Lavender v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 100
•4 June 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Lavender | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 100
| PARTIES: | Lavender, Trevor | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2014/21 | ||||
| PROCEEDING: | Appeal against a decision of the Regulator | ||||
| DELIVERED ON: | 4 June 2014 | ||||
| HEARING DATE: | 2 June 2014 | ||||
| MEMBER: | Vice President Linnane | ||||
ORDERS : |
| ||||
CATCHWORDS: | WORKERS' COMPENSATION LAW - APPEAL AGAINST DECISION - Termination of entitlement to compensation in accordance with ss 144A and 144B of Workers' Compensation and Rehabilitation Act 2003 - Notice of Appeal dismissed pursuant to s 331(b) of Industrial Relations Act 1999 and r 45 of the Industrial Relations (Tribunals) Rules 2011. | ||||
| INDUSTRIAL LAW - APPLICATION TO DISMISS APPEAL - Application pursuant to s 331(b) of the Act and r 45 of the Rules - Appellant failed to comply with directions - Appellant failed to attend Mention and Hearing of the Appeal - Application to dismiss granted. | |||||
| CASES: | Workers' Compensation and Rehabilitation Act | ||||
| 2003, ss 144A and 144B Industrial Relations Act 1999, s 331(b) Industrial Relations (Tribunals) Rules 2011, r 45 | |||||
| APPEARANCES: | Mr G Clark of Simon Blackwood (Workers' Compensation Regulator) for the Respondent No appearance for the Appellant |
[1] On 16 January 2014 Trevor Lavender (Appellant) filed a Notice of Appeal (Appeal) in the Industrial Registry against a decision of Simon Blackwood (Workers' Compensation Regulator) (Regulator) dated 17 December 2013. In that decision the Regulator confirmed a decision of WorkCover Queensland (WorkCover) to terminate the Appellant's entitlement to compensation as and from 31 August 2012 pursuant to ss 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003.
[2] The Notice of Appeal was listed for Callover on 29 January 2014 and a Further Directions Order was issued on 30 January 2014. That Further Directions Order was forwarded to the Appellant. Direction 5 of that Further Directions Order required the Appellant to file in the Industrial Registry and serve on the Regulator a list of the names of the witnesses he intended to call at the hearing of his Appeal by 7 March 2014. The Appellant did not comply with that direction.
[3] On 12 March 2014 an e-mail was forwarded to the Appellant and copied to the Regulator reminding the Appellant of his obligation to comply with that direction and giving the Appellant until 17 March 2014 to comply. That e-mail also reminded the Appellant that he was required to provide to the Regulator by 7 March 2014 a list of the documents he wished to adduce as evidence at the hearing of his Appeal.
[4] The Appellant forwarded an e-mail on 18 May 2014 at 9.40 am. In that e-mail the Appellant said that he could not provide any medical evidence by 7 February 2014 as he had not, at that time, been to his specialist medical practitioner. The Appellant further advised that he had been to the specialist on 14 March 2014 but had not received any medical report at that time. The Appellant further asked for an "extension of this until I receive the letters" i.e. the medical report.
[5] This e-mail was received after the Appellant had already received an extension of time up to 17 March 2014. This e-mail was responded to on 18 March 2014 at 12.38 pm which pointed out the ongoing nature of disclosure and advising the Appellant that no extension of time was required in order for him to provide medical reports which he did not then have in his possession. That e-mail pointed out that the Appellant was required to provide his list of witnesses by 17 March 2014 and extending the time until 18 March 2014 for the Appellant to comply with the directions.
[6] On 21 March 2014 an e-mail was received from the Regulator advising that the Appellant had provided his list of witnesses but no list of documents that he wished to adduce in evidence.
[7] Once again, an e-mail was forwarded to the Appellant on 21 March 2014 at 3.46 pm pointing out his failure to comply with directions.
[8] On 9 May 2014 the Industrial Registry was copied into an e-mail sent to the Appellant from the Regulator which relevantly provided as follows:
"I refer to the above matter and to my phone conversation with you earlier
this afternoon.
