Nemet v Workers' Compensation Regulator - [2022] QIRC 49

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Nemet v Workers' Compensation Regulator [2022] QIRC 049
PARTIES:	Nemet, Marisa (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NOS.:	WC/2016/125 & WC/2017/90
PROCEEDING:	Application to dismiss
DELIVERED ON:	22 February 2022
HEARING DATE:	14 October 2021
MEMBER:	Power IC
HEARD AT:	Brisbane
ORDERS:	1. The application is granted. *2. That matters WC/2016/125 and WC/2017/90 are dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011* (Qld). 3. I make no order as to costs.**
CATCHWORDS:	WORKERS' COMPENSATION – application to dismiss – where the appellant was directed to attend a hearing and failed to do so –– consideration of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld)
LEGISLATION:	Industrial Relations (Tribunals) Rules 2011 (Qld), rr 6, 45 and 137 Uniform Civil Procedure Rules 1999 (Qld) Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32
CASES:	Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 27 FCR 388 Paul Scott v State of Queensland & Ors [2019] QIRC 115 Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59; (2005) 180 QGIG 1209 Quinlan v Rothwell & Anor [2002] 1 QdR 647 Tyler v Custom Credit Corp Limited & Ors [2000] QCA 178 Workers' Compensation Regulator v Varga [2019] QIRC 028
APPEARANCES:	Ms M. Nemet, as self-represented Appellant. Mr P.B. Rashleigh of Counsel, directly instructed by the Respondent.

Reasons for Decision

Introduction

The Workers' Compensation Regulator ('the Respondent') has made an application to the Commission seeking an order that the appeals filed by Ms Marisa Nemet ('the Appellant') be dismissed pursuant to rr 45 and 137 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').
Background
The Appellant applied to WorkCover Queensland ('WorkCover') for compensation on 12 December 2015 for psychiatric or psychological injuries said to have occurred in the course of her employment with Hally Labels. The Appellant then sought a review of WorkCover's decision to reject this claim. The Respondent confirmed the decision of WorkCover to reject the Appellant's application. The Appellant subsequently filed an appeal against the Respondent's decision on 28 July 2016 (WC/2016/125).
On 18 May 2015, the Appellant lodged an application with WorkCover for compensation for a psychiatric or psychological injury said to be a secondary injury to her accepted physical injury. On 25 May 2017, the Appellant filed a further appeal against the Respondent's decision to confirm WorkCover's rejection of her claim (WC/2017/90).

The Commission joined both appeals to be heard concurrently on 21 July 2017.

The Appellant sought and was granted extensions of time to comply with directions orders on at least eight occasions between 2016 and 2018,[1] with each extension continually delaying the matter proceeding to hearing.
[1] 22 August 2016; 7 October 2016; 1 November 2016; 29 November 2016; 11 May 2017; 4 October 2017; 23 March 2018 and 1 May 2018.
A Directions Order was issued on 9 February 2018 confirming that the hearing was set down for 8, 9 and 10 May 2018.
By 30 April…

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.

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Details

Case: [2022] QIRC 49
Decision Date: 22 February 2022

CaseChat Overview and Summary

The Workers' Compensation Regulator ('the Regulator') applied to the Commission seeking an order that the appeals filed by Ms Marisa Nemet ('the Appellant') be dismissed. The Appellant had applied for workers' compensation from WorkCover Queensland ('WorkCover') for psychiatric or psychological injuries said to have occurred in the course of her employment with Hally Labels. The Regulator confirmed WorkCover's decision to reject the Appellant's claim and the Appellant filed an appeal against the Regulator's decision. The Commission joined both appeals and set down a hearing date. The Appellant requested further extensions of time to prepare for the hearing, which resulted in the cancellation of the listed hearing dates. The matters were subsequently listed for a hearing on 9, 10 and 11 March 2020. The Appellant contacted the Commission on 9 March 2020 seeking a further adjournment due to health concerns. The hearing was adjourned and the remaining days vacated due to the Appellants' health issues. The Commission listed a resumed hearing for 25, 26 and 27 August 2020. The Regulator's witnesses made arrangements to attend. The Appellant did not attend the resumed hearing and did not provide any evidence.

