Simon Blackwood (Workers' Compensation Regulator) v Maskiell

[2014] QIRC 87

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Simon Blackwood (Workers' Compensation Regulator) v Maskiell [2014] QIRC 087

PARTIES:

Simon Blackwood (Workers' Compensation Regulator)
(Applicant)

v

Maskiell, Robert John
(Respondent)

CASE NO:

B/2014/19

PROCEEDING:

Application to dismiss Notice of Appeal WC/2014/49

DELIVERED ON:

21 May 2014

HEARING DATE: 

21 May 2014

MEMBER:

Vice President Linnane

ORDERS  :

1.      Application to dismiss granted.

2.      Appeal WC/2014/49 is dismissed.

3.      The decision of the Regulator dated 18 December 2013 is confirmed.

CATCHWORDS:

INDUSTRIAL LAW - Application to dismiss Notice of Appeal pursuant to s 331(b) of the Act and r 45 of the Rules - Respondent failed to comply with directions - Respondent failed to attend s 552A Conference - Respondent failed to attend hearing of application to dismiss Notice of Appeal - Application granted - Notice of Appeal dismissed.

CASES:

Industrial Relations Act 1999, s 331(b)
Industrial Relations (Tribunals) Rules 2011, r 45
Workers' Compensation and Rehabilitation Act 2003

APPEARANCES:

Mr G Clark for the Applicant
No appearance for the Respondent

Report on Decision (as edited)

In giving her decision from the Bench on 21 May 2014, Vice President Linnane stated:

"This is an application by Simon Blackwood (Workers' Compensation Regulator) (Regulator) seeking to have WC/2014/49 dismissed pursuant to s 331(b) of the Industrial Relations Act 1999 and r 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Rules).  WC/2014/49 is an Appeal by Robert Maskiell (Respondent) against a review decision of the Applicant dated 18 December 2013 which confirmed a decision of Woolworths Limited (self-insurer) to reject the Respondent's application for workers' compensation.

Brief History of WC/2014/49

A brief history of WC/2014/49 is as follows:

·        the Respondent lodged an application on 29 June 2013 for workers' compensation with the self-insurer in respect of a psychological injury said to have been sustained in the course of the Respondent's employment with Woolworths Ltd;

·        on 13 August 2013 that application for compensation was rejected by the self-insurer on the basis that the Respondent did not sustain an injury in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act);

·        on 12 November 2013 the Respondent, through his former Solicitors, lodged with the Regulator an application for review in respect of the decision by the self-insurer;

·        on 18 December 2013 the decision of the self-insurer was confirmed by the Regulator;

·        on 20 February 2014 the Respondent's former Solicitor filed a Notice of Appeal to the Queensland Industrial Relations Commission against the Regulator's decision;

·        on 6 March 2014 I issued a Further Directions Order containing directions for the further conduct of the Respondent's Appeal.  Direction 1 of that Further Directions Order required the Respondent to file in the Industrial Registry and served on the Regulator a list detailing each and every work event that the Respondent asserted led to him sustaining his psychological injury.  This was to be complied with by 4.00 pm on 28 March 2014;

·        the Respondent's former Solicitors filed a Notice of Withdrawal of Appointment of Lawyer or Agent in the Industrial Registry on 20 March 2014;

·        the Respondent failed to comply with direction 1 of the Further Directions Order dated 6 March 2014;

·        on 1 April 2014 Gavin Clark, an Appeals Officer with the Regulator, telephoned the Respondent leaving a voicemail message asking the Respondent to return his call to discuss his failure to comply with direction 1 of the Further Directions Order.  The Respondent did not return Mr Clark's telephone call;

·        on the same day Mr Clark e-mailed the Respondent concerning his non-compliance with the Further Directions Order and requesting that he contact Mr Clark.  Mr Clark further advised the Respondent that failure to comply with the direction may result in the Regulator applying to the Commission to have his Appeal struck out.  The Respondent did not reply to Mr Clark's e-mail;

·        on 3 April 2014 Mr Clark again telephoned the Respondent leaving a voicemail message for him to return the call.  Mr Clark also telephoned the Respondent's partner asking her also to return his call.  Neither the Respondent nor his partner returned these calls;

