Oglecevac v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 46
•3 March 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Oglecevac v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 046 |
PARTIES: | Oglecevac, Lisa v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO/S: | WC/2013/166 |
PROCEEDING: | Application for vacation of hearing dates |
DELIVERED ON: | 3 March 2014 |
HEARING DATE: | 27 February 2014 |
MEMBER: | Vice President Linnane |
ORDERS : | 1. The hearing dates of 3 - 7 March 2014 be vacated. 2. The Applicant pay the costs of the Respondent in the sum of $5,280.00. 3. The costs be paid within twenty-one days of release of this decision. 4. The Appeal not be further listed for directions or hearing until the costs are paid. 5. The Appeal not be further listed for directions or hearing until such time as the Applicant has received a written medical report from Dr Stephen Huntsman, Consultant Psychiatrist, to the effect that the Applicant is psychiatrically and/or psychologically fit to give evidence and be cross-examined at the hearing of this Appeal. |
| CATCHWORDS: | Application for vacation of hearing dates - Application granted on conditions - Applicant to pay costs of Regulator in the amount of $5,280.00 - Costs to be paid within twenty-one days - Further consequential orders made. |
CASES: | Industrial Relations Act 1999, s. 274 - General powers of the Commission. |
| APPEARANCES: | Ms O. Perkiss, Counsel instructed by Everingham Lawyers for the Applicant. |
The substantive matter is an appeal by Lisa Oglecevac (Applicant) against a decision of Simon Blackwood (Workers' Compensation Regulator) (Regulator) to reject her notice of claim for damages relying upon s. 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act). The Notice of Appeal (Appeal) was lodged on 23 May 2013.
At a Callover on 9 July 2013 directions for the further conduct of the Appeal were issued. The Further Directions Order issued on 12 July 2013 included a direction for a Mention of the Appeal on 3 February 2014 and a further direction that the hearing of the Appeal be listed for 3 - 7 March 2014.
In correspondence dated 31 January 2014, Solicitors acting for the Applicant relevantly informed the Industrial Registry as follows:
"…
We estimate the Trial will take 3 days. We note that the Appellant has medical witnesses on the following dates and times:
1.Dr Stephen Huntsman on 3 March at 2.00 pm;
2.Dr Sinnathamaby on 3 March at 3.00 pm;
3.Dr Karen Chau on 4 March at 11.30 am.
In addition to the expert witnesses the Appellant will also be calling Ms Chel Quinn and the Appellant herself of course.
The Appellant estimates her case will go into half of the second day of Hearing leaving a further day and a half for the Regulator's factual witnesses. We estimate that the Hearing could conclude in three days subject to the Regulator's arrangements for its witnesses.
From the Appellant's perspective there are no issues that need to be addressed in relation to this matter at the Mention on Monday, 3 February 2014. The Appellant does not require the matter to be mentioned on Monday if the Regulator and Vice President don't require a Mention."
On 17 February 2014 the Industrial Registry received correspondence from Solicitors acting for the Applicant which enclosed copies of three medical reports, five medical certificates and the records of two medical practitioners. The forwarding of this information was in compliance with Direction 14 of the Further Directions Order issued on 12 July 2014.
The next communication received by the Industrial Registry was an e-mail on 26 February 2014 from Solicitors acting for the Applicant. This e-mail contained advice that the Applicant's Solicitors had recently been advised by the Applicant's treating Psychiatrist that the Applicant would not be able to give evidence at the hearing due to her medical condition. That correspondence further provided that:
"Unfortunately given our client's fragile psychiatric condition we will have to vacate the trial dates."
Attached to that e-mail was correspondence dated 25 February 2014 from Dr Stephen Huntsman, Consultant Psychiatrist, to the following effect:
"Lisa has been under my care since 09/08/2010 for treatment of her depressive illness.
Lisa continues to experience quite severe symptoms of depression and anxiety, particularly in relation to events related to her former employment at New Farm Clinic.
I have explored these issues in depth with Lisa. In my opinion she is unfit to testify in relation to these matters, as the distress provoked by this will result in a marked deterioration in her mental state."
Upon receipt of this correspondence, the matter was urgently listed for hearing at 5.00 pm on 27 February 2014 to deal with what should have been an application by Solicitors for the Applicant to vacate the hearing dates. Instead, the advice in the correspondence of 26 February 2014 was that Solicitors for the Applicant were vacating the trial dates. It should be noted that this advice was received only two business days prior to the commencement of the actual hearing.
