Kelly v Workers' Compensation Regulator
[2025] QIRC 258
•25 September 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: PARTIES: | Kelly v Workers' Compensation Regulator [2025] QIRC 258 Kelly, Rodd v Workers' Compensation Regulator |
| 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 requesting the matter be placed in abeyance due to the Appellant lodging a further review application with the Respondent's Review Unit.
(e) On 20 March 2024, the QIRC wrote to the parties advising that the directions order had been vacated and they will await further instructions from the parties.
(f) On 13 March 2025, Cheryl-Lea Godfrey emailed the Appellant consenting to the appeal being placed in abeyance for a further six months.
(g) On 13 March 2025, Cheryl-Lea Godfrey emailed the Appellant consenting to the appeal being placed in abeyance for a further six months.
(h) On 19 March 2025, the Appellant emailed the QIRC requesting the matter be placed in abeyance for a further six months.
(i) On 19 March 2025, the QIRC emailed the parties and advised that the matter had been placed in abeyance and the matter will lapse on 19 September 2025 if the Appellant takes no action to progress the matter.[3]
[3] Respondent’s written submissions filed 21 August 2025, [4].
Background to Appeal WC/2025/72
Mr Rodd Kelly also filed an appeal against a decision of the Workers' Compensation Regulator dated 5 March 2025. The subject of that appeal (WC/2025/72) was the Respondent's decision to "confirm the insurer's decision to accept the application for compensation (Section 32)."[4]
[4] Review Decision of the Workers’ Compensation Regulator, made by Mr K. Goncalves, dated 5 March 2025.
The Respondent's 5 March 2025 decision confirmed "the Insurer's decision to accept Mr Paul Frelek's application for compensation in accordance with section 32 of the Act.[5]
[5] Respondent’s written submissions filed 21 August 2025, [3].
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/2025/72:
(j) On 8 April 2025, the Appellant lodged an appeal in the QIRC against the decision of the Respondent's Review Unit (71183).
(k) On 9 April 2025, the QIRC issued the parties with a directions order.
(l) In accordance with direction 2 of the directions order Cheryl-Lea Godfrey emailed the Appellant on 1 May 2025, serving the Respondent's list of documents on the Appellant.
(m) On 27 June 2025, the QIRC emailed the Appellant stating that they had not received the Appellant's statement of facts and contentions.
(n) On 30 June 2025, Wonderley and Hall emailed the QIRC and copied in the Respondent advising they have advised the Appellant of their intention to withdraw as his solicitor on the record.
(o) On 7 July 2025, the QIRC emailed the parties requesting that the parties advise how they wish to proceed with the matter.[6]
[6] Respondent’s written submissions filed 21 August 2025, [4].
Mention of Appeals WC/2023/12 and WC/2025/72
On 8 July 2025, Miss Godfrey replied to the QIRC's inquiry. She requested matters WC/2023/12 and WC/2025/72 be set down for Mention.[7]
[7] Respondent’s written submissions filed 21 August 2025, [4].
On 17 July 2025, the QIRC listed matters WC/2023/12 and WC/2025/72 for a telephone Mention before Commissioner McLennan on 23 July 2025 at 10 am. The parties were asked to provide a contact number to the QIRC by 12 pm the business day prior.[8]
[8] Respondent’s written submissions filed 21 August 2025, [4].
On 17 July 2025, Miss Godfrey complied and emailed the QIRC providing her contact number for the Mention.[9]
[9] Respondent’s written submissions filed 21 August 2025, [4].
Mr Kelly did not contact the QIRC to provide his contact number, prior to the telephone Mention. That was despite an email reminder to do so being issued by the Industrial Registry on 23 July 2025 at 8:45 am.
On 23 July 2025, Miss Godfrey appeared at the telephone Mention on behalf of the Respondent, as directed.[10]
[10] Respondent’s written submissions filed 21 August 2025, [4].
Mr Kelly failed to appear at the telephone Mention. That was despite my Associate making three attempts to contact Mr Kelly on the mobile number listed in his Appeal Notices. The calls to Mr Kelly made by my Associate went directly to voicemail. I noted those attempts to reach Mr Kelly at the commencement of the telephone Mention.[11]
[11] Transcript of Mention held on 23 July 2025, lines 5 – 7.
The Notice of Listing issued on 17 July 2025 clearly stated that both parties' attendance was required:
A matter has been called by the Queensland Industrial Relations Commission and all named parties are required to attend…[12]
[12] Notice of Listing, issued 17 July 2025.
Mr Kelly's former legal representative, Mr Dempster (Special Counsel, Wonderley & Hall), was no longer acting for him by that time. Mr Dempster had advised the QIRC of that fact, in an email dated 30 June 2025.
At the telephone Mention, Miss Godfrey advised that it was the Respondent's intention to file an application to have the two appeals struck out, given Mr Kelly's non-compliance with directions.[13] Miss Godfrey explained that Mr Frelek's (injured worker) "common law claim will not proceed until these appeals have been dealt with by the commission."[14]
[13] Transcript of Mention held on 23 July 2025, lines 18 – 22.
[14] Transcript of Mention held on 23 July 2025, lines 32 – 35.
