Kelly v Workers' Compensation Regulator - [2025] QIRC 258

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Kelly v Workers' Compensation Regulator [2025] QIRC 258 Kelly, Rodd (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2023/12 & WC/2025/72
PROCEEDING:	Workers' Compensation Appeal
DELIVERED ON:	25 September 2025
MEMBER: HEARD AT: ORDERS:	McLennan IC On the papers *1. Pursuant to r 45(3) of the Industrial Relations (Tribunals) Rules 2011* (Qld) appeals WC/2023/12 and WC/2025/72 are dismissed. 2. The decisions of the Workers' Compensation Regulator dated 16 December 2022 and 5 March 2025 are confirmed. 3. There is no order as to costs.**
CATCHWORDS: LEGISLATION: CASES:	WORKERS' COMPENSATION APPEALS – ENTITLEMENT TO COMPENSATION – where appellant failed to comply with directions orders – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 – where appeals are dismissed Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32 Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 45 Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144 Cooper v Hopgood & Ganim [1998] QCA 114 House v R (1936) 55 CLR 499 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200 Quinlan v Rothwell & Anor [2001] QCA 176 Seymour v Workers' Compensation Regulator [2017] QIRC 061 Smith v Workers' Compensation Regulator [2017] QIRC 070 Treanor v State of Queensland [2019] QIRC 146 Workers' Compensation Regulator v Bero [2019] QIRC 36 Workers' Compensation Regulator v Varga [2019] QIRC 028

Reasons for Decision

Background to Appeal WC/2023/12

Mr Rodd Kelly (the Appellant) filed an appeal against a decision of the Workers' Compensation Regulator (the Respondent) dated 16 December 2022. The subject of that appeal (WC/2023/12) was the Respondent's decision to "set aside the decision of WorkCover to reject Mr Frelek's application and substitute a new decision that the application is one for acceptance, in accordance with section 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld)."[1]
[1] Correspondence from Mr S. May, A/Principal Review Officer, Review Unit, Workers Compensation Regulatory Services to Mr D. Whitelegg, Shine Lawyers (acting for Mr P. Frelek) dated 16 December 2022.
The Respondent's 16 December 2022 decision overturned WorkCover's earlier decision to reject Mr Frelek's application for compensation on the basis that he was not a 'worker' in accordance with the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the Act).[2]
[2] Respondent’s written submissions filed 21 August 2025, [2].
The affidavit of Miss Cheryl-Lea Godfrey affirmed 6 August 2025, and the Respondent's submissions filed 21 August 2025, set out the relevant history of appeal WC/2023/12:
(a)      On or about 9 February 2023, Mr Rodd Kelly lodged an amended notice of appeal against the decision of the Respondent's Review Unit (63153).
(b)      On 5 September 2023, Wonderley & Hall filed a Form 34 – Lawyer's Address of Service in the Queensland Industrial Relations Commission (QIRC).
(c)      Directions 1 to 6 of Directions Order [3] issued by the QIRC on 12 October 2023 were completed by the parties.
(d)      On 19 March 2024, the Appellant wrote to the QIRC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelly v Workers' Compensation Regulator

Details

AGLC: Kelly v Workers' Compensation Regulator [2025] QIRC 258
Case: [2025] QIRC 258
Decision Date: 25 September 2025

CaseChat Overview and Summary

In the case of Kelly v Workers' Compensation Regulator, the appellant contested the decisions of the Workers' Compensation Regulator regarding his entitlement to compensation. The dispute was heard and decided by the Industrial Commission of Queensland. The appellant had previously been involved in proceedings before the Workers' Compensation Regulator, where he was denied compensation. Dissatisfied with these decisions, the appellant appealed to the Industrial Commission, citing errors in the Regulator's decisions.

The central legal issues before the court involved the interpretation and application of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) in the context of appeals from the Workers' Compensation Regulator. Specifically, the court had to determine whether the appellant's failure to comply with certain directions orders warranted the dismissal of his appeals. The appellant argued that despite his non-compliance, his appeals should not be dismissed and should instead be assessed on their merits. Conversely, the Workers' Compensation Regulator contended that the appellant's non-compliance justified the dismissal of the appeals.

The court examined the provisions of rule 45, which empowers the Industrial Commission to dismiss an appeal if the appellant has failed to comply with a directions order. The court found that the appellant had indeed failed to comply with the directions orders issued by the Regulator. Given this non-compliance, the court concluded that the appeals were properly dismissed under rule 45(3). The court further confirmed the decisions of the Workers' Compensation Regulator dated 16 December 2022 and 5 March 2025, upholding the Regulator's findings. No order was made as to costs.

Orders

Orders of the court

McLennan IC

On the papers

1. Pursuant to r 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) appeals WC/2023/12 and WC/2025/72 are dismissed.

2. The decisions of the Workers' Compensation Regulator dated 16 December 2022 and 5 March 2025 are confirmed.

3. There is no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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