I confirm your advices that you will not be proceeding with your appeal.
As discussed, for you to formally withdraw your appeal you must sign and date the attached form (request to discontinue application form 27) and return it to me by fax or e-mail. Upon receipt of the signed form, I undertake to sign on behalf of the Regulator and immediately file it in the Registry.
As discussed, if the appeal is not withdrawn in this manner, the Regulator will have no option but to continue to prepare for the hearing which has been listed for 2 June 2014. If you return the form to me by close of business on 14 May 2014 the Regulator will agree to the withdrawal of your appeal on the basis that each party bear their own costs of and incidental to the appeal. In the event that you don't formally withdraw the appeal by this date and the Regulator incurs any further costs in preparing for the hearing, an order may be sought from the Queensland Industrial Relations Commission to recover those costs, which will include counsel costs and expert witness costs."
[9] In the Further Directions Order dated 30 January 2014 a Mention of the Appellant's Appeal was listed for 13 May 2014 at 3.00 pm. The Appellant did not attend the Mention in person and nor was he available on the telephone numbers provided on his Notice of Appeal. An e-mail was forwarded to the Appellant on 13 May 2014 at 3.41 pm advising him of his continual failure to comply with directions and his failure to appear at the Mention. The Appellant was further advised that in failing to comply with directions he "ran a risk of having" his Appeal "struck out and an order for the Regulator's costs made" against him at the hearing on 2 June 2014.
[10] Apparently the Appellant did sign a Notice of Withdrawal and sent that to the Regulator at some point as an e-mail was received by the Regulator from the Appellant on 14 May 2014 at 8.08 pm stating as follows:
"I am postponing my application pending legal advise [sic] as my WorkCover
nd
case for my 2 injury as [sic] not been finalized. Please note I am NOT cancelling I am postponing!"
[11] On 15 May 2014 at 9.02 am the Regulator responded to the Appellant as follows:
"Please note that the form you have signed and returned is used to withdraw appeals in the Commission. As you have advised that you are not cancelling your appeal, I will not file it in the Registry. If you wish to have your matter adjourned, you will have to make an application to the Queensland Industrial Relations Commission."
[12] It was not until 27 May 2014 at 2.51 pm that the Appellant forwarded the following e-mail:
"I have recently returned an email to Gavin Clark, stating that I cannot go through with my case at the moment as workcover still have not decided on an outcome for my second injury which is relevant to my case, so I am seeking a postponement with my case until I receive further correspondence from workcover."
[13] On 30 May 2014 at 10.06 am an e-mail was forwarded to the Appellant advising that his request for an adjournment had not been granted. The Appellant was further advised that the hearing of his matter would go ahead on Monday 2 June 2014 as per the direction given in the Further Directions Order dated 30 January 2014. The Appellant was further advised that the hearing would commence at 11.00 am rather than the scheduled 10.00 am. He was then advised that he would be required to attend the hearing.
[14] A further e-mail was received on 30 May 2014 stating "[p]lease ring me ASAP regarding my case". My office was involved in a number of matters on 30 May 2014 and were unable to respond to the Appellant's e-mail on that day.
[15] On the morning of the hearing of this Appeal a further e-mail was received from the Appellant. That e-mail was forwarded at 4.33 pm on 30 May 2014. That e-mail provides as follows:
"I have tried contacting you all day with no reply. I contacted your office
and got no where with your staff either.I am sending this again so that may be you will understand that I in no way [sic] will be able to attend the hearing Monday as I am in no financial position to attend or to pay any costs that you may incur [sic] to me.
I asked that this be postponed until WORKCOVER makes their decision
on the second claim as it has all bearing on this one.Once again I am asking for a postponement on these proceedings until I receive all relevant material from WORKCOVER, an [sic] the fact that I am in no financial position to attend or defend my claim at this point.
Please contact me at the earliest time possible so I can confer [sic] my
intentions to you."
