Spry v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 49

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Spry v Simon Blackwood (Workers' Compensation
Regulator) [2014] QIRC 049
PARTIES:	Spry, Melanie
(Appellant)
v
Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
CASE NO:	WC/2013/405
PROCEEDING:	Application to dismiss the Appeal
DELIVERED ON:	6 March 2014
HEARING DATE:	30 January 2014
Appellant given until 21 February 2014 to provide written submissions
MEMBER:	Vice President Linnane
ORDERS :	1. The application to dismiss WC/2013/405

pursuant to s. 331(b) of the Industrial
Relations Act 1999 is granted.

2.   The application to dismiss WC/2013/405

pursuant to r. 45 of the Industrial Relations
(Tribunals) Rules 2011 is granted.

CATCHWORDS:	APPLICATION TO DISMISS - s. 331(b) of the Industrial Relations Act 1999 and r. 45 of the Industrial Relations (Tribunals) Rules 2011 - Appellant failed to comply with directions - Appellant failed to attend Mention - Appellant failed to respond to application to dismiss - Application granted.
CASES:	Industrial Relations Act 1999, s. 331(b) - Decisions Generally. Industrial Relations (Tribunals) Rules 2011, .r 45 - Failure to attend or to comply with directions order.
Pritchard  v Simon Blackwood (Workers'
Compensation Regulator) [2014] ICQ 002.
Simon Blackwood (Workers' Compensation
Regulator) v Dominic Burke (B/2013/46) -
Decision < Q-COMP v Samantha Wilson (B/2013/53) - Decision < Francine Pritchard v Q-COMP (WC/2011/44) - Decision <
APPEARANCES:	No appearance for the Appellant. Ms J. Webb for Simon Blackwood (Workers'
Compensation Regulator), the Respondent.

No such Statements of Evidence were filed in the Industrial Registry or supplied to the Regulator.

[8]     Given that the hearing date of 26 February 2014 was rapidly approaching, an urgent Mention of the Appeal was listed for 30 January 2014. An e-mail was forwarded to the Appellant at 7.20 pm on 28 January 2014 which notified the Appellant of the Mention listed for 30 January 2014. The Notice of Listing of the Mention was also forwarded to the Appellant by the Industrial Registry via e-mail on 29 January 2014. The Industrial Registry received a Successful Mail Delivery Report in respect of that e-mail. The Appellant did not attend that Mention and made no contract with the Industrial Registry or the Commission.

[9] When the Appellant failed to attend the Mention, the Regulator made an oral application to have the Appellant's Notice of Appeal dismissed either pursuant to s. 331 of the Industrial Relations Act 1999 or pursuant to r. 45 of the Industrial Relations (Tribunals) Rules 2011.

[10] 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 expense, including witness expenses, it considers appropriate."

and r. 45 of the Industrial Relations (Tribunals) Rules 2011 provides as follows:

"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)."

[11]  As the Regulator had not foreshadowed its application to dismiss the Appeal, the Appellant was unaware that any such application was to be made on the date of the Mention. I agreed to the Regulator making its submission to dismiss the Appeal provided that the Appellant was given time within which to respond to the application. With that in mind I indicated that, as and when the transcript of the Mention became available, I would arrange for the transcript of the Mention together with any authorities relied upon by the Regulator to be forwarded to the Appellant and to then allow the Appellant time within which to provide a written response to the Regulator's application.

[12]  In support of its application the Regulator relied upon the following authorities i.e.

the decision of O'Connor DP in the Industrial Court of Queensland in Pritchard v

1

Simon Blackwood (Workers' Compensation Regulator) and decisions of the Commission in Simon Blackwood (Workers' Compensation Regulator) v Dominic

2 3 4

Burke , Q-COMP v Samatha Wilson and Francine Pritchard v Q-COMP .

[13]   The transcript of that Mention became available on 4 February 2014. On that day an e-mail was forwarded to the Appellant in the following terms:

"On 30 January 2014 a Mention was held which you have failed to attend. During the Mention submissions were made by the Workers' Compensation Regulator to Strike Out your application. Please find attached the Transcript of this proceeding as well as the submissions made.

