Stone v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Stone v Simon Blackwood (Workers' Compensation
Regulator) [2014] QIRC 164
PARTIES:	Stone, John Gilbert
(Applicant)
v
Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
CASE NO:	WC/2014/123
PROCEEDING:	Application to withdraw deemed admissions
DELIVERED ON:	20 October 2014
HEARING DATE:	On the papers
MEMBER:	Industrial Commissioner Fisher
ORDER:	Application to withdraw deemed admissions
granted.
CATCHWORDS:	WORKERS' COMPENSATION - PRACTICE UNDER INDUSTRIAL TRIBUNALS RULES - Application to withdraw deemed admissions - Explanation provided - Response provided shortly after 14 days had elapsed - Response remains the same - Deemed admissions will severely hamper case - Regulator not prejudiced - Commission exercised discretion to grant application.
CASES:	Industrial Relations (Tribunals) Rules 1999, r 49
Equuscorp Pty Ltd v Orazio [1999] QSC 354
Rigato Farms Pty Ltd v Kenneth Frank Ridolfi
[2000] QCA 292
Decision

[1]     John Stone (the Applicant) has applied to the Queensland Industrial Relations Commission (the Commission) to be granted leave to withdraw his deemed admissions made in relation to a Notice to Admit Facts (the Notice) served by Simon Blackwood (Workers' Compensation Regulator) (the Regulator) on 21 March 2014. The Notice relates to an appeal filed by Mr Stone against a decision of the Regulator (Case No. WC/2013/317).

[2]      Ms Tiffany Marsh, Solicitor of Shine Lawyers, the Solicitors acting for Mr Stone, affirmed an Affidavit stating that she was "sure" she had provided a Response to the Notice prior to 4.00 pm on 4 April 2014, however, the email from Ms Marsh to the Regulator attaching the Response shows that it was sent at 4.15 pm.

[3]      At the time the Regulator stated that as it had not received the Response until approximately 4.15 pm it was of the opinion that the facts were deemed to be admitted. The attitude of the Regulator is now that it neither supports nor opposes the application.

[4]      Rule 49 of the Industrial Relations (Tribunals) Rules 2011 (the Rules) makes provision for a party to admit facts or documents:

"(1)	A party to a proceeding (the first party) may, by notice in the approved form served on another party, ask the other party to admit, for the proceeding only, the facts or documents stated in the notice.
(2)	If the other party does not, within 14 days after receiving a notice under subrule (1), serve a notice on the first party disputing the facts or the authenticity of the documents, the other party is taken to admit, for the proceeding only, the stated facts or the authenticity of the stated documents.

(3) The other party may, with the leave of the court, commission or registrar, withdraw an admission taken to have been made under subrule (2)."

[5]      One of the purposes of admissions is to ensure only matters genuinely in dispute are

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required to be determined by the Commission. This approach is especially useful in workers' compensation appeals, in which there are no pleadings and the hearings are de novo. In determining whether to grant leave to withdraw an admission deemed to have been made, the Commission relies on principles which have been developed in the courts.

[6]      In Rigato Farms Pty Ltd v Kenneth Frank Ridolfi,2 de Jersey CJ said:

"[20] There is no principle that admissions made, or deemed to have been made, may be always withdrawn 'for the asking', subject to payment of costs. The discretion is broad and unfettered, as exemplified by Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 and Equuscorp Pty Ltd v Orazio [1999] QSC 354."

[7]      In the same matter Williams J said:

"[31] Counsel for the appellant referred to the well known passage in the judgment of Bowen L J in Cropper v Smith (1884) 26 Ch D 700 at 710 where he said that the court ought to correct errors or mistakes in procedure made by the parties so that the matter was determined in accordance with the rights of the parties. That statement, though made over one hundred years ago, is still relevant, and it encapsulates a principle which a judge must always take into consideration in determining whether or not it is appropriate, for example, to allow a party to withdraw an admission. Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial. But, for example, where the detriment or prejudice is self induced, the party may not be entitled to relief. So much is clear from the unreported decision of the Victorian Full Court in Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd, referred to at length and applied by Rogers CJ Comm D in Coopers Brewery Ltd v Panfida Foods Ltd (1972) 26 NSWLR 738 at 744. . .

