Pritchard v Simon Blackwood (Workers' Compensation Regulator)

[2014] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND

CITATION:Pritchard v Simon Blackwood (Workers’ Compensation Regulator) [2014] ICQ 002

PARTIES:  Pritchard, Francine

(appellant)

v

Simon Blackwood (Workers’ Compensation Regulator)

(respondent)

CASE NO:C/2013/8

PROCEEDING:  Appeal against a decision of the Industrial Commission

DELIVERED ON:  16 January 2014

HEARING DATE:  12 November 2013

MEMBER:Deputy President O’Connor

ORDERS:1. The appeal is dismissed.

2.The appellant is to pay the respondent’s costs.

CATCHWORDS: WORKERS’ COMPENSATION – DECISIONS GENERALLY – POWER TO DISMISS WHERE FURTHER PROCEEDINGS CONSIDERED NOT TO BE NECESSARY OR DESIRABLE IN THE PUBLIC INTEREST – appeal against decision of Industrial Commission – where the appellant failed to attend the hearing of her workers’ compensation appeal – where the respondent applied to have the appeal dismissed pursuant to either s 331 of the Industrial Relations Act 1999 or r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 – where the Industrial Commission dismissed the appellant’s workers’ compensation appeal pursuant to

s 331(b)(ii) of the Industrial Relations Act 1999 – whether the Industrial Commission had erred in exercising the discretion to dismiss

INDUSTRIAL LAW – GENERAL POWER TO AWARD COSTS – whether the appellant’s case was objectively recognisable as one which could not succeed at the time she appealed

CASES:Industrial Relations Act 1999, s 331, s 335

Industrial Relations (Tribunals) Rules 2011, r 45

Burke v Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38) - Decision < v The King (1936) 55 CLR 499

MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370

O’Sullivan v Farrer (1989) 168 CLR 210

Pritchard v Department of Environment and Heritage Protection (TD/2013/17) - Decision < v Q-COMP (WC/2011/44) - Decision <

Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209

Quinlan v Rothwell [2002] 1 Qd R 647

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

APPEARANCES:  No appearance for the appellant.

Mr J. C. Dwyer, Counsel, directly instructed by, and appearing for, the respondent.

[1]This is an appeal from a decision of the Vice President given on 11 February 2013.[1] In that decision the Vice President dismissed an appeal by Ms Francine Pritchard (“the appellant”) against a decision of Q-COMP (“the respondent”) made on 5 January 2011.

[1] Pritchard v Q-COMP (WC/2011/44) - Decision <

[2]The appellant filed a notice of appeal in the Industrial Registry on 21 February 2011. At the time of hearing in the Industrial Commission (“the Commission”), the appellant was employed as a “Senior Project Officer” or “Statistician” with the Department of Environment and Heritage Protection. The hearing of the appeal was scheduled for 21 to 24 January 2013.

[3]There was no appearance for the appellant on the first day of the scheduled hearing.

[4]As the appellant failed to attend the hearing, the respondent made an application to have the appeal before the Commission dismissed pursuant to either:

(a) s 331 of the Industrial Relations Act 1999 (“the Act”); or
(b)     r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (“the Rules”).

[5]The history of the appellant’s conduct of her appeal was outlined in some detail by the Vice President in her Honour’s decision[2] and it is not necessary to repeat that history here.

[2] Ibid [2].

[6]The respondent relied on the following conduct of the appellant to support its application to have the appeal dismissed:

·        her failure to disclose relevant documents;

·        her failure to disclose Dr Estensen’s medical report in a timely manner;

·her failure to attend the mention on 10 January 2013 to argue her application for an adjournment;

·        her failure to attend for the hearing of her appeal; and

·her failure to provide the respondent with any medical certification of her stated medical condition as requested on 16 January 2013.

[7]At the hearing of the application on 21 January 2013, the Vice President indicated that she would have her associate send to the appellant the transcript of the proceedings that day, the outline of the respondent’s submissions, and the affidavit of Ms Webb once the transcript became available, and would give the appellant 14 days to provide her response to the respondent’s application. The transcript of the proceedings became available to the Commission on 24 January 2013. On that date the Vice President’s associate sent to the appellant the transcript of proceedings, the affidavit of Ms Webb, the documents referred to in the affidavit of Ms Webb, and the outline of the respondent’s submissions. The appellant was further advised that she had until close of business on 8 February 2013 to provide any evidence and/or a written response as to why her appeal should not be struck out. The appellant’s attention was also drawn to the fact that the respondent had sought costs.

[8]The abovementioned documentation was forwarded to the appellant via post and electronically, to both her work and home email addresses. She was given until 8 February to provide any response. No application was received from the appellant for further time within which to respond.

