, a very experienced practitioner in this jurisdiction, to float the concept of a new and different case at the s 552A conference is very telling.