The legal issues the court was required to decide included whether the Appellant's failure to attend the resumed hearing justified the dismissal of her appeals pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld). The court had to consider whether the Appellant's conduct demonstrated a disregard for the tribunal's process and whether the dismissal of her appeals was an appropriate and just outcome. The court also had to consider whether the Appellant's health issues justified a further adjournment of the hearing.

The court found that the Appellant's failure to attend the resumed hearing and provide any evidence demonstrated a disregard for the tribunal's process. The court noted that the Appellant had been granted numerous extensions of time to prepare for the hearing and had repeatedly delayed the matter proceeding to hearing. The court found that the Appellant's conduct warranted the dismissal of her appeals pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld). The court noted that the Regulator's witnesses had made arrangements to attend the hearing and that the Appellant had not provided any evidence to support her appeals. The court found that the dismissal of the Appellant's appeals was an appropriate and just outcome.

The court granted the Regulator's application and dismissed the Appellant's appeals. The court made no order as to costs.

Orders

Orders of the court

1. The application is granted.

2. That matters WC/2016/125 and WC/2017/90 are dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld).

3. I make no order as to costs.

Background

Background to the litigation

The Workers' Compensation Regulator ('the Respondent') has made an application to the Commission seeking an order that the appeals filed by Ms Marisa Nemet ('the Appellant') be dismissed pursuant to rr 45 and 137 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').Background The Appellant applied to WorkCover Queensland ('WorkCover') for compensation on 12 December 2015 for psychiatric or psychological injuries said to have occurred in the course of her employment with Hally Labels. The Appellant then sought a review of WorkCover's decision to reject this claim. The Respondent confirmed the decision of WorkCover to reject the Appellant's application. The Appellant subsequently filed an appeal against the Respondent's decision on 28 July 2016 (WC/2016/125). On 18 May 2015, the Appellant lodged an application with WorkCover for compensation for a psychiatric or psychological injury said to be a secondary injury to her accepted physical injury. On 25 May 2017, the Appellant filed a further appeal against the Respondent's decision to confirm WorkCover's rejection of her claim (WC/2017/90). The Commission joined both appeals to be heard concurrently on 21 July 2017. The Appellant sought and was granted extensions of time to comply with directions orders on at least eight occasions between 2016 and 2018,[1] with each extension continually delaying the matter proceeding to hearing. [1] 22 August 2016; 7 October 2016; 1 November 2016; 29 November 2016; 11 May 2017; 4 October 2017; 23 March 2018 and 1 May 2018. A Directions Order was issued on 9 February 2018 confirming that the hearing was set down for 8, 9 and 10 May 2018. By 30 April 2018, the Respondent had filed and served Notices to Attend on the lay and expert witnesses it intended to call to give evidence. The Appellant contacted the Commission on 1 May 2018 requesting an extension of two months to further prepare for the hearing, following which a notice of cancellation of the listed dates for hearing was issued by the Commission. The matters were again listed for hearing at the Appellant's request on 9, 10 and 11 March 2020. By 3 February 2020, the Respondent had again filed and served Notices to Attend on its witnesses to give evidence at the hearing on the listed dates. The Appellant contact the Commission on 9 March 2020 seeking a further adjournment due to health concerns. The hearing commenced on 10 March 2020 and medical evidence was taken from the medical witnesses before the hearing was adjourned and the remaining days vacated due to the Appellants' health issues. The Commission sought an update from the Appellant as to the future progression of the matters on 12 May 2020, following which a resumed hearing was listed for 25, 26 and 27 August 2020. By 17 August 2020 the Respondent had again filed and served Notices to Attend on its witnesses to give evidence. The Respondent's witnesses made arrangements to attend with one witness arranging to be off work to attend via Zoom from Victoria and the employer arranging coverage for the remaining witnesses at their expense.[2][2] Affidavit of Lesley Shaw filed 14 October 2021 [59].

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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