[9]The Commission’s file reveals that no evidence or written response was received by the Commission or the Industrial Registry from the appellant in response to the correspondence dated 24 January 2013.

[10]In dismissing the appeal, the Vice President concluded:

“This is a case where the discretion vested in the Commission by s 331 of the Act warrants the dismissal of the Appellant’s appeal as further proceedings by the Commission are not necessary or desirable in the public interest. The Appellant was given an opportunity to provide medical evidence to support her claim for the deferral of the hearing dates. She apparently chose not to obtain such medical evidence and/or the medical evidence was not forthcoming.”[3]

[3] Ibid [17].

[11]The decision by the Vice President to dismiss the appeal was made pursuant to the power provided by s 331 of the Act. That section 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.”

[12]On 26 February 2013 a notice of appeal was filed in the Industrial Registry.

[13]The notice set out the grounds of appeal as follows:

“I believe an error/errors were made

(a)I had advised of a serious illness and sought some assistance with what to do. It will be many months before specialist will be able to confirm what had occurred, but it is related to a reaction to multiple recent surgeries and the treatment of injuries that I sustained as a workcover injury and subsequent aggravations.

(b) I had been ambushed quite late with a number of documents December 20 2012 and had sought leave to have this excluded on the basis of relevance

(c) I have raised a victimisation and retribution case with the ADCQ as a result of an earlier settlement in 2012 for discrimination. The behaviour immediately changed when notice was given that I would proceed with the hearing before the QIRC. I am not aware of which occurs first, but it is my assertion that the matter before the ADCQ needs to be heard and dealt with first. This is quite serious as part of the victimisation includes actions which may have permanently damaged my hearing in my left which was only restored in May 2012 and this has severely hampered my ability to represent myself. If the worst case scenario occurs I am likely to become profoundly deaf again with no ability to be assisted by hearing aids.”

[14]At the hearing of this appeal, the appellant failed to attend. No reasons were provided to the Court for her non-attendance.

[15]The facts relied on by the respondent in seeking to have the Court exercise its discretion to dismiss the appeal are set out in the affidavit of Ms Joanne Webb sworn on 12 November 2013.

[16]In her affidavit, Ms Webb deposes that on 7 November 2013 she attempted to contact the appellant on her mobile phone in order to speak with her about non-compliance with the further directions order issued on 9 October 2013. Ms Webb states that she was unsuccessful in speaking directly with the appellant and left a message for the appellant to return her call.

[17]Ms Webb further states that on 8 November 2013 she wrote to the appellant by email requesting that she provide medical certification or evidence to support her assertion that she had been ill, had “been quite incapacitated for most of the last 12 months”, and that her treating practitioners now believe she has had chronic fatigue for 18 months.

[18]The further directions order issued by the Vice President on 9 October 2013 required the appellant to file in the Industrial Registry, and serve on the respondent, a written submission by 25 October 2013. In particular, the submission was to specify which, if any, grounds of appeal were no longer going to be pursued. Any written submission in reply was to be filed and served by 11 November 2013.

[19]In terms of assessing the veracity of the assertions made by the appellant in her emails of 7 and 12 November 2013, Counsel for the respondent directed the court to the email of 11 October 2013. In that email, the appellant asserts as follows:

“I have been very ill recently, had surgery two weeks ago and been quite incapacitated for most of the last 12 months. They now believe I have chronic fatigue for 18 months.”

[20]The appellant goes on to state:

“I can do nothing without a lot of warning as I don’t have the capacity to do a lot at a time. … I am in one of those episodes at the moment and have barely left the house in seven weeks. I keep collapsing when I do.”

[21]In the correspondence forwarded to the appellant by the respondent on 7 November 2013 an attempt was made to obtain from the appellant some independent verification of her medical condition.

[22]On 9 October 2013, two days before her email of 11 October in which the appellant asserts significant incapacity, the appellant provided to Industrial Commissioner Thompson a 45 page submission in respect of the evidence in the appellant’s application for reinstatement in the employ of the Department of Environment and Heritage Protection, which was heard on 21 to 23 August 2013.[4]

[4] Pritchard v Department of Environment and Heritage Protection (TD/2013/17) - Decision <

[23]Counsel for the respondent submitted that the email of 11 October 2013 is significant for two reasons:

“(1)The appellant has yet to provide any independent verification of her medical condition; and

(2)Her assertions are at odds with her conduct in the matter of TD/2013/17 and the appellant’s completion of detailed written submissions on 9 October 2013 in that matter.”