At the hearing on 27 February 2014 the Applicant relied upon an Affidavit of Melissa Amy Singleton sworn on the same day. From that Affidavit it is apparent that the Applicant advised her Solicitors on or about 4 February 2014 that she was seeking treatment from her Psychiatrist with respect to how she was going to cope psychologically with giving evidence before the Commission. The Applicant then provided her Solicitors with instructions to liaise with Dr Huntsman directly about her condition and further instructed them not to make any contact with her about the matter.
On or about 5 February 2014 the Applicant's Solicitors made telephone contact with Dr Huntsman to arrange a teleconference to discuss the matter. Contact with Dr Huntsman's rooms occurred again on 7 February 2014 and a telephone conference was organised for the afternoon of 7 February 2014.
Dr Huntsman provided the Applicant's Solicitors with an oral opinion on that afternoon to the following effect:
·that the Applicant was having difficulties coping at the time;
·that it was becoming clear that it would be too much for the Applicant to handle a hearing and give evidence;
·that the Applicant had testamentary capacity and knew what she was saying and what it meant but that emotionally she was not coping; and
·that it was very difficult for the Applicant to make directive decisions.
Dr Huntsman was advised during the course of this teleconference that the Applicant had requested that her Solicitors liaise with him in respect to her workers' compensation claim. Dr Huntsman advised that he would speak with the Applicant and then provide instructions to the Applicant's Solicitors. Following this teleconference the Applicant's Solicitors continued with their preparation for the hearing.
On 17 February 2014 a request was made to Dr Huntsman for a written opinion as to whether the Applicant was capable of giving evidence at the hearing. On 19 February 2014 the Applicant's Solicitors attempted to follow up on this request but were met with a message bank response from Dr Huntsman to the effect that his rooms were closed until 25 February 2014.
On 20 February 2014 the Applicant's Solicitors caused correspondence to be forwarded to the Regulator which advised that the Applicant's treating Psychiatrist did not consider that the Applicant was psychiatrically fit to give evidence and that written confirmation of this had been requested. Attempts were made to contact Dr Huntsman on 25 February 2014 and ultimately a written report was received on that day.
It is apparent that the Applicant's Solicitors have not been able to speak with the Applicant let alone take instructions from her in recent times. The hearing was advised that the Appellant's Solicitors were not even in a position to obtain instructions from the Applicant about any discontinuance of her Appeal. They have not been able to even inform the Applicant of a likely costs order in the event that the application for the vacation of hearing dates was granted.
The Regulator concedes that, given the medical report of Dr Huntsman, the hearing dates will need to be vacated but in so doing, the Regulator seeks its costs thrown away as a result of the exceedingly late notification of the need for the vacation of five days of hearing.
In all of the circumstances there is nothing that can be done other than to vacate the hearing dates scheduled for 3 - 7 March 2014. I vacate those hearing dates only on the basis that the Applicant bear the Regulator's costs thrown away as a result of the vacation of five days of hearing. The Regulator provided its claim in respect of its costs thrown away based on the Schedule of Costs provided in the Uniform Civil Procedures Rules 1999 Schedule 3, Scale E. The claim is as follows:
Item 5(a)Preparation for Trial $2,505.00
Item 6(d)Conference fees for Counsel ($181.00 x 5 hours) $ 905.00
Item 6(f)Counsel's fee to appear at hearing $1,120.00
Item 6(g) Counsel's refresher fee ($750.00 x 2 days) $1,500.00
Total $6,030.00
I accept that the first three of those costs are appropriate. In respect of Item 6(g), I am prepared to allow one day of the refresher fee given that the Appeal was listed for five days. Counsel was given very short notice of the likely vacation of five days of hearing and only one day's notice of the actual vacation of the hearing dates. In such circumstances it is appropriate that at least one day of the refresher fee is paid by the Applicant.
I thus order that the Applicant pay the Regulator the costs thrown away as a result of the vacation of the hearing dates of 3 - 7 March 2014 in the amount of $5,280.00 within twenty-one days of the release of this decision. The $5,280.00 in costs is comprised as follows:
Item 5(a)Preparation for Trial $2,505.00
Item 6(d)Conference fees for Counsel ($181.00 x 5 hours) $ 905.00
Item 6(f)Counsel's fee to appear at hearing $1,120.00
Item 6(g) Counsel's refresher fee ($750.00 x 1 days) $ 750.00
Total $5,280.00
In addition to the costs order outlined in paragraph [18], I also order that:
(i)this Appeal not be further listed for directions or hearing until such time as the costs of $5,280.00 have been paid by the Applicant to the Regulator; and
(ii)this Appeal not be further listed for directions or hearing until such time as the Applicant has received a written medical report from Dr Stephen Huntsman, Consultant Psychiatrist, to the effect that the Applicant is psychiatrically and/or psychologically fit to give evidence and be cross-examined at the hearing of this Appeal.
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