At that Mention the Vice President vacated all Directions in this matter including the hearing date 26 February 2014. Please find attached Amended Further Directions Order issued by the Vice President on 30 January 2014.

Please note that at the Mention the Vice President has given you until Friday 21 February 2014 (14 days) to respond to the Application to Strike Out your Appeal. It is important that you provide a response to the Strike Out Application by the due date. No extension will be granted."

[14]   The transcript and the authorities relied upon by the Regulator were forwarded to the Appellant in that e-mail. As at the date of this decision, no response to the Regulator's application has been received from the Appellant and there has been no communication whatsoever from the Appellant.

[15] It is clear that the Appellant, as at a time following the Conference before Deputy President O'Connor, has taken no steps whatsoever to prosecute her Notice of Appeal. The fact that she provided no response whatsoever to the Regulator's application pursuant to s. 331(b) of the Industrial Relations Act 1999 and r. 45 of the Industrial Relations (Tribunals) Rules 2011 confirms that view.

[16] In all of the circumstances, I find that it is not necessary or desirable in the public interest for there to be further proceedings by the Commission in this Appeal. As a result I dismiss WC/2013/405 pursuant to s. 331(b) of the Industrial Relations Act 1999. Additionally, I find that the Appellant has not complied with directions issued by the Commission for the conduct of WC/2013/405 and she has failed to attend a Mention of the matter for which the Appellant had notice. No explanation for the Appellant's non-attendance at the Mention was received. In those circumstances, I also dismiss WC/2015/405 pursuant to r. 45 of the Industrial Relations (Tribunals) Rules 2011.

[17] Order accordingly.

[1]     The substantive matter is an appeal by Melanie Spry (Appellant) against a decision of Simon Blackwood (Workers' Compensation Regulator) (Regulator) given on 6 November 2013 which calculated the Appellant's weekly rate of pay at $1,499.65 gross in accordance with ss. 106 and 150 of the Workers' Compensation and Rehabilitation Act 2003 (Act). The Appellant's Notice of Appeal was filed on 4 December 2013

[2]     On 9 December 2013 a Directions Order was forwarded to the parties listing the matter for Callover on 12 December 2013. The Appellant did not attend the Callover. On 12 December 2013 a Further Directions Order was issued to the parties which outlined the directions for the further conduct of this Appeal. That Further Directions Order listed the hearing of this Appeal on 26 February 2014.

[3]     The Appellant did not appropriately comply with the first direction of the Further Directions Order dated 12 December 2013 i.e. to provide a list of the documents in her possession or under her control relevant to a matter in issue in the proceedings by 17 December 2013. The Appellant also failed to comply with the third direction of the Further Directions Order which required the Appellant to supply the Regulator with copies of the documents contained in her list which the Regulator requested. These copies were required to be provided to the Regulator by 24 December 2013.

[4]     When the Appellant had not complied with either the first or the third directions of the Further Directions Order, the Regulator corresponded with the Industrial Registrar outlining the Appellant's non-compliance.

[5]     The Appeal was listed for Conference before a Member of the Queensland Industrial Relations Commission (Commission) on 14 January 2014. The Appellant attended that Conference. During the course of that Conference, Deputy President O'Connor gave directions for the Appellant to produce certain documents. The Appellant did not comply with the directions issued by Deputy President O'Connor.

[6]     The Regulator e-mailed the Appellant on 17 January 2014 again requesting that the Appellant supply copies of the documents which the Appellant indicated she had in her possession. By 28 January 2014 the Regulator had received no response from the Appellant. The Regulator then forwarded correspondence to the Industrial Registry requesting a mention of the Appeal in order to resolve the Appellant's continued non-compliance. That e-mail from the Regulator was also copied to the Appellant.

[7]     The Appellant was also required to file and supply to the Regulator by 28 January 2014 Statements of Evidence from all witnesses to be called by her at the hearing.

1 Pritchard v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 002.
2

Simon Blackwood (Workers' Compensation Regulator) v Dominic Burke (B/2013/46) - Decision

<
3
Q-COMP v Samantha Wilson (B/2013/53) - Decision <
4
Francine Pritchard v Q-COMP (WC/2011/44) - Decision <