[16] Neither of my Associates had any conversation with the Appellant on Friday 30 May 2014 as those in my Chambers were engaged in other matters on that day. The Appellant was advised on 30 May 2014 that his application for an adjournment had not been granted. This was prior to the abovementioned e-mail. Nothing contained in the abovementioned e-mail provided thirty minutes prior to close of business on the last working day prior to the hearing of his appeal caused me to alter my view that any application for an adjournment at such a late stage in the proceedings could be granted. The Appellant had made it clear in the abovementioned e-mail that he was in no financial position to meet the Regulator's costs thrown away as a result of any adjournment. Thus, no adjournment was granted.
[17] The Appellant failed to attend the hearing of his appeal on 2 June 2014. The hearing date of 2 June 2014 had been listed as at 29 January 2014 and advised to the Appellant in the Further Directions Order dated 30 January 2014.
Legislation
[18] The Regulator seeks to have the Appellant's appeal dismissed or struck out pursuant to s 331(b) of the Industrial Relations Act 1999 (Act) or alternatively rule 45 of the Industrial (Tribunals) Rules 2011 (Rules). Section 331 of the Act relevantly provides as follows:
"331 Decisions generally
The court or commission may, in an industrial cause—
(a) make a decision it considers just, and include in the decision a provision it considers appropriate for preventing or settling the industrial dispute, or dealing with the industrial matter, the cause relates to, without being restricted to any specific relief claimed by the parties to the cause; or (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
(i) the cause is trivial; or
(ii) further proceedings by the court or commission are not necessary or desirable in the public interest; or
(c)
order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate."
and r 45 of the Rules relevantly provides as follows:
"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)."
Determination
[19] The history outlined above of non-compliance with the directions issued by the Commission is self-explanatory. This appeal itself arises from a decision of the Regulator to terminate the Appellant's entitlement to compensation as and from 31 August 2012. The Appellant's "ligament and cartilage damage to the right knee" injury, said to have occurred at work on 28 April 2012, was accepted by WorkCover and benefits were paid to the Appellant until the decision to terminate compensation as and from 31 August 2012.
[20] No link whatsoever has been identified between any further compensation claim that the Appellant may currently have with WorkCover and the cessation of compensation for the "ligament and cartilage damage" to the Appellant's right knee. Any new claim for compensation will be dealt with on its own merits.
[21] The Appellant's failure to attend the hearing of the appeal on 2 June 2014 and his failure to attend the Mention of his appeal on 13 May 2014 either in person or via telephone (in the absence of any excuse whatsoever), is a sufficient ground for dismissing this appeal. If one also considers the failure of the Appellant to comply with any direction issued in the Further Directions Order dated 30 January 2014, I am left with no alternative but to dismiss the Appeal in WC/2014/21 as further proceedings by the Commission are not necessary nor desirable in the public interest: see s 331(b) of the Industrial Relations Act 1999.
[22] I further find that the Appellant has failed, without any excuse, to comply with directions issued by the Commission. The Appellant has also failed to attend the Mention of this Appeal listed for hearing on 13 May 2014. No excuse for his non- attendance was received. The Appellant has further failed to attend the hearing of Appeal WC/2014/21 without reasonable excuse. I thus further dismiss WC/2014/21 pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011.
[23] The Regulator does not seek costs in the Appeal.
[24] In the circumstances I make the following orders:
1. The Appellant's request for an adjournment of the hearing of this Appeal contained in the e-mail forwarded at 4.33 pm on 30 May 2014 is not granted.
2. Pursuant to s 331(b) of the Act and r 45 of the Rules, the Appellant's Notice of Appeal filed on 16 January 2014 in WC/2014/21 is dismissed.
3. The decision of the Regulator made on 17 December 2013 that the Appellant was no longer incapacitated, as at 31 August 2012, due to the accepted work-related injury is confirmed.
4. The decision of the Regulator made on 17 December 2013 that the Appellant, as at 31 August 2012, no longer required medical treatment to manage his accepted work-related injury is confirmed.
[25] Order accordingly.
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