Application filed
On 6 August 2025, the Respondent filed a Form 4 – Application in existing proceedings asking the Commission to dismiss Mr Kelly's Appeals WC/2023/12 and WC/2025/72 on the following grounds:
1. The conduct of Mr Kelly in failing to respond to the Commission's correspondence and failure to attend the mention on 23 July 2025 indicates that he has no intention to comply with the Commission's orders or to prosecute his appeals.
2. Mr Paul Frelek, the injured worker, has a common law claim with WorkCover Queensland which is currently on hold and WorkCover will not progress the common law claim until the appeals have been finalised by the Commission.
3. The applicant seeks an order that the appeals filed by Mr Kelly (WC/2023/12 and WC/2025/72) be dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011.[15]
[15] Form 4 – Application in existing proceedings filed 6 August 2025, 3.
The Application was accompanied by a very comprehensive Affidavit, affirmed by Miss Godfrey on 6 August 2025.
Directions issued to hear the parties on the Application
On 12 August 2025, I issued Directions to hear the parties as to whether Appeals WC/2023/12 and WC/2025/72 should be dismissed under rule 45 of the Industrial Relations (Tribunals) Rules 2011.
Respondent's submissions
The Respondent complied with the Directions to file written submissions on 21 August 2025.
The Respondent set out the extent of Mr Kelly's non-compliance as follows:
i. Provision of a list of documents (WC/2025/72)
ii. Provision of a statement of facts and contentions (WC/2025/72)
iii. Provision of a list of witnesses and outlines of evidence (WC/2025/72)
iv. Attendance at a mention (WC/2023/12 & WC/2025/72)v.Provision of submissions in relation to the current application (WC/2023/12 & WC/2025/72).[16]
[16] Respondent’s written submissions filed 21 August 2025, [5].
The Respondent further submitted that:
In addition to these matters of non-compliance, to the Respondent's knowledge, the Appellant has taken no action to progress appeal WC/2023/12 since 12 October 2023 and no action to progress appeal WC/2025/72 since it was filed on 8 April 2025.
The Appellant's conduct in this regard has left the Respondent with no confidence that he is likely to further advance either appeal.[17]
[17] Respondent’s written submissions filed 21 August 2025, [6]-[7].
The Respondent submitted rule 45 of the Industrial Relations (Tribunals) Rules 2011 provided that the Commission may "dismiss the proceeding"[18] because Mr Kelly had "failed to attend the hearing"[19] (a Directions hearing or Mention, in this case) and Mr Kelly had "failed to comply with the order"[20] (several orders, in this case) of the Commission.
[18] Rule 45(3), Industrial Relations (Tribunals) Rules 2011.
[19] Rule 45(1), Industrial Relations (Tribunals) Rules 2011.
[20] Rule 45(2), Industrial Relations (Tribunals) Rules 2011.
The Respondent drew the Commission's attention to President Hall's decision in Quaedvlieg and Others v Boral Resources (Qld) Pty Ltd,[21] citing Thomas JA in Quinlan v Rothwell,[22] that urged "efficiency in the use of the courts as a public resource…" in determination of a strike out application (albeit made on different grounds to the present matter).[23]
[21] (2005) 180 QGIG 1209.
[22] [2001] QCA 176.
[23] Respondent’s written submissions filed 21 August 2025, [8]-[9].
The Respondent contended that Mr Kelly's persistent failures to comply with the Commission's orders, including non-attendance at the Mention, warranted the exercise of discretion pursuant to r 45 to dismiss the appeals. The Respondent noted several recent Commission decisions in which such discretion was exercised.[24]
[24] Respondent’s written submissions filed 21 August 2025, [10]-[12].
The Respondent sought no order for costs.[25]
[25] Respondent’s written submissions filed 21 August 2025, [13].
Appellant failed to make submissions
Mr Kelly did not file written submissions in accordance with the Directions. Further, Mr Kelly did not seek an extension of time to do so, or provide any excuse for his continued non-compliance.
Rule 45
Rule 45 of the Industrial Relations (Tribunals) Rules 2011 provides that (emphasis added):
45 Failure to attend or to comply with directions order
(1) This rule applies if—
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
(b) the party fails to attend the hearing or conference.
(2) This rule also applies if—
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
(b) the party fails to comply with the order.
(3) The court, commission or registrar may—
(a) dismiss the proceeding; or
(b) make a further directions order; or
(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
(d) make orders under paragraphs (b) and (c).
The power under r 45(3)(a) of the Tribunal Rules involves an exercise of discretion. Foremost, discretionary powers must be "exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion."[26] In exercising that discretion, I am informed by several factors, as set out in this Decision. Ultimately, however, I must consider the particular circumstances of this case.[27]
[26] House v R (1936) 55 CLR 499, 503.
[27] Cooper v Hopgood & Ganim [1998] QCA 114, 6; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.
In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[28] their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to r 45 of the Tribunal Rules. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):
As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.[29]
[28] [1990] 98 ALR 200.
[29] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200, 210.
Such reasoning was followed by O'Connor VP in Workers' Compensation Regulator v Varga[30] and Seymour v Workers' Compensation Regulator,[31] as well as by Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor.[32]
[30] [2019] QIRC 028.
