Van Croonenborg v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 6

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Van Croonenborg v Simon Blackwood
(Workers' Compensation Regulator) [2014] QIRC 006
PARTIES:	Van Croonenborg, Jeffrey
(Applicant)
v
Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
CASE NO:	WC/2013/187
PROCEEDING:	Application for adjournment of proceedings
DELIVERED ON:	9 January 2014
HEARING DATE:	9 January 2014
MEMBER:	Vice President Linanne
ORDERS :	1. The adjournment is granted.
2. The Applicant is to pay the costs in the

amount of $7,381.20 to the Respondent.

3.  The Appeal not to be further listed for

directions or further hearing until the
costs have been paid to the Respondent.

CASES:	Industrial Relations Act 1999, s. 274 –
General powers of the Commission
APPEARANCES:	Mr M. Henry, Counsel instructed by Hall Payne Lawyers Mr P. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation
Regulator).

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2013 and only came to my attention on 6 January 2014 because of the Closure of the Queensland Industrial Relations Commission (Commission) over the Christmas period. The Applicant relies upon the Affidavit of Phillip Carlson in support of this application.

Essentially, the Applicant relies on two grounds for the adjournment: Firstly, the

decision of Counsel briefed by the Applicant, (notified to Solicitors for the Applicant

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on 17 December 2013), that he wished to renegotiate the terms of his agreement with the Solicitors because of the complexity of the case. Following receipt of that advice, Counsel then attended a conference with the Solicitor with carriage of the case and the Applicant's only medical expert, Dr Robertson, a Toxicologist on 19 December 2013. At the conclusion of that conference Counsel then confirmed that he was no longer prepared to act in the matter on a speculative basis. Solicitors for the Applicant then sought to find a replacement Counsel who would act for the Applicant and could appear at the hearing on 13, 14 and 15 January 2014. It was on this date that Solicitors for the Applicant corresponded with the Industrial Registry when they were unable to obtain a barrister that could meet those requirements.

That correspondence to the Industrial Registry relevantly provided as follows:

'Resulting from only receiving delivery of the Respondent's medical evidence on Thursday 12 December 2013 at 2.40 pm we respectfully request an adjournment of this matter as we have only today received our counsel's advice that we will require further medical evidence to properly advance the Appellant's matter before the Commission.

We seek an adjournment of not less than two months in which to obtain the additional medical evidence.'

There was no suggestion in that correspondence that Counsel had advised that he
would no longer act for the Applicant on a speculative basis.

That then raises the second ground on which the Applicant relies for an adjournment. At the conference on 19December 2013, Counsel formally advised Solicitors for the Applicant that additional medical evidence would be required before the matter could proceed to hearing.

The current medical evidence for the Applicant is a report from Dr Michael Robertson who has been described as an Independent Forensic Consultant and as a Toxicologist by Mr Henry, Counsel acting for the Applicant in the adjournment application. He apparently is not medically qualified. Counsel for the Regulator, Mr O'Neill, raised this fact in some detail during the s. 552A of the Workers' Compensation and Rehabilitation Act (2003) Conference (s. 552A Conference) which occurred on 30 August 2013. The Regulator submits that the Applicant's Solicitors were, at this time, put on notice about the medical evidence relied upon to prosecute the Applicant's claim for workers' compensation.

I have had the benefit of reading the transcript of that s. 552A Conference and can confirm that the Regulator outlined the issues it intended to rely upon in defending the Applicant's claim and queried the Applicant's reliance on a non-medical practitioner.

As at the initial hearing of this application on 7 January 2014, the Applicant has raised the necessity to get further medical reports prior to this matter being listed for hearing. I have been advised, in the course of hearing this application, that the Applicant now intends to obtain a medical report from a neurosurgeon should his application for an adjournment be successful.

The extent of the medical evidence to be relied upon by the Applicant should have been addressed well before 19 December 2013. The Regulator, at the s. 552A Conference on 30 August 2013, put the Applicant's Solicitors on notice that they were obtaining further expert evidence. On that occasion Mr O'Neill said:

' … Q-COMP will present expert evidence from a relevantly qualified expert to

provide evidence as to the effect of that sort of blood alcohol reading on a person's capacity to drive. And from previous cases I've been involved with, Commissioner, where relevant expert evidence has been called, the effect of even a blood alcohol of 0.08 is that you're somewhere between three to five times more likely to be involved in an accident and the risk of an accident increases

exponentially with the amount of the blood alcohol content reading…'

The Applicant's blood alcohol reading was in vicinity of 0.0179 at the time of the
accident.