[24]The appellant has demonstrated a consistent pattern of behaviour and conduct which disregards the directions of both the Court and the Commission. In doing so, the appellant has brought upon the Commission and the Court delay and expense in terms of the conduct of the matter by the respondent and, no doubt, an impost on the public purse because the Commission and the Court have invested significant time and effort to progress the matter and are put to expense in dealing with the delays which have been brought upon both parties by the appellant.

[25]Having considered the appellant’s conduct and the material before me, and after hearing the submissions of the respondent, I have no confidence that the appellant could proceed with her appeal in the ordinary course.

[26]The matters which have particularly played on my mind have been the failure by the appellant to comply with the directions of the Court and the Commission to provide written submissions, her failure to respond in any meaningful way to the respondent’s request for medical certification to substantiate her non-compliance with both the Act and the Rules, and her failure to attend the scheduled hearing of this appeal.

[27]Section 331(b)(ii) gives both the Court and the Commission the discretion to dismiss an appeal if further proceedings are not necessary or desirable in the public interest.

[28]In O’Sullivan v Farrer,[5] Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression “in the public interest”. Their Honours wrote:

“Indeed, the expression, ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’.”[6]

[5] (1989) 168 CLR 210.

[6] Ibid, 216 (citations omitted), quoting Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J).

[29]The Vice President also considered her power under r 45. That rule provides:

“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).”

[30]The discretion conferred under s 331 and r 45 must be exercised judicially.

[31]As Martin P observed in Burke v Simon Blackwood (Workers’ Compensation Regulator),[7] “The burden upon a person seeking to upset the exercise of such a discretion is described in the well-known decision of the High Court in House v The King:

‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’ (emphasis added)”[8]

[7] Burke v Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38) - Decision <

[8] Ibid [11] (citations omitted), quoting House v The King (1936) 55 CLR 499, 504–5.

[32]The respondent relied on the decision of Hall P in Quaedvlieg v Boral Resources (Qld) Pty Ltd[9] where his Honour the President, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell[10] as follows:

“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.”[11]

[9] (2005) 180 QGIG 1209.

[10] [2002] 1 Qd R 647.

[11] Ibid, 658, quoted in Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209, 1210.

[33]The appellant has not demonstrated that the Vice President erred in her exercise of discretion in dismissing the appeal.

[34]I am of the opinion that it would not be in the public interest for this appeal to continue and, accordingly, in exercise of my discretion pursuant to s 331 of the Act, I dismiss the proceedings.

Costs

[35]It has been urged by Counsel for the respondent that the Court should, in the current circumstances, exercise its discretion to order costs against the appellant.

[36]The Court’s power to grant costs is found in s 335 of the Act. That section provides:

“335  General power to award costs

(1)The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied–

(a) the party made the application vexatiously or without reasonable cause; or

(b)for an application for reinstatement–the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the proceedings.

(2)In making an order, the court or commission may order a party to pay another party an amount reasonably payable to a person, who is not a lawyer, for representing the other party.”

[37]

In MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland[12] Hall P, in considering

s 335, wrote:

“It seems to me to be more likely that s 335(1)(a) is aimed at the case which was objectively recognisable as one which could not succeed at the time when the application was made.”[13]

[12] (2000) 164 QGIG 370.

[13] Ibid, 371.

[38]The grounds of appeal relied upon by the appellant are set out in paragraph [13] above. In ground (a), the appellant raises a serious illness that was impeding her ability to conduct her appeal and for which the appellant has consistently failed to provide any independent medical evidence. In relation to ground (b), the appellant claims that she was “ambushed quite late with a number of documents … and had sought leave to have this excluded on the basis of relevance”. The documents complained of were produced by the respondent as a consequence of an attendance notice to produce. The documents were relevant to the proceedings as they were directed towards stressors associated with management action allegedly undertaken by her employer. The final ground of appeal raises matters which are both irrelevant and unnecessary for the prosecution of her appeal.

[39]Whilst the appellant is a self-represented litigant, she is by no means unsophisticated. She holds a tertiary qualification, she has already been engaged in some significant litigation before the Commission and, indeed, has submitted detailed and comprehensive submissions in another matter before Industrial Commissioner Thompson.

[40]Having regard to the conduct of the appellant and the past indications of her unsustainable submissions – in particular, the medical conditions that are unsupported by medical evidence – on any reasonable reading of the matters before the Court, it could not be concluded that the appeal has been brought on reasonable grounds.

[41]I am of the view that, on any objective assessment, the appellant’s appeal was, at the time it was filed in the Industrial Registry, misconceived and doomed to failure.

[42]In the circumstances, I am of the view that this is an appropriate matter in which to exercise my discretion to award costs under s 335 of the Act.

Orders

[43]The appeal is dismissed. The appellant is to pay the respondent’s costs in both the Commission and this Court.