Ryan v Workers' Compensation Regulator - [2018] QIRC 93

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Ryan v Workers' Compensation Regulator [2018] QIRC 093
PARTIES:	Ryan, John Patrick (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/183
PROCEEDING:	Appeal against decision
DELIVERED ON: HEARING DATES:	13 July 2018 13 April 2018
HEARD AT:	Brisbane
MEMBER:	Black IC
ORDER:	*Appeal dismissed pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011.*
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL – PROCEDURE – SHOW CAUSE – where the appellant has not complied with a directions order – where there is no disclosed intention on the part of the appellant to expeditiously progress his appeal - where no sufficient cause has been shown to warrant not dismissing the proceedings.
LEGISLATION: CASES:	Industrial Relations Act 2016 s 451, s 452, s 541 Industrial Relations (Tribunals) Rules 2011 r 45 Workers' Compensation and Rehabilitation Act 2003 s 32 Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd (1990) FCR 388
APPEARANCES:	Mr A S Lord, Patinos Personal Lawyers, for the Appellant. Mr M Cutting, for the Workers Compensation Regulator.

Decision

History of Appeal

By notice of appeal dated 26 September 2017, Mr John Patrick Ryan (the appellant) appealed a decision of the Workers' Compensation Regulator dated 29 August 2017 rejecting his application for compensation in relation to an injury to his upper and lower limbs and to nerves and spinal cord.

Directions facilitating the expeditious conduct of the appeal were issued by the Industrial Registrar on 26 September 2017.

Consistent with those directions, statements of facts and contentions were filed by both the appellant and the respondent. The appellant's statement of facts and contentions were filed by his solicitors (Patinos Personal Lawyers) on 5 December 2017. However, no subsequent directions have been complied with.

In this regard, the appellant was required to provide to the respondent no later than 13 February 2018 a list of names of all witnesses; to provide to the respondent no later than 13 February 2018 an outline of witness evidence; and to inform the Industrial Registry no later than 13 March 2018 if a conference was required, or whether the appeal was ready to proceed to trial. These directions have ultimately not been complied with.

On 12 February 2018, the appellant's solicitors wrote to the Industrial Registrar and informed the Registrar that they did not have instructions from their client to enable the outstanding directions to be complied with. A note on the correspondence made by Registry staff indicated that the solicitor handling the matter had been trying to contact the appellant for several weeks and asked for time for compliance with directions to be extended until 26 February 2018.

On 2 March 2018, the appellant's solicitors again wrote to the Industrial Registrar and advised that they remained without instructions and requested a further extension of time until 16 March 2018. The respondent did not oppose the request.

When no further activity had been recorded on the file by 26 March 2018, the Registry emailed the appellant's solicitors and asked that they…

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.

Continue reading Ryan v Workers' Compensation Regulator

Details

AGLC: Ryan v Workers' Compensation Regulator [2018] QIRC 93
Case: [2018] QIRC 93
Decision Date: 13 July 2018 13 April 2018

CaseChat Overview and Summary

In the case of Ryan v Workers' Compensation Regulator, the appellant sought to appeal a decision related to workers' compensation. The dispute arose from the appellant's failure to comply with a directions order and the lack of an apparent intention to expedite the appeal process. The court was tasked with determining whether the proceedings should be dismissed due to the appellant's non-compliance and the absence of a compelling reason to proceed.

The primary legal issue before the court was whether the appellant's non-compliance with a directions order and the lack of a genuine intention to progress the appeal within a reasonable period warranted the dismissal of the proceedings. The court examined the discretionary power under Order 10 rule 7 and considered the factors relevant to the exercise of this discretion. These factors included the history of non-compliance, the attitude of the appellant towards the default, the prejudice to the respondent, and the overall impact of the delay on the quality of the trial.

The court reasoned that while non-compliance with procedural directions could lead to the dismissal of a proceeding, such a decision should not be made lightly. The discretion under Order 10 rule 7 is broad but not unlimited, and it should be exercised sensibly, taking into account the unavoidable and unpredictable nature of delays and the serious consequences for the appellant of dismissing a claim. The court identified two main scenarios where the power might appropriately be exercised: cases where the appellant's history of non-compliance indicates an inability or unwillingness to cooperate with the court and the other party, and cases where the non-compliance is continuing and causing unnecessary delay, expense, or other prejudice to the respondent. The court concluded that the appellant's history of non-compliance and lack of intention to expedite the appeal warranted the dismissal of the proceeding.

ORDERS:
The appeal was dismissed pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011.

Orders

Orders of the court

Appeal dismissed pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After considering Order 10 rule 7, the judgment proceeded:33. It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of "inordinate and inexcusable delay" on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties. …35. The observations which we have just made about the scope of Order 10 rule 7 are not intended to convey the impression that any failure to comply with a procedural direction will appropriately result in the dismissal of the proceeding. On the contrary, the rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim; compare the approach taken to non-compliance with time limitations in respect of appeals in Van Reesema v Giameos (1979) 27 ALR 525. We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial. 36. The discretion conferred by Order 10 rule 7 is unconfined, except for the condition of non-compliance with a direction. 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. 37. 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. But the continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.Decision

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.