Following the s. 552A Conference, the Regulator did seek to obtain further medical reports. The Regulator obtained a medical report from Associate Professor Robert Hoskins, a Toxicologist, and a medical report from Dr David Spain, a Consultant Emergency Physician. The report of Associate Professor Hoskins was dated 10 December 2013 and provided to the Applicant's Solicitors on 12 December 2013. The medical report of Dr Spain was dated 4 December 2014 and provided to the Applicant's Solicitors within a few days of the Regulator obtaining the report.

I will, reluctantly, grant an adjournment of the hearing of this appeal and vacate the hearing dates of 13, 14 and 15 January 2014. The adjournment will, however, be on the basis of the Applicant paying the Respondent's costs thrown away as a result of the adjournment. The Regulator has provided an Affidavit of both the Scale Costs and its actual costs thrown away by the adjournment. The Regulator's Claim on the Scale is as follows:

Item 5 (a)	Preparation for trial	2,505.00
Item 6 (b)	to settle special affidavit of	103.50
Leisha Shield
Item 6 (d)	Conference fees for Counsel	1,321.30
($181.00 x 7.3 hrs)
Item 6 (f)	Counsel's fees to appear at	1,120.00
hearing
Item 6 (g)	Counsel's refresher fee	1,500.00
($750.00 x 2 days)
Item 6 (j)	on an application in a	372.00
proceeding
(07.01.14 and 09.01.14)
Item 8 (b)	Attendance of clerk	852.00
($284.00 x 3 days)
Misc.	Expert witness fees – Dr David	2,201.00
Spain (cancellation $660). Dr Robert Hoskins (cancellation 1457.50).
Cassandra Jones ($83.50)
Misc.	Lay witness fees (72.45 x 5)	434.70

Total 10,409.50

As for preparation for trial and conferencing fees for Counsel, I have formed the view that the case that the Applicant is now likely to pursue will be quite different to the case presented to date and therefore much of the preparation for trial undertaken by the Regulator will not be required on a future hearing and preparation for a different case will need to be undertaken. In that regard, instead of the amount of $2,505.00 claimed by the Regulator for preparation for trial, I will allow an amount of $1,500.00. Instead of the $1,321.30 claimed for conference fees for Counsel I will only allow $900.00. I will allow Counsel's fee to appear at the hearing of $1,120.00 and one refresher fee for Counsel being $750.00. I will further allow the claim for $372.00 for Counsel's fee to appear at the hearings on both 7 and 9 January 2014 on this application. I will not allow the claim of $852.00 for the attendance of the Regulator's clerk at the hearing. I will, however, allow the costs of the expert witness fees which have been thrown away totalling $2,201.00 and the lay witness fees which have also been thrown away of $434.70. The Regulator is also entitled to payment for settling the affidavit of Leisha Shield of $103.50.

Thus the adjournment is granted on the payment by the Applicant (the Appellant in

the Appeal) to the Regulator of the following costs:

Item 5 (a) Preparation for trial	$1,500.00
Item b (b) To settle special affidavit of Leisha Shield	$ 103.50
Item 6 (d) Conference fees for Counsel	$ 900.00
Item 6 (f) Counsel's fee to appear at hearing	$1,120.00
Item 6 (g) Refresher fee for Counsel	$ 750.00
Item 6 (j) On an application in a proceeding	$ 372.00
Misc. Expert witness fees	$2,201.00
Misc. Lay witness fees	$ 434.70

The total amount to be paid by the Applicant/Appellant to Simon Blackwood
(Workers Compensation Regulator) as costs in the adjournment is $7,381.20.

Counsel for the Regulator asked for a period of fourteen/twenty-one days for the Applicant/Appellant to pay those costs. Instead of setting a time within which the Applicant/Appellant is to pay the $7,381.20 in costs, I order that the Appeal in WC/2013/187 not be listed for directions or further hearing dates until such time as the amount of $7,381.20 is paid to the Regulator.

Order accordingly.".

REPORT ON DECISION (as edited)

In giving her decision from the Bench on 9 January 2014, Vice President Linnane stated:

"The Applicant in this matter seeks to adjourn a hearing of the Appeal scheduled for

13, 14 and 15 January 2014. The Respondent in the matter is Simon Blackwood, the

Workers' Compensation Regulator (Regulator). The request for an adjournment was

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contained in correspondence from Solicitors for the Applicant dated 19 December