·        on 3 April 2014 the Commission sent an e-mail to the Respondent advising him that direction 1 had not been complied with and amending the direction so that compliance was required by 7 April 2014.  In that e-mail the Respondent was reminded that his Appeal was listed for a s 552A Conference on 11 April 2014 and requested a landline telephone number on which he could be contacted for the Conference.  The Respondent failed to respond to this e-mail;

·        the Respondent further failed to comply with direction 2 of the Further Directions Order which required him to provide the Regulator with a list of documents in his possession or under his control relevant to a matter in issue in the proceedings.  The Respondent was required to comply with this direction by 3 April 2014;

·        on 4 April 2014 Mr Clark again telephoned the Respondent and left a message asking him to return his call.  Once again the Respondent failed to return this call;

·        at 2.24pm on 7 April 2014 the Regulator received e-mail correspondence from the Respondent regarding his list of stressors.  That e-mail did not comply with direction 1 of the Further Directions Order as it lacked specificity;

·        at or about 3.00pm on 7 April 2014 Mr Clark received a telephone call from the Respondent.  The Respondent confirmed that he had received Mr Clark's correspondence and advised that he had obtained Mr Clark's telephone number from the abovementioned correspondence.  The Respondent ultimately hung up the telephone when speaking to Mr Clark on this occasion;

·        on 11 April 2014 the Regulator attended (with Counsel) the s 552A Conference at the Commission.  When the Respondent failed to attend this Conference, attempts were made by the Deputy President's Associate and the Deputy President to contact the Respondent on his and his partner's mobile telephone numbers.  Neither the Deputy President nor his Associate had any success; and

·        the Respondent also failed to comply with directions 7 and 8 of the Further Directions Order issued on 6 March 2014.

Current Application

On 9 May 2014 the Regulator filed this application.  Directions for the further conduct of this application were issued on 13 May 2014 with the Respondent being required to supply to the Regulator and file in the Industrial Registry any evidence he intended to rely upon at the hearing of this application.  This evidence was required by 4.00pm on 19 May 2014. No material from the Respondent was received in the Industrial Registry.  The hearing of the application to dismiss was advised to the Respondent in that Directions Order i.e. at 11.00 am on 21 May 2014.  The Respondent has failed to attend the hearing of this application.

Legislation

Section 331 of the Industrial Relations Act 1999 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."

and Rule 45 of the Rules 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)."

Conclusion

It is clearly evident from the abovementioned chronology of WC/2014/49 that the Respondent has no intention of prosecuting his Notice of Appeal. In those circumstances it is appropriate that the Appeal in WC/2014/49 be dismissed as further proceedings by the Commission are not necessary nor desirable in the public interest: see s. 331(b)(ii) of the Industrial Relations Act 1999.

I also find that the Respondent has failed, without any excuse, to comply with directions issued by the Commission.  The Respondent has also failed to attend the s 552A Conference and the hearing of this application.  No excuse for non-attendance has been received.  I further dismiss WC/2014/49 pursuant to r 45 of the Rules.

The Regulator does not seek any order as to costs in this application.  Had the Regulator sought such an order I would have been minded to grant the request in the circumstances outlined above.  If appellants in workers' compensation appeals before this Commission form the view that they do not need to comply with directions issued by the Commission they leave themselves open to costs orders when they fail to comply with directions.  Persons who seek to appeal decisions of the Regulator need to be mindful that directions are issued in these matters to ensure that appeals are progressed appropriately.  If appellants are unable to meet a deadline for compliance with a direction, they should, as soon as practicable, but before the deadline expires, seek an extension of the time within which they should comply.  It is too late for an Appellant to seek such an extension once the timeframe has expired.  If an appellant decides that they no longer wish to progress their appeal then the appropriate course is to discontinue their Notice of Appeal.

In the circumstances I make the following orders:

(a)     the application to dismiss WC/2014/49 is granted;

(b)     appeal WC/2014/49 is dismissed; and

(c)     the decision of the Regulator dated 18 December 2013 is confirmed.

Order accordingly."