Ryan v Workers' Compensation Regulator
[2018] QIRC 93
•13 July 2018 13 April 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ryan v Workers' Compensation Regulator [2018] QIRC 093 |
PARTIES: | Ryan, John Patrick v Workers' Compensation Regulator |
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 Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd (1990) FCR 388 |
| APPEARANCES: | Mr A S Lord, Patinos Personal Lawyers, for the Appellant. |
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 advise of their intentions to either progress the matter, or to discontinue the matter. The appellant's solicitors responded on the same day again informing the registry that they had been unable to secure instructions from their client.
It was as a consequence of this history that the Commission as currently constituted listed the appeal for mention on 13 April 2018.
At this hearing, the appellant's solicitors again confirmed that they had been unable to solicit instructions from the appellant. In these circumstances the parties were informed that unless advice is provided by the appellant on or before 31 May 2018 to the effect that he wishes to proceed with his appeal, the Commission would act of its own motion to dismiss the proceedings.
On 4 June 2018, the appellant's solicitors advised the Registrar that their predicament had not been eased, and that they remained unable to obtain instructions from their client.
On 6 June 2018, I caused an email to be sent to the appellant's solicitors and to the respondent to the effect that the appeal would be struck out in 14 days time unless either side made submissions seeking a contrary outcome. No such submissions were received.
Reasoning
The Commission's power to act on its own initiative and to strike out the appeal resides in either Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (the IR Rules) or in s 452(1)(a) and s 451 of the Industrial Relations Act 2016 (the IR act).
The Commission's power to dismiss the appeal may also be available under s 541(b) of the IR Act which allows the Commission to dismiss an industrial cause if the Commission considers that further proceedings are not necessary or desirable in the public interest.
The IR Rules apply to proceedings before the Commission, which includes a proceeding started by way of a notice of appeal under the Workers' Compensation and Rehabilitation Act 2003. Rule 45 provides:
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).
Rule 45 relevantly applies if a party to a proceeding fails to comply with a directions order. In the event of non-compliance, the Commission may dismiss the proceedings.
Conclusion
The appellant has failed to prosecute his proceedings in any meaningful way since 5 December 2017. He has failed to comply with directions notwithstanding that extensions of time have been sought and granted on two occasions. The appellant solicitors are aware that one of the consequences of failing to comply with a directions order is that the Commission may dismiss the proceedings.
Principles relevant to the exercise of such a discretion were canvassed by Wilcox and Gummow JJ in Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd[1] where the provisions of Order 10 rule 7 of the Federal Court Rules were under consideration. Relevantly, and at that time, Order 10 rule 7 provided that
7 (1) Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice -
(a) if the party in default is an applicant - for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding.[1] Lenijamar Pty Ltd and Ors. V AGC (Advances) Ltd (1990) FCR 388
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
In my considered view, I would be acting consistent with the principles enunciated above if I were to act to dismiss the proceedings brought by the appellant in his appeal against the decision of the workers compensation regulator.
Having regard to the appellant's failure to comply with directions, his failure to demonstrate a genuine intention to progress his appeal to hearing on a timely basis, and his failure to satisfy me that he is committed to the expeditious resolution of his appeal, I have decided to dismiss the proceedings pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011.
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