[31] [2017] QIRC 061.
[32] [2019] QIRC 144.
Here, Mr Kelly's default is certainly continuing, given his ongoing failure to comply with the substantive requirements outlined in the Directions Orders, including non-attendance at the telephone Mention. Mr Kelly has even failed to provide an informal explanation of delay and instead has blatantly disregarded the Directions Orders, Notice of Listing and email correspondence from the Industrial Registry.
As earlier noted, Mr Kelly has been issued with email correspondence from the Industrial Registry and copied into correspondence from the Respondent that ought to have served as a reminder of his obligations under the Directions Orders and a prompt to action the requirements.
Mr Kelly's default imposes an unacceptable burden on the Respondent, as it is unable to meaningfully respond to the appeals. Mr Kelly's persistent non-compliance with Directions for matter WC/2025/72 includes his ongoing failure to provide a list of documents, statement of facts and contentions, list of witnesses and outlines of evidence. I further note Mr Kelly's non-compliance extended to failure to attend the telephone Mention regarding both appeals on foot. As earlier observed, Mr Kelly has also failed to provide submissions as to whether his appeals should be dismissed under r 45, without any request for extension of time to do so or excuse for non-compliance being made via the Industrial Registry.
By failing to respond to the Directions Orders, or the requirement to attend the telephone Mention listed, Mr Kelly has and continues to extend the time between now and the determination of his appeals. As earlier noted, Mr Kelly filed his appeal in matter WC/2023/12 on 3 February 2023. Mr Kelly filed his appeal in matter WC/2025/72 on 8 April 2025. Whilst the appeals are on foot, the Respondent continues to incur the expense of defending the matter - and Mr Frelek, the injured worker, is denied his right to have his common law claim progressed by WorkCover Queensland. That burden is compounded in circumstances where Mr Frelek is suffering financial hardship, as reported by Miss Godfrey at the telephone Mention. In my view, they are all compelling reasons to deal with this matter as expeditiously as possible.
Mr Kelly's continuous disregard for compliance with the express tasks and timelines prescribed in the Commission's Directions Orders has evinced in my mind that this behaviour will be repeated, and this matter will be drawn out substantially to the Respondent's detriment. For that reason, I am not convinced that giving further chances to explain and adhere to the Directions Orders is appropriate. Mr Kelly has already evinced disregard for the Commission's Directions, thereby signalling a lack of intention to proceed with his appeals.
Even if Mr Kelly did so intend to proceed with his appeals, despite his repeated and persistent failures to abide by the Commission's Directions, his non-compliance demonstrates an unwillingness or inability to proceed in accordance with the Tribunal Rules.
I have no doubt that Mr Kelly understands his obligations under the Directions Orders with respect to time periods, as this was clearly stipulated therein.
I acknowledge that Mr Kelly is now a self-represented litigant, although he had formerly engaged legal representation. In that regard, I would note that a lack of representation is a misfortune, which should be met with necessary procedural assistance, but is not a privilege entitling a self-represented litigant to special consideration at the expense of the party or parties who are represented or more experienced in the jurisdiction.[33]
[33] See Workers' Compensation Regulator v Bero [2019] QIRC 36; Treanor v State of Queensland [2019] QIRC 146.
In circumstances where Directions Orders were issued, Notice of Listing issued requiring the parties' attendance at the telephone Mention, and email correspondence sent from the Industrial Registry to serve as a reminder of his obligations – Mr Kelly's non-compliance cannot be said to arise from his lack of understanding of the law.
Noting that Mr Kelly has failed to comply with Directions Orders, failed to attend the telephone Mention and failed to file written submissions regarding the current application, the cumulative effect of his non-compliance is substantial enough to satisfy me that Mr Kelly is either unwilling to comply or for some reason is unable to do so and as a result, the Respondent's case is prejudiced.
In the exercise of my discretion under r 45 of the Tribunal Rules, I am also minded to consider the purpose of the Tribunal Rules, as set out in r 6:
6 Purpose of rules
The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.
The terms 'just' and 'expeditious' may sometimes appear to be at odds. Australian Courts and Tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided (emphasis added):
There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time, the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.[34]
[34] Quinlan v Rothwell & Anor [2001] QCA 176, 8.
While his Honour was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions[35] as the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunal Rules.
[35] See Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.
In Smith v Workers' Compensation Regulator, O'Connor DP (as he then was) concluded:
The Commission has an obligation to actively manage the matters filed in the Industrial Registry and to ensure the parties comply with the directions orders issued by it. The Rules aid the Commission to case manage its list; to assist the parties to prepare their cases; to ensure the efficient use of the Commission's time and resources; and to assist in the resolution of the real issues in the proceedings.[36]
[36] [2017] QIRC 070, [10].
Adherence to Direction is necessary to ensure fairness between the parties as well as to ensure the expeditious advancement of the matter. Repeated failure to comply with Directions is inconsistent with r 6 of the Tribunal Rules. Further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter.
Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under r 45 of the Tribunal Rules to dismiss both Mr Kelly's appeals.
I order accordingly.
Orders:
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.
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