[32]   Certainly an admission flowing from the operation of r 189 should not

be withdrawn merely for the asking. In my view a clear explanation on

oath should be given as to how and why the admission came to be made

and then detailed particulars given of the issue or issues which the party

would raise at trial if the admission was withdrawn. Such a requirement

is generally in accordance with the reasons of Roger CJ in Coopers and

of Mackenzie J in Equuscorp Pty Ltd v Orazio (unreported, S9208/96,

judgment 30 November 1999). That ought not be taken to be an

exhaustive statement of what is required. Each case should be

considered in the light of its own facts and the circumstances may well

require even more extensive material in order to obtain leave to

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withdraw the admission."

[8]      The authorities make clear that withdrawing deemed admissions is not straight forward. One requirement is for an explanation on oath to be provided.

[9]      In her Affidavit, Ms Marsh deposes to the work being undertaken by Shine Lawyers and Counsel for Mr Stone in relation to his workers' compensation appeal in the period from 21 March 2014 until 4 April 2014. Following the hearing on 25 March 2014 of an adjournment application made by the Regulator, Ms Marsh obtained instructions from Mr Stone in relation to the Notice, arranged for him to attend medical appointments, and participated in telephone conferences with Counsel and various medical practitioners. Ms Marsh also attended a hearing in the Commission on 4 April at 2.30 pm. The Commission accepts that Ms Marsh was diligent in attending to matters relating to Mr Stone's appeals and obtained instructions in relation to his response to the Notice.

[10]   Ms Marsh also sets out Mr Stone's instructions in relation to the factual allegations contained in the Notice and provides brief explanations of the reasons Mr Stone does not admit certain matters. In addition, further reasons are given for disputing two of the factual allegations. The disputed factual allegations mostly concern matters that the Regulator asserts Mr Stone reported to various medical practitioners as well as matters relating to his medical and employment history.

[11]   A copy of the email sent by Ms Marsh to the Regulator was attached to her Affidavit. However, a copy of the message attaching the scanned document was not attached. That type of message shows the scan date and time and would have helped to substantiate the time the email was sent.

[12]   The circumstances in this case are that the email attaching the Response was sent within a very short time after the 14 days had elapsed. The Commission considers that it is incumbent on those acting for a client to ensure that all steps are taken within the required time frames in order to not prejudice their client's interests. Ms Marsh was aware of her obligations, acted to meet them and did not knowingly set out to avoid them. That, of course, is not a complete excuse for what occurred.

[13]   This is not a case where Mr Stone changed his mind after the Response was filed. His Response remains the same as that provided to the Regulator on 4 April 2014. The deemed admissions, if they are permitted to remain, will severely hamper Mr Stone's capacity to receive a fair trial on appeal where the live issues are whether his injury arose out of or in the course of his employment and whether employment is a significant contributing factor to his injury.

[14]    The trial dates for the hearing of the appeal in WC/2014/317 were vacated pending the payment of costs for an adjournment occasioned by Mr Stone. Upon paying those costs, new trial dates were set for February 2015. The Commission understands that preparation for the trial has to some extent been put in abeyance pending the payment of costs and the resolution of this application. In the circumstances the Regulator will not suffer any prejudice were leave granted to the Appellant to withdraw his deemed admissions to certain facts and instead rely on his Response.

[15]   In all of the circumstances I consider that Mr Stone is entitled to relief. The Commission has decided to exercise its discretion under r 49 of the Rules and grant the application to withdraw his deemed admissions to the facts alleged in paragraphs 2, 3, 4, 5, 9, 10, 11, 12, 13, 14 and 15 of the Notice to Admit Facts issued by the Regulator dated 21 March 2014.

[16] Costs are reserved.

[17] Order accordingly.
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Equuscorp Pty Ltd v Orazio [1999] QSC 354 [9].